In the Matter of Keeler.
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
