Year: 1863


In the Supreme Court for the Judicial dsriot oompss
ps 'ne city OF New York, on Saturday last Judge LEO
sARD delivered the opinion Of the Court ia the case of
dessrter named Michael Barrett requiring Provost Mar
sha Nugent TO produce the body Of the prisoner We
give the decision in full, reported in the New York
Evening Post


Ia The Matter Of Michael Barrett, an Infant SC Leo
nard, The PioVot Marshal, Col Nugant claims to
hold the infant as deserer from the Thirteenth Raoi-
ment New York civary and als0 substitute dnly ms
tered into regiment Massachusetts, and refuses To pro
duee him IN court upon habeas corpus


1t is stated in the application aud ia not denied in thu
return of the Marshal that the infant was under eighteen
years OF age at the time of his enlistment in the
setts regiment, some three weeks since


The cau Of the Provost Marshal is to hold the infant
by virtue OF his authority such officer derived undur
laws of the Uuited States


Persons under eighteen wears cannot ba snsd or snh
Ii must be conceded that martial law has never bsen
Procialmed ~ New York aud the civil courts the
The military arm is subordinate here to the civil au-
th0rty.


The case of Abeman agant Booth has been referred TO
as Judicial authority for the ground taken by the Provost
Marshal In that the Unisd States Marshal could
not have held Booth without process vf law The autho
ry of law referred to by Judge rsney embraced that
fact.


The authority Of the State to REQUIRE the produc
on of prisoner when the commitment has been
made by the direction of Judge of the Uated States





have be uGform for years before the decision iu Abel
man against Booh and since to discharge prisoners
held on process from the United States cours where
had been commitment under it by direction Of Judge
oil the Federal Courts An arrest merely the holdDg
in custody process from Federal Court does not ous5
the Stale courts of jurisdcton to inquire into the deten
ton on habeas corpus. Judge Taney cannot bs under
stood rs oycrrung such authorities practice when the
authorities are not mentioned The language of Judge
aney must be understood to apply the facts Of the
before the court at the time Booth was in custody on
conviction for criminal offence The marshal there had
the process of the Federal Court after conviction That
constituted the authority of law for holding the prisoner
referred TO by Judge Taney The State court had then
no jurisdiction to grant habeas corpus for his pro-
duction if those facts appeared


There s ground here to insist that Barrett has been
committed that he is held by virtue of any pro-
cess decree, or Judgment Of court Of the United States
any court Any captain Of military company in the
service of tho General Government could CLAIM with equal
proprety that no held the under his command by vr
tue OF the authority Of the United States and refuse to
submit to inquiry habeas corpus whether any of his
men had been duly enlisted lawfully held by him.
The liberty Of every citizen of the State is under tue
protection OF the shield of this writ by the Constitution of
the United States as well that of the State Of New
York No conflict Of Jurisdiction b,tween civil courts of
the State and General Government arises
habeas corpus unless psouer has been committed by the
direction of FEDERAL Judge


There Is no military court in this whose jurisdc-
ton is nerfered with, it will be necessary to con-
slider question Of that character


1t has been suggested that decsisn adverse to the
claims of the Provost Marshal bring on an unpleasant
conflict of authority This question soughs for by
the court 1t brought into and must be decided
according to the law If the land and by any rule of
sxpedency Expedlency rule that varies with times
and circumstances Ii might require the to recall
next week decision made to day, and thus the law be
brought into contempt
While the authority of the courts ia upheld by the re-
spect of the public, civil and military in community
eminenty loyal to the Government there be fear
that the law will not te faithfully administered When
the courts to be Independent and seek for rules of
expedency nsead of law it may be time for alarm both
to civ and military authorities.


This is not an inquiry whether Michael Barrett ia de-
serter or not the inquiry is whether he lawfully
became soldier and whether heis lawfully the custody
of an officer of the Federal Government.


The facts stat by Col Nugent cannot prevent this
inquiry The soldier must be produced else the mill
ary authorities must to prevent the admuistra-
ton of the law of the land.


My own duty consider to be clear An order may Be
enered that Col Nugent produce Barrett o'clock A.
of The nert business day after receives nsiice of this
order