In the Matter of Keeler

​ ​to the laws of the United States, and on this ground a writ of habeas corpus was prayed to be directed to the commanding officer at Fort Washita, requiring the body of George B. Keeler to be produced, together with the cause of his detention, to undergo and receive what the judge should consider concerning him, in the premises.

The application was verified by the affidavit of the applicant, purporting to be sworn to before a justice of the peace of the State of New York, but was not otherwise authenticated, nor his official character otherwise proved.

S. H Hempstead, for the applicant.

OPINION OF THE COURT.—The judicial act of 1789 (1 Story, L. U.S. sec. 14, p. 59) authorizes all the courts of the United States to issue writs of scire facias, habeas corpus, and all other writs not specially provided for by statute which may be neces­sary for the exercise of their respective jurisdictions and agree­ able to the principles and usages of law. And it is expressly provided by the same act, that either of the justices of the supreme court, as well as judges of the district courts, shall have power to grant writs of habeas corpus for the purpose of inquiring into the cause of commitment, with the restriction only that writs of habeas corpus shall in no case extend to pris­oners in jail, unless where they are in custody under or by color of the authority of the United States, or are committed for trial before some court of the same, or are necessary to be brought into court to testify.

In the case of Tobias Watkins, 3 Peters, 201, it was said by Chief Justice Marshall, in delivering the opinion of the court, that "no law of the United States prescribes the cases in which the writ shall be issued, nor the power of the court over the party brought up by it." The term is used in the constitution as one which was well understood, and the judicial act authorizes this court and all the courts of the United States, and the judges thereof, to issue the writ "for the purpose of inquiring into the cause of commitment." This general reference to a power which we are required to exercise without any precise definition of it, impresses on us the necessity of making some inquiries into its use according to that law which is in a con­siderable degree incorporated into our own.

​The writ of habeas corpus is a great prerogative writ known to the common law, the great object of which is the liberation of those who may be imprisoned without sufficient cause. It is in the nature of a writ of error to examine the legality of the commitment. 1 Chitty, C.L. 180. No doubt exists respecting the power, and the question is, whether such a case is presented as ought to call for its exercise.

The act of congress fixing the military peace establishment of the United States of March 16, 1802, provides "that no person under the age of twenty-one years, shall be enlisted by any officer, or held in the service of the United States, without the consent of his parent or guardian or master, first had and obtained, if any he have," and the act then imposes a pecuniary penalty on the enlisting officer. 2 Story, Laws U.S. sec. 11, p. 832.

Such an enlistment being illegal, a minor is entitled to be discharged on the application of his father or guardian or next friend, on a showing satisfactory to the court or judge. It is an illegal confinement of his person, and he may be released on habeas corpus without any application having been first made to the war, or any other, department of the government for his discharge. United States v. Anderson, Cooke, Rep. 143; Matter of Ferguson, 9 Johns. 239; Matter of Carlton, 9 Cowen, 471; Commonwealth v. Gusting, 11 Mass. 67; Commonwealth v. Harrison, 11 Ib. 63; Matter of Roberts, 2 Hall's Law Journal, 192; Huster's case, 1 Johns. Cas. 136.

In some of these cases the power of State courts and judges over the subject is denied, but in all of them the jurisdiction of the courts and judges of the United States to interfere in a case like this, is held to be complete and unquestionable, and I express no decided opinion as to whether the State courts have or have not jurisdiction, although the inclination of my mind would lead me to adopt the negative of that proposition, for the reasons so strongly urged by Chief Justice Kent in Ferguson's case, 9 Johns. 239, backed by considerations peculiar to the jurisprudence of the courts of the United States, and which would prevent their interference with State authority on the one hand, and should prevent a like interference on the part of