In the Matter of Keeler

by the U.S. District Court for the District of Arkansas

United States District Court for the District of Arkansas

Hempst. 306

In the Matter of GEORGE B. KEELER

1. By the judicial act of 1789, the courts and judges of the United St.ates are expressly authorized to issue writs of habeas corpus, and reference must be made to the common law to ascertain the nature of that writ. 3 Peters, 201.
2. 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.
3. The power of State courts and judges to issue this writ under the laws of the United States doubted.
4. The writ of habeas corpus does not issue, as a matter of course, on application, and if the defect or illegality does not appear, an affidavit should be made, stating the circumstances under which the person imprisoned is entitled to the benefit of the writ.
5. The writ will not be issued when it appears on the showing of the applicant that he is not entitled to its benefit. Examples given of the writ being denied.
6. The power to issue the writ and enforce obedience to it, being vested in the courts and judges of the United States, they should promptly interfere in behalf of an injured party, when a proper case is presented.
7. The military is subordinate to the civil authority, and the privilege of the writ of habeas corpus cannot be suspended unless when in cases of rebellion or invasion the public safety may require it.
8. As interfences with the military authority are regarded with jealousy, a strong case should be made out, and all the requisites of the law substantially complied with, before the writ is awarded against a military officer.
9. The enlistment of a minor under twenty-one years of age, without the con­sent of his parent or guardian, in the army, is illegal, and such minor will be discharged at the instance of his parent, guardian, or next friend, on proof being made thereof before any court or judge of the United States.
10. Applications of this nature must be supported by oath, taken before some competent officer of whom judicial notice will be taken, or who is shown to be such by proper evidence.
11. The writ will not be granted where the application is sworn to before a justice of the peace of another State, and there is no evidence of the official character of such justice.
12. The courts and judges of the United States cannot take judicial notice of the justices of the peace of another State.

April, 1843.—Before the Honorable Benjamin Johnson, dis­trict judge at chambers.

Habeas corpus. The application of Lewis Keeler, repre­senting himself to be the father of George B. Keeler, was pre­sented to the Honorable Benjamin Johnson, district judge at chambers, in vacation, stating that George B. Keeler was his son, and had, without his permission or consent, enlisted as a soldier in the 2d Regiment of United States Dragoons, and was then in Company A. of that regiment, at Fort Washita; in service; and after stating the time and place of enlistment, it was alleged that the said George B. Keeler was a minor, under twenty-one years of age, and that his enlistment was contrary 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.