HABEAS CORPUS. 



489 



preme Court of New York, who had allowed a 

 writ of habeas corpus to produce the body of 

 ono Charles E. Hopson, and to which the pro- 

 vost-marshal had made the return prescribed 

 in the orders from the Provost Marshal-Gen- 

 eral's office, upon which return an attachment 

 was ordered to be issued, and a rule afterward 

 entered to show cause why the return should 

 not be deemed sufficient, the judge held the 

 return to be sufficient, and sustained the cor- 

 rectness of Mr. Whiting's opinion. On this 

 decision being removed to the general term of 

 the district, the court were equally divided ; 

 Judges Bacon and Morgan decided that the 

 court had no jurisdiction while the proclama- 

 tion was in force, Judges Allen and Mullin that 

 it had. 



Judge Leonard, of the Supreme Court of New 

 York, in a case in New York city, fully con- 

 curs in the conclusions of Judges Paddock and 

 Mullin. A person named Barrett was held by 

 Provost-Marshal Nugent as a deserter. It was 

 claimed on behalf of Barrett that he was never 

 legally enlisted, and therefore could not desert. 

 A writ of habeas corpus, issued, which the pro- 

 vost-marshal declined to obey, on the ground 

 that Barrett was only amenable to military 

 law. Counsel then applied for an attachment 

 against Nugent for not obeying the writ, and 

 Judge Leonard decided the motion. 



The judge in his opinion held that the mil- 

 itary authority was subordinate to the civil ; 

 that the case of Ableman vs. Booth was essen- 

 tially different from this, as Booth was in cus- 

 tody on process by a United States court, which 

 Barrett was not ; that this was a question not 

 sought for by the court, and it must be decided 

 according to law, not in view of expediency, 

 and that this inquiry was not as to whether 

 Barrett was a deserter or not, but an enquiry 

 as to whether he was legally enlisted. The 

 judge therefore concluded that Marshal Nugent 

 must produce the body of Barrett. 



In the order granted by Judge Leonard, in 

 accordance with his opinion, the following lan- 

 guage was used : 



Ordered, That the person of the said Michael Barrett 

 be produced by the respondent, Robert Nugent, in this 

 court at 10 o'clock of the day next after the service of 

 a copy of this order, or in default, that an attachment 

 issue against the said Robert Nugent. 



Judge Chapman, of the Supreme Court of 

 Massachusetts, ordered the release of a person 

 held by the provost-marshal, the marshal in 

 that case making the return directed by the 

 provost-marshal-general. 



The question arising in all these cases was as to 

 the jurisdiction of the State courts. The United 

 States courts exercised the right to issue the 

 writ in cases of persons held under the Enrol- 

 ment Act as deserters, and of minors enlisting 

 without any objection being urged to their juris- 

 diction, Judge Leavitt, of Cincinnati, discharg- 

 ing a minor, who, it was alleged, had enlisted 

 without his parents' consent. Judge Hall, U. S. 

 District Judge of the Northern District of New 



York, discharged a minor named Jordan, who 

 had enlisted, holding that the signing of the en- 

 listment paper, and taking the oath which it 

 contains, do not preclude the recruit or his 

 parent from showing his true age, and if his 

 age is shown to be less than eighteen years at 

 the time of his enlistment, and that the parent 

 had not consented thereto, he might be dis- 

 charged from the service on habeas corpus. The 

 denial of jurisdiction in the State courts had 

 proceeded from military orders; but on the 

 15th of September the President issued the 

 following proclamation : 



By the President of the United States, a Proclama- 

 tion : Whereas, the Constitution of the United States 

 has ordained that the privilege of the writ of habeat 

 corpus shall not be suspended unless when, in cases of 

 rebellion or invasion, the public safety may require it, 

 and whereas a rebellion was existing in March 3d, 1863, 

 which rebellion is still existing, and whereas, by a 

 statute which was approved on that day, it was en- 

 acted by the Senate and House of Representatives of 

 the United States in Congress assembled, that during 

 the present insurrection, the President of the United 

 States, whenever, in his judgment, the public safety 

 may require, is authorized to suspend the privilege of 

 the writ of habeas corpw in any case throughout the 

 United States or any part thereof; and whereas, in 

 the judgment of the President, the public safety does 

 require that the privilege of said writ shall now be 

 suspended throughout the United States, in cases 

 where, by the authority of the President of the United 

 States, military, naval, and civil officers of the United 

 States, or either of them, hold persons under their cus- 

 tody, either as prisoners of war, spies, or aiders or 

 abettors of the enemy, or officers, soldiers, or seamen, 

 enrolled, drafted, or mustered, or enlisted in, or belong- 

 ing to the land or naval force of the United States, or 

 as deserters therefrom, or otherwise amenable to mil- 

 itary law, or to the rules or articles of war, or the rules 

 and regulations prescribed for military or naval ser- 

 vice by the authority of the President of the United 

 States, or for resisting a draft, or for any other offence 

 against the military or naval service. 



Now, therefore, I Abraham Lincoln, President of the 

 United States, do hereby proclaim and make known to 

 all whom it may concern, that the privilege of the writ 

 of habeas corpus is suspended throughput the United 

 States in the several cases before mentioned, and that 

 this suspension will continue throughout the duration 

 of said rebellion, or until this proclamation shall, by a 

 subsequent one to be issued by the President of the 

 United States, be modified and revoked; and I do 

 hereby require all magistrates and other civil officers 

 within the United States, and all officers and others in 

 the military and naval service of the United States, to 

 take distinct notice of this suspension, and give it full 

 effect, and that all citizens of the United States are to 

 conduct and govern themselves accordingly, and in 

 conformity with the Constitution of the United States, 

 and the laws of Congress in such cases made and pro- 

 vided. 



In testimony whereof, I have hereunto set my band, 

 and caused the seal of the United States to be affixed, 

 this 15th day of September, in the year of our Lord 

 1863, and of the Independence of the United States of 

 America the 88th. 



By the President, A. LINCOLN. 



WM. H. SEWARD, Secretary of State. 



On the 17th of September the Provost-Mar- 

 shal-General published this circular : 



WASHINGTON, September ISto, 1S6& 



The Secretary of War has ordered the act of Congress 

 relative to the suspension of the writ of habeas corpv-s, 

 and the proclamation of the President based upon the 

 same, to be published for the benefit of all concerned ; 



