The Enquirer

HIGHLY IMPORTANT DECISION.
[REPORTED FOR THE BALTIMORE PATRIOT.]
Daniel Wells an infant
By George Mackenzie, Habeas Corpus.
vs.
John Kennedy.

The petitioner was an infant under the age of 21,
and above the age of 18 years—he was also an apprentice to George Mackenzie. On the 10th of
August he was arrested by a few soldiers, under
the orders of the defendant, John Kennedy, and
forcibly carried to camp, near this city. The above
application being made, a Habeas Corpus was issued
by his Honor Judge Bland, returnable at the court
house on Wednesday, the 11th August, at 10 o'clock,
at which time captain Kennedy appeared, with the
prisoner in his custody. In consequence of a defect in
the return, for want of certain papers, the petitioner
was remanded to the custody of the defendant until
On this day at 10 o'clock, and the court second adjourned
'till 2 o'clock, the petitioner appeared,
in custody of the defendant who made a return in
substance as follows:

That the said Daniel Wells resided in his district,
and was of legal age to do duty as a militiaman;
that in virtue of division order. Genl. Major General
Samuel Smith, dated 6th August., and of orders, dated 7th August, he, the said John Kennedy,
captain in the 27th regiment, was ordered by lieut.
col. Long, commanding said regiment, to call out the
militiamen in his district on a tour of duty for one
week, in order to repel a threatened invasion of the
state; that in compliance with the said orders, he,
the said John Kennedy, did duly notify the said
Wells, (the petitioner) so liable as a militiaman to
do the said tour of duty and as a member of his militia
company, to attend to the usual place of meeting
of said company, in order to perform said tour of
duty; that the said Wells (the petitioner) did not
attend according to said notice—whereupon the said
John Kennedy, in virtue of orders from the commanding
officer of the 27th regiment, on the 10th
of August sent a guard, and did, on the said day,
take the said Wells into custody, in order to compel
a performance on his part of the said tour of
duty; which is the cause of the said caption and detention.
[Sworn to in open court.]

The case was submitted on the above return;
when the learned Judge observed in substance as
follows:

That he considered the case to lie within a nutshell.
There are two modes (says his honor) in which
the militia may be called out. In ordinary cases a
portion of them may be ordered into service by
drafts as directed in the act passed at May session,
1813—but in extraordinary cases when the district
is threatened with invasion, the other mode prescribed
by law, may, in the discretion of the proper military
officer, be resorted to. This mode is calling
out the militia en masse, or any part of them,
which is expressly authorised by the act of May,
1813, chap 19, sec 8. In either case the militia are
immediately upon receiving orders, subject to the
rules and regulations of the articles of war, by the
act of Assembly. passed at November session, 1811,
ch. p. 182, sec.31—He is therefore in legal custody,
and must be remanded to his officer, and conducted
to Camp.