HABEAS CORPUS. 



HARCOURT, O. V. 



491 



nient.) In regard to '.he other cases, where the allega- 

 tion is that the parties are not enrolled or drafted, ne 

 promised to give his decision the next morning. 



By implication it would seem that Judge 

 Cadwalader did not assent to the first point, and 

 was of opinion that Congress had the right to 

 delegate the power of suspending the writ to 

 the President. A New York paper of Septem- 

 ber 17th says : 



Considerable excitement has been occasioned in 

 legal circles of this city and Brooklyn by the President's 

 proclamation suspending the privilege of the writ of 

 habeas corpus during the continuance of the war. For 

 several days past the Judges of the State Courts 

 have been applied to for writs to discharge recruits 

 and young men who had enlisted without the consent 

 of their parents, while under age. Frederick A. War- 

 ing, a young man from Brooklyn, was brought up be- 

 fore Judge Betts yesterday on a writ of habeas corpus. 

 This morning Mr. Slossom, for the Government, inter- 



osed the proclamation of the President of the United 

 tates, suspending the privilege of the writ. Mr. 

 Waring, the uncle of the relator, contended that as the 

 young man was yesterday in the custody of the Judge, 

 before the proclamation of the President was known 

 judicially, therefore, the case must be proceeded with 

 as if no such proclamation had been issued, suspending 

 the privileges of the writ. The Judge differed in 

 opinion with Mr. Waring, but held the matter under 

 consideration. 



In the Supreme Court, Judge Clerke had the cases 

 of James Mehan and David C. Doremus, who claimed 

 to have been illegally enlisted by Colonel Jenkins^ 

 brought up before him on writ of habeas corpus by ad- 

 journment. His Honor said that in view of the procla- 

 mation of the President of the United States suspending 

 the writ of habeas corpus, the prisoners must be re- 

 manded and the writs discharged. The boys went off 

 in custody of the sergeant ana the guard. 



In the case of John Baldinger, Judge Betts, 

 of the U. S. District Court, said that the fact 

 whether this man is improperly in custody or 

 not is the very question which the Court is, 

 by the proclamation, not allowed to inquire 

 into. 



The basis of the argument appears to be that the 

 Government cannot compel an infant to serve. I do 

 not concur in that view. Our form of government has 

 as much right to call to the field every man capable of 

 bearing arms as any absolute monarchy on the face of 

 the earth. The return states that he is' detained as a 

 deserter. It is a high crime for any one to desert his 

 colors. The question occurs where he shall be tried. 

 If he was brought before any of the courts of the 

 United States he could not be tried, and the only tri- 

 bunal before which he can be heard is that of the 

 Provost Marshal. I see nothing in this case to induce 

 me to take it out of the jurisdiction in which it is 

 properly placed by the proclamation, which is conclu- 

 sive on all the courts, and I have no power to inquire 

 into the case of any man who is a soldier and under 

 the military authorities. I have no more authority to 

 act under the writ than I would have to issue a writ. 

 This writ is, therefore, dismissed and the relator is 

 remanded to the military tribunals. 



On Saturday morning, Oct. 26th, Judge 

 Sprague gave a decision in the United States 

 District Court, Boston, in the case of the five 

 persons held for military service by General 

 Devens, and who had asked for writs of habeas 

 corpus, one claiming to be a felon, one an alien, 

 and the three others minors. It was urged by 

 the counsel for the defendants that the Presi- 

 dent's proclamation suspending the writ of 



habeas corpus did not apply to such cases. The 

 judge concluded his opinion by saying that the 

 objections made by the counsel in these cases 

 to the application of the proclamation cannot 

 prevail, and he was precluded from further 

 inquiry by the proclamation, and if any of the 

 parties before him were entitled to relief they 

 must seek it from the officers or the tribunals 

 able by law to grant it. The prisoners were 

 then remanded to the custody of Gen. Devens, 

 to be taken back to the camp at Long Island. 

 ' A writ of habeas corpus, issued by Judge 

 Shipman, of the U. S. Circuit Court, upon Pro- 

 vost marshal Pardee at New Haven for the 

 body of George Howland, an alleged deserter 

 from the Sixth Connecticut volunteers, was 

 returnable the next day. A return was accord- 

 ingly made, setting forth that the President's 

 proclamation suspending the ha~beaa corpus, 

 having j nst been received, the marshal found 

 it necessary to decline giving up the prisoner. 

 The judge accepted the return, and suspended 

 further proceedings in the case. 



It was stated that the War Department had 

 made a modification of the President's procla- 

 mation suspending the habeas corpus act, so that 

 hereafter the civil courts would be allowed to 

 take cognizance as heretofore of all cases for 

 the discharge of minors improperly enlisted 

 and illegally detained by the military authori- 

 ties. No other change or modification was 

 made in the proclamation during the year, so 

 that at the end of 1863 the privileges of the 

 writ were suspended as to all persons held by 

 military authority except minors illegally 

 enlisted. 



HARCOURT, Admiral OCTAVITJS VEENON, 

 an officer in the British navy, born December 

 26th, 1793, died at Swinton Park, Yorkshire, 

 August 14th, 1863. He was a son of Dr. 

 Edward Vernon, late Archbishop of York 

 (who took the name of Harcourt, in 1831, on 

 his coming to the estate of the last Earl 

 Harcourt). He entered the navy in 1806 as 

 midshipman of the "Tigre," under Captain 

 B. Hallowell, in the expedition to Egypt and 

 Alexandria, 1807 ; and saw much boat service 

 on the Nile. He was present in the same ship 

 at the blockade of Toulon, and destruction of 

 the French line-of-battle-ships " Robuste " and 

 "Lion," in 1809; and on the promotion of 

 Captain Hallowell to his flag, followed him 

 into the " Malta," and continued serving with 

 him on the coast of Spain, and at the siege of 

 Tarragona, until made a lieutenant in 1814. 

 He was then appointed to the " Mulgrave," 

 was transferred to the " Amelia," and, after 

 the battle of "Waterloo, was sent with a major 

 of the Tuscan army to summon the town of 

 Porto Ferrajo. In 1820 he was promoted to 

 the rank of Commander, serving successively 

 upon the " Drake," " Carnation," " Britomart," 

 and "Primrose," the latter vessel on the West 

 India station; from which he returned to Eng- 

 land with a freight of more than a million dol- 

 lars ; and, after acting as aide-de-camp to the 



