
    The State against David Brearly esq., col., and Henry Berryman esq., lieut., in the army of the United States. 
      
    
    on habeas corpus.
    ON the 23rd of April 1819, Samuel Anderson, as the next friend of Isha Davidson, presented to Justice Southard, a petition, setting forth in substance, that the said Davidson, was in the custody of the defendants, under a pretence of having enlist*ed him, as a soldier in the armies of the United States, on the 8th of January 1819; that he was eighteen years old on the 3rduf April 1819; that he was born of poor parents, and had been bound out to said Anderson as an apprentice, by B. Hendrickson, overseer of the poor of the township of Trenton, by and with the advice and consent of W. Potts and II. M’Neely esqrs., two of the justices of the peace, according to the law of New-Jersey, by indenture, dated the 9th of September 1811; that no consent to the enlistment, was ever obtained from the overseer or justices, or any of them, either before, at, or after the enlistment; that the consent of no one, save that of Davidson’s, into which he was inveigled, was ob-previous to the enlistment. To this petition was annexed, an affidavit of said Anderson, “that the facts stated in the petition, according to the best of his knowle(jge an¿ belief, are true.”
    Upon this petition and affidavit, Justice Southard, granted a writ of habeas corpus, directed to the defendants. To this writ Col. Brearly returned in substance, that the said Davidson, on the 8th of January 1819, voluntarily enlisted as a soldier in the army of the United States, for the period of five years, unless sooner discharged by proper authority, at the same time representing himself to be aged twenty-one years; that afterwards, on the ‘20th of February 1819, the said Anderson, pretending to be his master, consented to the said enlistment by writing under his hand, testifying his free will and consent that said Davidson his indented apprentice, to enlist in the service of the United States, and that by virtue of such enlistment, he was held &c. nevertheless the body of the said Davidson, he had ready as commanded &c.
    Annexed to the return, was the original enlistment, in the usual form, and bearing date on the day stated; on the back of it was endorsed. Trenton, N. J. 20th February 1819. I Samuel Anderson, of Nottingham, Bwlington county, N. J. do hereby give my free will and consent for Isha Davidson, an apprentice to me, to enlist into the service of the United States. Signed Samuel Anderson, (seal) Signed and sealed in presence of Robert Lyman, William Cherry.
    
    After that return, Anderson filed a reply, protesting that the enlistment was void; and stating that he had forewarned the recuiting sergeant, not to enlist Davidson as he was a minor and his *apprentice; and that afterwards he had been discharged, both by the military officers, and by an order or decree of the District Court of the city and county of Philadelphia.
    
    On the 3rd of May, the petitioner appeared, and the defendants produced the prisoner. The petitioner, offered in evidence, an indenture of apprenticeship, which was executed in due form of law, and was such as was stated in the petition. He also offered a record, certified according to law, from the District Court of the city and county of Philadelphia, by which it appeared; that on 18th March 1819, before said court, Anderson in behalf of ' ' Davidson, presented a petition setting out, ‘‘that Davidson was deprived of Iris liberty by lieutenant Andrews, com" manding officer of Fort Mifflin, and that without any just or reasonable cause,” and praying for a habeas corpus. And he made oath to the truth of the facts stated in his tion, and that Davidson was not detained for any criminal or supposed crimiual matter, to the best of his knowledge and belief. Whereupon a habeas corpus was ordered and issued, returnable immediately. To this writ lieutenant Andrews returned, that Davidson was sent to that post, on the 20th February 1819, and was detained, in consequence of being an enlisted soldier in the 7th regiment United States’ infantry. The record adds, “and now the 20th day of March, A. D. one thousand eight hundred and nineteen, after hearing, the said Isha Davidson is discharged from Iris enlistment.”
    It was at the same time agreed by the parties, that Davidson’s age was the same as is stated in the indenture; that in tire month of February last past and before the enlistment, the recruiting sergeant brought him to a surgeon to bo inspected, as a person who was about to enlist; that Anderson, his master, followed and claimed him as his servant; whereupon the surgeon did not inspect nor certify, butiro was immediately dismissed; that after the enlistment, viz. between the 12th and 20th February, Anderson called on lieutenant Lyman, who commanded the recruiting rendezvous, and again claimed him, and requested his dicharge; whereupon lieutenant Lyman did discharge him. That after this, viz. on the 20th February, the master, Anderson, voluntarily returned to the recruiting rendezvous with Davidson, delivered him to lieutenant I/yman, and signed his consent, wdiich is endorsed on the back of the enlistment. After this, (the time *not precisely ascertained,) Davidson left the recruiting rendezvous and was found in his master’s house. Lieutenant Lyman declared to his master, that he would take him as a deserter, and sent men for that purpose; but he also declared that if Davidson was peaceably delivered up, he would produce him, provided the master chose to contest legality of the enlistment and holding'. Whereupon ;he wag delivered to lieutenant Lyman, and this habeas corpus brought. Upon this state of facts appearing, the judgment on the writ was, by the consent of the parties, adjourned, and justice .Southard certified the whole matter the Supreme Court, then about to sit, that judgment thereon might be had, at bar.
    
      L. H. Stockton appeared for the prosecutor of the writ. Wall for the defendants.
    
      L. H. Stockton argued;
    1. By the statute of New-Jersey, Pat. 26, sec. 18, the overseers of the poor were made guardians of poor infants, and as guardians, authorised to bind them by indenture. 2. That the act of congress of the 16th of March 1802,.which was referred to by the act of 1815, fixing the peace establishment, requires that the consent of the parent, guardian, or master, should be first obtained, before a minor could be enlisted. The consent of the parent was first to be had, then of the guardian. . In this instance there was no parent to look to; and the statutory guardians had given no consent. The enlistment was therefore void, not voidable, and no subsequent consent could make it good. 3. The discharge in Philadelphia has already once relieved him from the unlawful imprisonment, and ought to have its operation here.
    
      Wall.
    
    This court has no jurisdiction. The United States is a party. 1 John. Ca. 136. 2 Hall’s L. Jour. 192. 9 John. 239. 1 Mason 86. 2. The enlistment is not void. By the statute of 1809, and ■ the rules and articles of war which are referred to in the statute, it is manifest, that an infant under eighteen years may be enlisted, but is entitled to his discharge if the consent be not obtained-This consent may be of the parent, master, or guardian, in the disjunctive. The person whose consent is- to be obtained, is the one entitled to the service. 1 Mason 72. This consent may be obtained after the enlistment, and will confirm and make it binding. 3. The discharge in Pennsylvania was altogether ex parte, even the enlistment was not and could not be there. It is manifest too, that the master concealed from the court, the consent which he had given. The court also go too far, they discharge not only from the imprisonment, but from the enlistment also.
    
      L. H. Stockton in reply,
    insisted that jurisdiction in cases like this, had never been surrendered, and therefore remained to the states. 5 art. and 9 & 10 amend, const. U. S. 5 Bin. 385. That the contract here was void; it was against the infant and not for his benefit; and the guardians, whose power by the statute is complete, never consented. 6 Bac. 377, stat. let. 9. 1 Mason 82.
    This case was presented for consideration at the close of the term. The court looked into it, and directed Justice Southard to pronounce the judgment.
    
      
      
         Bruen vs. Ogden. 6 Hal. 382. State vs. Zulich, 5 Dutch. 409. In matter of Troutman, 4 Zab. 634.
      
    
   SouTHAitn J.

I am directed to deliver the opinion of the court, and to waive the question of jurisdiction, as one upon which it is not necessary, in this case, to decide. In doing this, however, without entering into any argument upon the subject, I must individually remark, that the question is of no ordinary importance ; and I think it will require, in me, a great struggle both of feeling and judgment, ever to arrive at the point, where I shall be prepared to deny the jurisdiction of the state, and say, that she has surrendered her independence, on questions like this; that her highest judicial tribunals, for such purposes, is incapable of inquiring into the imprisonment of her citizens, no matter how gross or illegal it may be, provided it be by agents of the United States, and under colour of their laws.

There are, indeed, cases of daily occurrence, in which the citizens of the state are parties, but of which we have not jurisdiction. They are those which originate from, and depend altogether upon the nature, character, and powers of the general government, and which would not have existed without its formation : such, for example, as relate to its revenue. These subjects, belonging, in all respects, exclusively to the United States, the state or its agents cannot judge concerning them, unless the power be expressly granted by the constitution, to which the has given its assent. There are other questions, where the state and federal courts both have jurisdiction. are such as existed, and were the subjects of state cog'nizance and judicial notice, before the *formation of the general government, and are given to the United States, altogether without words of exclusion used in applif^e state. They are possessed by the federal courts, because expressly given; they are retained by the states, upon the impregnable ground that they have never been surrendered. The present appears to me to be a case' where the right of jurisdiction did exist in this court, in full, ample, and complete extent, and it must, therefore, still exist, unless surrendered by clear, explicit, and indubitable grant. It is a right of judgment upon habeas corpus; it is a question of imprisonment or release of the citizen. When and how were that right and question, the dearest to the citizen ; relating to the highest duty of a government, to the proudest attribute of sovereignty; given up and surrendered ? Have we lost the jurisdiction, because we cannot construe and determine the extent and operation of acts of congress? We are often compelled to construe them ; they are our supreme law when made in conformity with the constitution. Is it because the United States is a party ? How does she become a party on such a question? Is she a party for the purposes of despotism, whenever a man who holds a commission from her, shall, without legal authority, or in violation of her own statutes, injure, imprison, and oppress the citizen ? Surely not. Is it because the United States judges have jurisdiction. Thejurisdiction of one does not exclude the other, unless expressly and in words so ordained and ordered. To my mind, therefore, under its present impressions, there is no real difficulty on this part of the case. The power of this court, in rescuing the citizens from unlawful imprisonment, is without limit from any of these sources; and I do not see how it can be otherwise, so long as any portion of sovereignty remains in the state. But I have merely suggested these ideas, because the subject is deeply important, and I did not feel willing to give the assent which would seem to arise from silence, to the doctrine that jurisdiction was not in this court, upon this question. These suggestions, however, are to be regarded as my own, the opinion of the court resting on other grounds.

The facts in the case are these. Isha Davidson, is a child of poor parents, and was bound out, under our statute, by the overseers of the poor; before he was eighteen years old he left his master, without his consent, and enlisted, and received the bounty and clothes which are always given on the enlistment. His mas*ter claimed him from the-officer under whose command ho was, who surrendered him, taking, it is understood, security for the bounty and value of the clothes. After this, the master, of his own will, without any interference on the part of the officers, returned in company with Davidson, and freely surrendered him, upon the enlistment which had been made, and confirmed that enlistment as far as he could, by endorsing his consent upon it, and receiving the security which he had given for the bounty. Davidson was removed to Fort Mifflin; an application made for a habeas corpus in Philadelphia, and Davidson adjudged to be freed from the imprisonment complained of. On his return with his master, he was here again taken possession of by the officer, and this occasioned the issuing of the present writ.

In looking into the facts, it is very obvious that the conduct of the master has not been such, as to excite any feeling, on the part of this court, in his favour. If he loses the service of his apprentice, he must charge the loss to his own conduct. It is also obvious that the discharge in Philadelphia, furnishes no impediment to the investigation of the case here. The decision of the court there, could in no possible respect, bind this court, and close its inquiry on this subject. Its opinion may have been correct, yet a contrary opinion may be equally correct here and at this time. Its inquiry and command must be bounded by the state, in which it sat, and although the imprisonment may have been unlawful there, yet another state of facts may have occurred, which will render it lawful here. It is true the judgment of that court purports to be not only a discharge from the imprisonment, but from the enlistment also; but it is not perceived, how upon, the habeas corpus, the court can go the confinement, which is the great and sole object of the writ. Nor can we see what evidence was offered, in order to determine whether the whole case was exhibited, or whether we are called on to form a judgment upon a totally different case. Were we to judge alone from the record, or from that, connected with the admissions of the parties, even the enlistment itself was not shewn, nor was it at all proven, that the master had at any time given his consent. It is believed that these facts were concealed. But be this as it may, we do not apprehend that that record impedes our inquiry.

The right of Isha Davidson to a discharge, depends upon the *proper construction of the acts of congress fixing and regulating the military peace establishment of the United States. They provide for the enlistment of persons between the ages of 18 and 35, and 5 feet 6 inches high; but the regulation as to height and age, is not to extend to musicians nor to those soldiers who re-enlist into the service. And “ no person under the age of twenty-one years shall be enlisted or held in the service without the consent of his parent, guardian or master) first had and obtained, if any he have.” In the construction of these provisions we must not lose sight of three ideas. 1. That the power to raise armies has' been expressly granted to congress. They have full and entire control over it. What they enact therefore on that sub-just, is to be liberally construed. 2.- We are not to regard the employment or profession of a soldier as unprofitable or dishonourable, or in any way injurious to the citizen. Whatever may be our private feelings, when looking into an act of congress making provision for the creation and support of an army, we are not permitted to regard it, in an unfriendly or unfavourable light. So far as relates to the import of the laws and the objects of the government, it is to be esteemed both a profitable and reputable profession. No inference therefore is to be made in favour of the discharge of an infant, because the enlistment is against him and not for his benefit. 3. The provisions of the law authorise the enlistment for musicians, of persons under 18 years. There is but one form of enlistment ever provided or used, under the laws, or the rules and articles of war; and as persons are enlisted under for musicians, and all are enlisted under the same form, it must be shewn that the object here was not to make him a musician. We do not presume and infer this. It must be proved. But we are, in this case, left without information upon the point.

The result of these ideas is, that an officer may enlist a person under 18, and the enlistment is not void, as against law and the interest of the infant: it is voidable only, and that by those who have a right to complain. He may be enlisted, but he cannot be held, after it is shewn, that some one has a right to complain of his detention.

The persons whose consent is pointed out as necessary, are the parent, the guardian or the master. But is the consent of all necessary ? Certainly not, if the ideas before suggested, or the phraseology of the law, be well considered. These persons are *named in the disjunctive; the business is regarded as honourable; the only thing which any one is considered as losing, is, the service of the person enlisted. The person entitled to that, is the only one whose consent is to be obtained. The want of the master’s consent therefore, where there is a master who claims the service, is the only one which can avoid the enlistment. He is the only person who can claim the discharge. By whom then can the release of Isha Davidson be demanded ? Not by himself. So far as he can, he has more than once consented, and as far as I perceive, even now consents; and, in no respect does he suffer wrong. By his parents? He is the child of the public. I do not know that he has parents living. If he have, they long since gave up all control over him. By the guardians ? They have discharged their duty in disposing of and binding him, and they lose nothing by his change of situation. By the master ? He was entitled to the service ; his consent ought to have, been obtained ; and not having been, the enlistment was voidable if he demanded his servant. But he alone can make the demand; he alone can avoid the enlistment. Can he now do it ? He has in the most solemn and voluntary manner given and subscribed his consent. He thus ratified and rendered valid an act which he might have avoided, and to validity of which his consent only was wanting. He brought back his apprentice, and with the approbation both, delivered him to the officer and took up the secur^y be had given for the bounty and clothing. Shall he now be permitted to reclaim him and thus hold both ^ie service and ^be bounty ? It would be as much against justice as against law. He has barred himself from complaint. He cannot now destroy the enlistment, which he before legalized.

The opinion of the court therefore is, that none but the master had a right to claim the discharge of the minor; that the master has prevented himself from making this claim; that no illegal imprisonment is perceived; that no cause has been shewn, why Isha Davidson should be discharged ; and it is therefore ordered, that he be left in the custody of the defendants.  