Com. ex rel. Dougherty v. Biddle

1 Brightly 447

• Court: Supreme Court of Pennsylvania
• Decided: December 15, 1846
• Status: Published

Opinion

Per Curiam.

— We discharge the boy out of the custody of Captain Biddle.

It being suggested that he had received bounty and clothing from the United States, the court said they had no power to award a return thereof.

*

In Com. ex rel. Webster v. Fox, 7 Barr, 336, the court not only affirmed the doctrine of the above case, but discharged the minor, although the return to the writ stated that he had deserted and subsequently surrendered himself as a deserter; and that the matter had been decided by the court of common pleas. Mr. Justice Coulter, who delivered the opinion of the court, held, that the circumstance of the minor having left the custody of the officer, or deserted, made no material difference in the case: the contract of enlistment under the circumstances, (the minor having a father who was entitled to his services) was not binding on him, and he might leave the service. It might possibly make a difference if the minor were under arrest for the crime of desertion, and in process of trial by a court martial for the offence. But even then, a person unlawfully enlisted, and held without authority of law, could only be amenable to military punishment for desertion in the presence of an enemy, or in an enemy’s country.

In the Case of Veremaitre et al., Judson, J., held, that a state court has no jurisdiction, on habeas corpus, to discharge a soldier or sailor held under a law of the United States. 3 Am. L. J. 439.,