
    The Commonwealth against Robinson.
    UPON the application of Abraham Pollinger, a habeas corpus was issued on the 14th February, 1815, to major T. ,y. Robinson, of the 4th United States rifle regiment, commanding him to produce the body' of Jonas Roop, before Judge Brackenridge at his chambers in Carlisle, Cumberland county.
    The following return was made to the writ.
    “I have before the honourable Judge the body of Jonas' “ Roop, and say that he is a soldier duly enlisted in the ser- “ vice of the United States, agreeably to the act of congress. “ That I do not at present restrain him of his liberty, but at “ the end of four days from his enlistment I will restrain him “ of his liberty, and claim him as a soldier legally enlisted, “ unless within the four days he should re-consider, and “ withdraw his enlistment.”
    The enlistment was dated the 14th February, 1815, and was to continue five years.
    The affidavit of Pollinger stated, that Roop was his apprentice, bound by indenture to serve him for a term, then not expired; that he was confined and restrained of his liberty by major Robinson, and that such confinement and restraint were not (to the best of the deponent’s knowledge) for any criminal, or supposed criminal matter.
    
      Where an apprentice enlisted voluntarily in the army of the United States, under the act of congress of 10th December, 1814, and was satisfied with his situation, the court refused, on a habeas corpus issued under the act of assembly of 1785, on the affidavit of the master, to determine the question of property, and restore him to the master. The master m such a case, must resort to an action against the person who harbours his apprentice.
    
      An affidavit of Hoop was also read, shewing that he had enlisted voluntarily; that he had received two-thirds of the bounty, and that he had seen the residue tendered to his master. It appeared likewise, that he was satisfied with his situation, and did not wish to leave the army.
    The act of congress under which the enlistment was made, was that of the 10th December, 1814, entitled, “ An act “ making further provision for filling the ranks of the army “ of the United States.”
    The first section of this law authorises recruiting officers to enlist into the army of the United States',, any free, able-bodied, white man, between the ages of eighteen and fifty years ; which enlistment is declared to be binding on all persons under the age of twenty-one years, as well on those of full age, under certain qualifications mentioned in the next succeeding section.
    The second section forbids the recruiting officer to deliver to a recruit under the age of twenty-one years, enlisted under this law, any bounty or clothing, or in any manner to restrain him of his liberty, until after the expiration of four days from the time of his enlistment, and declares, that it shall be lawful for the recruit, at any time during the said four days, to reconsider and withdraw his enlistment, and that thereupon he shall be discharged and exonerated from the same.
    The third section repeals so much of the fifth section of the act of the 20th January, 1813, entitled, “ An act supple- “ mentary to the act entitled, An act for the more perfect “ organisation of the army of the United States,” as requires the consent in writing of the parent, guardian, or master, to authorise the enlistment of persons under the age of twenty-one years, and directs that in case of the enlistment of any person held to service as an apprentice, under the provisions of this act, whenever such person at the time of his enlistment, shall be held by his indenture to serve for any term between two and three years, his master shall be entitled to receive one-half of the bounty; where held to serve between one and two years, the master shall be entitled to receive one-third of the bounty ; and where held to serve one year or less, the master shall be entitled to receive one-fourth of the bounty.
    The hearing was adjourned by judge Brackenridge to the court in bank, where it this day took place ; major Robinson having engaged that the prisoner should be forthcoming to abide the order of the court.
    
      Binney who appeared in behalf of the master,
    in an elaborate argument, denied that the law under which the enlistment was made, was constitutional; but as the court declined expressing an opinion on the topics urged by him, a report of it is thought unnecessary. He contended also, that the court had a right, either under the 13th section of the habeas corpus act of 1785, Pur don, 205, or at common law, to deliver the apprentice to his master. Commonwealth v. Rhoda Nutt, 1 Browne's Rep. 143.
    
      C. J. Ingersoll for the United States,
    
    said, that it was not necessary for the court to consider the validity of the act of congress, and they would not undertake gratuitously to decide a question of such importance. He insisted that this was not a case within the habeas corpus act. It was a contest, he said, between the officer and the master about property, and the master had his remedy by action against any person who seduced or harboured his apprentice. He might likewise have a warrant to arrest the apprentice under the act of 1770. Purdon, 4. The act of 1785 was passed for the better securing of personal liberty, and preventing wrongful imprisonment. The 13th section, under which the present application is made, requires an affidavit of the person confined or restrained, or that of some person in his behalf, and the court is only authorised to bail, remand or discharge the prisoner. None of these things the court is now called upon to do, since the apprentice is under no restraint, and wishes to remain in the army. Of course, therefore, they cannot interfere under the act of assembly.
    Mr. Ingersoll denied that at common law, a habeas corpus would lie in Pennsylvania. He cited in the course of the argument, 1 Leach, 242. 2 Bl. Com. 131. 133. 138. Parl. Deb. Vol. 5, 223. (1757). 3 Bac. Ab. Flab. Corp. 438. (Guil. ed.)
    
   The opinion of the court was delivered by

Tilghman C. J.

The habeas corpus in this case was issued on the affidavit of Abraham Pollinger, under the act of assembly of the 18th February, 1785. It appears by the return, that Jonas Roop was enlisted as a soldier, in the army of the United States. At the time of his enlistment he was a minor, above the age of eighteen years, and bound by an indenture of apprenticeship to Abraham Pollinger. But it was not at his request, nor by his desire, that the habeas corpus was issued. On the contrary, he is well satisfied with his situation, and wishes to remain in the army. The object of the act of assembly, was to secure personal liberty, not to decide disputes concerning property. The court, u after “ examining into the facts relating to the case, and into the “ cause of the confinement or restraint, is to bail, remand, or “ discharge the party, as to justice shall appertain.” Now here we can neither bail, remand, nor discharge, because there is neither confinement nor restraint. The party wishes to remain where he is. In short, it is a mere dispute between the officer and the master, who claims a right to the service of his apprentice. The case therefore is not within the provision of the act of assembly. But a habeas corpus may be issued at common law, under which courts have gone so far, as to deliver the body of an infant to his parent, and sometimes an apprentice to his master. It is discretionary, however, whether to proceed to that length or not. In a case like the present there is no occasion for a summary proceeding, because the master has his remedy by action, against the person who takes away his apprentice. But there are strong-reasons against proceeding in any other manner than by action. It is understood that the validity of an act of congress is to be brought into question. The subject is worthy of the most solemn discussion and mature deliberation. And above all, it is desirable that it should be brought on in such a form, as will admit of a removal to the Supreme Court of the United States, the tribunal in the last resort, for deciding all questions arising, out of the constitution or laws of the United States. This court therefore would not have thought it expedient to interfere, in a case where personal liberty is not concerned, even if the habeas corpus had been issued at common law. Having considered the facts in this case, Jonas Roop is permitted to remain in his present situation, because he desires it.  