#### The United States v. Cottingham.

February, 1843,

Richmond.

[40 Am. Dec. 710.]

(Absent Brooke, J.)

Army—Construction ot Act of Congress.—Construction of the eleventh section of the act of congress of March 16,1802, fixing the military peace establishment of the United States.

Same -Enlistment*—Alien—Discharge.—A person of full age voluntarily enlisting in the army of the United States is not entitled to be discharged from the service upon the ground of his being an alien.

In October 1841, George Cottingham presented a petition to the judge of the first circuit, setting forth that he was born in the -city of Dublin in the united kingdom of Great Britain and Ireland: that he migrated to this county in or about the year 1836, and shortly after, to wit, on the 16th of May 1837, enlisted in the army of the United States for three years, and served as a private in captain B). S. Hawkins’s company (H.) of the seventh regiment of infantry of the said army of the United States: that he became entitled to and received an honourable discharge on the 16th of May 1840: that two days before the expiration of his term of enlistment, to wit, on the 141h of May 1840, he enlisted a second time in the army of the United States, to wit, in troop B. in the second regiment of dragoons, to serve as a private for five years: that at the time of such enlistment he the said Cottingham was an alien, not having taken the oath of allegiance to the United ^States, nor taken any steps towards naturalization according to the laws of the United States: that being an alien he cannot legally be enlisted in the army of the United States: and that he is stationed at fortress Monroe, under the command of lieutenant colonel Alexander C. W. Panning, where he is detained in custody without legal authority. The petition prayed for a writ of habeas corpus ad subjiciendum.

Affidavit being made by the petitioner of the truth of the facts set forth in the petition, the judge to whom the application was made granted the writ, directed to colonel Panning.

Colonel Panning brought the petitioner *404before the circuit court of Norfolk county, and certified the cause of his detainer to be, that he was duly enlisted in the army of the United States. The material facts proved were made a part of the record. In the opinion both of the circuit court and of this court, they shewed the said George Cottingham to be an alien. And on the ground of alienage, the circuit court held that he was illegally detained in custody, and ordered that he be discharged.

The United States, by Robert C. Nicholas esq. their attorney for the eastern district of Virginia, presented a petition to the court of appeals for a writ of error, insisting that there is no legal impediment to the enlistment of aliens in the army of the United States, and that the judgment was therefore erroneous.

The writ of error was awarded accordingly.

Nicholas for plaintiffs in error.

In the first place it will be shewn by a reference to the general principles of law applicable to all contracts, that an enlistment in the army of the United States by an alien, (which is a contract between the U. States on the one hand, and the recruit on the other; U. States v. Bainbridge, 1 Mason 71,) is as binding upon the alien, as it would be upon a natural born citizen of the United States.

*A contract, in its most enlarged signification, is defined by the elementary writers to be “an^ agreement upon sufficient consideration, to’do or not to do a particular thing.” 2 Blac. Com. 442. It is essential to every contract, that there should be at least two contracting parties competent to make a contract. These parties may be either natural or artificial persons. Every natural person is competent to make a valid and binding contract, unless he labours under some particular disability making his case an exception to the general rule; and it is incumbent upon those who deny the capacity of a party in any given case to make a contract, to shew affirmatively the existence of such disability. To ascertain what are the disabilities which render persons incompetent to contract, we must have recourse to the jurists and elementary writers who have treated of this branch of the law.

Among the various causes of incompetency to contract, enumerated in the works upon this subject, mere alienage is not included. Chitty on Contracts, ch. 2, p. 107, (4th american from 2d London edi.) It is true, as we are informed in the same work, (p. ISO,) that the contract of an alien enemy is void and cannot be enforced, because, as the writer says, “if an alien enemy were allowed to sue in' the english courts on a contract made before or during his disability, he would be enabled to withdraw from this.country resources which might be converted to purposes injurious to its interests.” But the disability does not extend to an alien ami, to whom the considerations of public policy which have been adverted to do not apply. And cessante ratione cessat ipsa lex.

Moreover, although aliens labour under some disabilities, such as an incapacity to hold lands, to vote at elections, and to be appointed to offices &c. they nevertheless enjoy many of the rights and privileges of citizens, and are capable of acquiring, holding and transmitting' *moveable property in like manner as citizens; and they can bring suits for the recovery and protection of that property. 2 Kent’s Com. 62; 1 Blac. Com. 371-2.

The right of aliens to make valid and binding contracts is sanctioned by the general policy of our government, as indicated in the federal constitution, and by legislative enactments made in pursuance thereof. By the constitution of the United States, art. 3, sect. 2, it is provided that the judicial power shall extend (among other enumerated cases) to controversies between the citizens of a state and foreign states, citizens or subjects. The judiciary act of 1789, sect. 11, gives to the circuit courts of the United States jurisdiction of all suits of a civil nature in which an alien is a party. 1 Story’s Laws of U. S. 57. The authority thus conferred upon aliens to sue in the federal courts presupposes a capacity upon their part to make contracts; and the obligation of contracts must be necessarily mutual, and binding upon the alien as well as the citizen; for reciprocity of obligation is of the essence of all contracts. If an alien contracts .a debt with a citizen or with the government, or makes a contract with either to do a piece of work, he would not be exempted from its performance by being an alien, but might be coerced by suit to a compliance with his engagements. Why therefore may he not make a valid contract to render military as well as any other species of personal service?

But it may be argued on the other side, that though there is no personal disability in the alien to make other contracts, his enlistment is nevertheless void on account of illegality, being inconsistent with the allegiance which he owes to his own sovereign or country.

That argument is founded upon a misconception of the duties and obligations which devolve upon individuals during their residence in a foreign country; and springs from an incorrect idea of the nature of allegiance.

^Allegiance, we are told, is distinguished by the law into two sorts or species, the one natural, the other local; the former being also perpetual, the latter temporary. Natural allegiance is such as is due from all men born within the king’s dominions, immediately upon their birth. Local allegiance is such as is due from an alien or stranger born, for so long a time as he continues within the king’s dominion and protection; and it ceases when he transfers himself to another country. 1 Blac. Com. 370; 2 Kent’s Com. 63. And to the same effect see Vattel, book 1, ch. 19, *405sect. 213. The authorities cited clearly establish the proposition, that a citizen or subject of one state or kingdom, by removing to and becoming a resident of a foreign country, thereby incurs the obligation of allegiance to the latter country, in consideration of the protection which it affords him, whilst a sojourner within its limits. Nor is this duty of temporary allegiance affected by the consideration that an individual may be involved in difficulties by owing allegiance to two different sovereigns at the same time; for it is his own act which brings him into this embarrassment.

Moreover, the argument against the enlistment of aliens, founded upon its incompatibility with the allegiance due to their native sovereign, would equally apply to the enlistment of naturalized citizens ; who, according to the doctrines of the english law, (which have not been affected by any statutory provision in this country,) cannot by such naturalization throw off or renounce their allegiance to their native country. 2 Kent’s Com. 48, 9. Now the counsel on the other side will hardly contend that a naturalized citizen may not be lawfully enlisted in our army.

But again, it is contended on our part that there is not only no illegality in the enlistment of aliens, but that, according to the principles of national law as laid down by the most eminent jurists, it is perfectly lawful for '*the citizens of one country to enlist in a foreign service. Vattel, book 3, ch. 2, sect. 13. And the practice of all nations ancient and modern, it is believed, has been in conformity with the opinions expressed by the writers on public law.

If then there be nothing, either in the general principles of law applicable to contracts or in the law and usages of nations, which forbids the enlistment of aliens, let us enquire in the next place whether such enlistments are made illegal and void by the acts of congress relative to the army of the United States. It is contended by those who deny the legality of such enlistments, that, they are in violation of the 11th section of the act of congress approved March 16, 1802, in 2 Story’s Laws U. S. p. 832.

What was the object of this section? Was it designed to invalidate and render void ever3’ enlistment which was not in strict compliance with the regulations prescribed by it? It is absurd to suppose that such could have been the design of congress in adopting the provision in question. For, if it were, then every deviation from the requirements of the section, however trivial, would avoid an enlistment, and entitle the recruit to his discharge. For example, if he should want an inch of the required height, it would be just as valid an objection to his enlistment as the want of citizenship, which is relied on in this case. The requisitions in the section are merely directory to the recruiting officers, and a departure from them will not affect the validity or legality of their acts. Whitney & al. v. Emmett & al., 1 Baldwin’s C, C. E. 31S, 16, The correctness of this position is sustained by decisions of the supreme court in analogous cases. For instance, in the case of The United States v. Kirkpatrick, 9 Wheat. 720, it is decided that the laws requiring disbursing officers of the government to settle their accounts at short and stated periods, are merely directory to such officers, *and intended as a security to the government, but constitute no part of the contract with the sureties of such officers; and that consequently a failure by the government to require the settlements in the mode ard time prescribed, will not affect the liability of the sureties for any default of the principal. See also U. States v. Vanzandt, 11 Wheat. 184, and U. States v. Nicholls, 12 Wheat. SOS.

But it may be .said, that the section referred to imposes a penalty on the recruiting officer for a deviation from its provisions, and that every contract which is prohibited under a penalty is void, although the statute do not expressly declare it to be so; and that consequently the enlistment in this case was void, the recruit not being a citizen of the United States.

Without questioning the correctness of the general principle of law referred to, its application to the case before the court is denied. For in the first place, suppose it was the design of the legislature to annex the penalty to a deviation from any one of its requirements, in regard either to age, height, or citizenship; upon whom is the penalty imposed? Why clearly upon the recruiting officer, who is the mere agent of the government. The contract of enlistment, however, is a contract with the government itself. Now the principle of law before cited invalidates a contract, and takes awaj- all right of action upon it, wherever a penalty is imposed by statute upon the parties to such contract, or either of them: but in this case no penalty attaches to either of the contracting parties, the government or the recruit; it is designed merely as a security to the former for the faithful execution of the law, with which the latter has no concern.

But on our part it is contended further, that if the imposition of the penalty is to have any influence upon the construction of this section of the act, the penalty itself was not designed to be applied to the enlistment *of persons not citizens of the United States, but merely to the enlistment of minors without the consent of their parents, guardians or masters: for although the first part of the section allows the sum of two dollars to the recruiting officer for the enlistment of each citizen of the U. States of a certain height and age, it does not prohibit the enlistment of persons not citizens; the only words of prohibition are contained in the proviso in regard to the enlistment of minors, and the penalty is annexed to the violation of that proviso only.

But conceding, for the sake of argument, that it was the intention of congress, by the section under consideration, to prohibit *406under a penalty the enlistment of any person not a citizen of the United States, the question naturally arises as to the true meaning of the words “citizen of the United States,”, as used in the act. We contend that those words must be taken in a restricted or qualified sense, and do not mean a citizen entitled to all the privileges which appertain to citizenship in its most enlarged signification. It has been already shewn in a former part of this argument, by reference to Vattel, that an alien under the protection of a foreign states is for some purposes and to a certain extent to be regarded as a citizen, and as owing a temporary allegiance to that state. The principle is moreover well established, that for all commercial purposes, a person may acquire, without naturalization, and by residence merely, the rights of a citizen of another country; and the domicil of a party, without reference to the place of birth, becomes quoad hoc the test of national character. 1 Kent’s Com. 75; 2 Id. 49.

Again, by the 11th section of the judiciary act of 1789, before cited, the circuit courts have jurisdiction of suits between citizens of different states, and the averment of the citizenship of the parties is a necessary averment, and must be proved, under the general issue. But it has been repeatedly decided that the “citizenship spoken of in the constitution and in the judiciary act, in reference to the jurisdiction of the federal courts, means nothing more than residence. To constitute a person a citizen of a state, so as to sue in the courts of the United States, he must have a domicil in such state. If he removes into a state animo manendi, that is sufficient, whatever may be his motive for removal. Catlett v. The Pacific Ins. Co., 1 Paine’s C. C, R. 594; Case v. Clarke, 5 Mason 70; Cooper’s lessee v. Galbraith, 3 Wash. C. C. R. 546.

These authorities are abundant to shew that the word “citizen,” employed in an act of congress, is not always to be understood in its most extended signification, but is sometimes used to express an inferior degree of citizenship, such as is described by Vattel. And such, it has been attempted to prove, is the proper interpretation to be placed upon the term “citizen” in the act under consideration.

By this construction the act of congress will be made to harmonize with the principles established by the law of nations, which have been shewn .to authorize the enlistment of temporary residents. And according to the decision of the supreme court in the case of Talbot v. Seeman, 1 Cranch 1, “the laws of the United States ought not, if it be avoidable, so to be construed as to infract the common principles and usages of nations, or the general doctrines of national law. ” See opinion of the court in that case, delivered by chief justice Marshall, Id. p. 43.

Segar for defendant in error. It may be conceded that on general principles an alien may contract, eithef with the government or its citizens. But the case of (Nottingham, and all like it, are taken out of the operation of general principles by special legislation. The 11th section of the act of congress of the 16th of March 1802 forbids the enlistment of aliens in the army. “Surely the legislative power may place either citizen or alien under disability to contract about a particular subject. Here the disability is created by express law, and extends to both the contracting parties, unless the prohibition in the act of 1802 is to go for nothing.

That it was the intention of the legislature to exclude aliens from the military service, will clearly appear from the history of the legislation on this subject. In 1811, 1812, 1813 and 1814, laws were passed which virtually repealed the act of 1802, and dispensed with citizenship as a qualification of the recruit, by authorizing the enlistment of ablebodied men. See Story’s haws U. S. p. 1205, 1208, 1285, 1433. This change in the law of enlistment evidently grew out of the emergency of the case; the country being then either on the verge of war with Great Britain, or actually engaged in it, and requiring, in order to fill up its armies, a relaxation of the policy which had governed the previous peace establishment. But the war having terminated, and the emergency passed away which caused the suspension of the act of 1802, congress, by its act of March 3d 1815, (Story’s Uaws U. S. p. 1510, (S 7,) repealed the laws of 1810, 1811, 1812 and 1813 which allowed the enlistment of aliens, and reinstated the 11th section of the act of 1802 and the 5th section of the act of 1808, which prescribed, citizenship as a requisite of enlistment. This ascertains clearly the intention of congress that none but citizens should be employed in the military peace establishment. And the intention being discovered must prevail. Brown v. Barry, 3 Dali. 365. So imperative indeed is the legislative will, that where it can be ascertained by expressive circumstances, it will prevail even over the literal sense of terms. 1 Kent’s Com. 462. There was an obvious and twofold motive for, banishing aliens from the peace establishment. First, (in the absence of all emergency) to add to the moral character qnd respectability, by improving “the material of the army, which could be accomplished by no other means so well as by substituting the native born american for the alien mercenary. Secondly, there’has ever been in this country an excessive jealousy of standing armies in time óf peace, which would naturally lead the representatives of the people, in framing a military peace establishment, to compose it of citizens. There is far more ground for distrust of aliens in time of peace than of war, for in the latter case the number of citizens in the armies of the republic would so far exceed that of foreigners as to remove then all ground for apprehension. These considerations tend to shew that it was the design of congress, by the *407act of March 3d 1815 (reinstating that of 1802), to redress a mischief; and the judiciary should, pro bono publico, give such construction to those acts as will meet the intention of the legislature. Again, as indicating the intention of the legislature, we may look to the uniform construction given to the act of 1802 by that department of the government which is specially charged with the interpretation and execution of all laws relating to the military establishment; the department of war. Prom 1815 to this time, without interruption, the war department has interpreted the 11th section of the act of 1802 to exclude aliens from enlistment. It will suffice to refer to the general regulations for the army, published in 1841, where it is laid down at p. 121, in article 687, that the persons who may be enlisted are to be “citizens of the United States, native or naturalized.” What other meaning can be given to the act of 1802? It cannot mean that the recruiting officer may enlist men possessing none of the qualifications therein prescribed, or possessing only some of them. It must be considered as prescribing a rule to be strictly observed by the recruiting officer; he is to enlist only those who shall possess at least the qualifications, each and every one thereof, marked out in the act. Does *the district attorney suppose the interpretation to be, that for recruiting men possessing all those qualifications the recruiting officer shall receive the 2 dollars premium, but in the event of their not having those qualifications he shall only forfeit the premium, the enlistment all the while remaining valid? Such an interpretation supposes that congress, in framing the peace establishment, was looking rather to the pitiful interests of the recruiting officer than to the weal of the republic; and it leaves the whole policy of enlistments in the army, instead of being guarded by legislative provisions, to the naked discretion of the recruiting officers of the army. But the ground work of such a construction is overturned by the fact that the provision of the law of 1802, allowing a premium for enlisting recruits, is repealed by the 5th section of the act of congress passed March 2, 1833, (Sess. Acts 1832-3, p. 72,) and the commissioned officers charged with the recruiting service are still to enlist citizens of the United States.

With respect to the argument that a qualified citizenship was meant by the act of 1802, it is sufficient to observe that the term citizen there used must be taken in its common acceptation, to mean one born in this country, or one not born therein who has become a citizen by complying with the naturalization laws of the U. States. The cases referred to (Catlett v. The Pacific Insurance Company, Case v. Clarke, and Cooper’s lessee v. Galbraith) have no reference to aliens or to the military service, and present no grounds for an argument from analogy.

II. It is not necessary that terms of positive prohibition be employed to render a statute prohibitory in its operation. In Cohen v. Hoff, 2 Tredway’s Rep. 661, *Nott,*J., lays it down, that “affirmative words in a statute sometimes imply a negative of what is not affirmed, as strongly as if expressed. ” And this happens in two cases: first, when a new rule is introduced; Hobart’s Rep. 298; 1 Kent’s Com. 467, note d. ; 6 Bac. Abr. -x'Gwill. edi. p. 377. Secondly, when a statute directs a thing to be done in a particular way, it includes in itself a negative; viz. that it shall not be done otherwise. See authorities just quoted; also Plowden 206 b. ; Vin. Abr. vol. 19, p. 511, 12, title Statute. Now the present law of enlistment did at the time of its reenactment prescribe a new rule, by abolishing the rule which prevailed under the laws of 1811, 1812, 1813 and 1814, and introducing another in its stead: and the act of 1802 directing enlistments to be made in a particular way, viz. of ablebodied citizens &c. implies that they are not to be made otherwise; that is, by specifically including citizens, it excludes aliens, upon the well known maxim inclusio unius est exclusion alterius.

III. Nor the nonobservance of the qualifications enumerated in the act of 1802, a penalty is imposed of the value of the clothing received from the government by the recruit; say, some 30 or 40. dollars for each offence. There is no reason for considering this penalty as applicable exclusively to the enlistment of minors. If congress had so intended, they would have used the vrords “contrary to the true intent and meaning of this proviso;” or their language would have been—“And if any officer shall enlist any person under 21 years of age without the consent of his parent &c. he shall forfeit and pay the amount of clothing which may have been received by such recruit.” But the words of the act affixing the penalty are general—“contrary to the true intent and meaning of this act.”

Sven if there were no penalty imposed by statute, it is imposed by another authority. It is clearly within the constitutional prerogative of the president, as commander in chief of the army and navy, to ordain general regulations for the' government of the army, not forbidden by the constitution or the laws. And the first section of the act organizing the war department constitutes the secretary of war the organ of the president, *for performing such duties and acts connected with the land forces, as may consist with the constitution. The general regulations of the army, then, when they have received the sanction of the president, have the force and obligation of law. The 687th article of the regulations published in 1841 (like those which have been in operation for many years) designates “ablebodied citizens of the U. States, native or naturalized,” as those who may be enlisted. After thus designating citizens for enlistment, this code of regulations goes on, with the most guarded circumspection, to prevent the enlistment of any contrary to law or regulation. Boards of inspection are organized from time to *408time, for the express purpose of enquiring whether any have been enlisted contrary to law or regulation; and if any be found to have been so enlisted, they are rejected, and the recruiting officer who may have enlisted them is mulcted in the amount of clothing which the discharged recruit may have received, to be deducted out of his pay. See articles 687, 713-719, 741. If it be said that the words of the 687th regulation are, “ablebodied citizens *ma.y*be enlisted,” the answer is that may, there, obviously means must; for that is its meaning whenever a positive duty is imposed, and not a mere discretionary power given. Minor and others v. Mechanics Bank of Alexandria, 1 Peters 64. Moreover, by the general order prefixed to the regulations, the officers of the army are commanded strictly to observe every article thereof; and any “change, alteration or departure therefrom” is expressly forbidden.

IV. Whatever is forbidden by penalty in a statute is unlawful and void. Bartlett v. Vinor, Carth. 252; 1 Kent’s Com. 467; Chitty on Contracts (4th american from 2d London edi.) 538; Hallett v. Novion, 14 Johns. 273; Mitchell v. Smith, 4 Dali. 269; 1 Binn. 118; Seidenbender v. Charles’s adm’rs, 4 Serg. & Rawle 151-160; Wheeler v. Russell, 17 Mass. R. 259-281. The *distinction between offences mala in se and mala prohibita has been overruled. Ex parte Daniels, 14 Ves. 191; Appendix to 15 Peters p. 33. A breach of the statute law in either case is equally unlawful, and equally a breach of duty; and no agreement founded on the contemplation of either class of offences will be enforced at law or in equity. 1 Kent’s Com. 467, 8; Pennington &c. v. Townsend, 7 Wend. 276; Law v. Hodson, 11 East 300; Bank v. Owens, 2 Peters 527-538; 1 Tuck. Com. (edi. 1831) book 2, p. 223; 2 Id. book 3, p. 130, 481. This court has itself solemnly adjudicated the principle that a thing prohibited by the imposition of a penalty in a statute is equally forbidden and equally unlawful with one expressly and absolutely prohibited; Wilson v. Spencer &c., 1 Rand. 76; M’Guire v. Ashby, 1 Rand. 101. Applying to the present case the principles ascertained by the authorities which have been cited, the conclusion is that the enlistment of Cottingham (who was not a citizen), being prohibited under a penalty prescribed both by statute and regulation, is altogether illegal and void.

V. The enlistment of Cottingham is void on another ground. As a contract it wants an indispensable ingredient of every valid agreement,'—mutuality. The government might have put an end to it at its will; it might have discharged Cottingham at any moment for being an alien, whether he were willing or not. It is almost the daily practice to dismiss the enlisted soldier for want of the prescribed qualifications. If the government may do this, may not the soldier, for like reasons, claim his discharge? The contract, not being obligatory on the one, cannot bind the other.

*

Contracts of Enlistment, Civil Contracts--Points of Difference between.—The principal case is cited in U. S. v. Blakeney, 3 Gratt. 415, 425; Burroughs v. Peyton, 16 Gratt. 492.

See *foot-note*to U. S. v. Blakeney, 3 Gratt. 406.

BALDWIN, J.

The error in the argument of the appellee’s counsel consists in treating the enlistment in question merely as a contract, and as subject exclusively to the principles affecting the validity of contracts. A ^contract it undoubtedly is in a certain sense, inas- ' much as it is an engagement between the parties, for a service to be rendered by one of them, in consideration of a compensation to be yielded therefor by the other. But it wants one of the usual requisites of contracts, a reciprocal obligation in regard to the subject matter. On the one hand, the recruit is bound to serve during the full term of his enlistment; but on the other, the government is not bound to continue him in service for a single day, but may dismiss him at the very first moment, or at any subsequent period, whether with or without cause for so doing. It has moreover a feature not to be found in most contracts ; namely, a power in one of the parties to compel specific performance from the other by the exercise of physical force. If the soldier desert, he may be recaptured^ and coerced to the discharge of his duty by corporal restraint and punishment. These important traits of the engagement result not so much from the specific terms of the compact, as from the relation in which it places the parties towards each other; a relation of authority and Control on the one side, and of obedience and submission on the other. It resembles in some respects the relation of master and servant, of the strictest kind between individuals; to wit, the condition of apprenticeship, or other indented servitude. And having regard to the circumstance that the government is one of the parties, it bears perhaps a still closer resemblance to the relation arising out of an appointment to a post or place under the civil administration; though, from the nature of the service, involving a sterner and more despotic supremacy. In fact, the enlistment is an appointment by the government of an individual to the lowest grade of military service; differing only from the commission to an officer, by the inferior rank, emolument and duties, and the incapacity to retire by voluntary resignation. It is commonly founded in compact, *but not necessarily so; for the government, as the administrative sovereign of the country, has an unquestionable right, in certain emergencies, to call the inhabitants capable of bearing arms into its military service, and, by some equitable rule, to select from the whole number those best adapted to the purpose; and this without regard to their consent.

Now it cannot be doubted that the government, like an individual, in regard to appointments to its service, may prescribe the requisite qualifications, and insist upon or waive them in its discretion ; and that the person appointed or selected has no right to relieve himself from his engagement, by objecting his own want of qualification. And so it is equally clear, as the act may *409be done through the instrumentality of an agent, that if he should transcend or neglect the instructions of his principal in regard to qualification, the latter is not obliged to repudiate the transaction, but may sanction and confirm it without the concurrence of the other party to *the engagement.*

Let us now enquire how far these principles are applicable to the case before us. And this must depend upon the legislation of congress on the subject. The question may be considered as arising on the construction of the act of congress of the 16th of March 1802, fixing the military peace establishment of the United States; for *though*there has been subsequent legislation on the subject, it has no material bearing upon the present case. The provisions of the 11th and 12th sections of that act are as follows:

> “i 11. That the commissioned officers who shall be employed in the recruiting service, to keep up by voluntary enlistment the corps as aforesaid, shall be entitled to receive for everjr effective, ablebodied citizen of the United States who shall be duly enlisted by him for the term of five years, and mustered, of at least five feet six inches high, and between the ages of eighteen *and thirty-five years, the sum of two dollars: provided nevertheless that this regulation, so far as respects the height and age of the recruit, shall not extend to musicians, or to those soldiers who may reenlist into the service: and provided also that no person under the age of twenty-one years shall be enlisted by any officer, or held in the service of the United States, without the consent of his parent, guardian or master first had and obtained, if any he have; and if any officer shall enlist any person contrary to the true intent and meaning of this act, for every such offence he shall forfeit and pay the amount of the bounty and clothing which the person so recruited may have received from the public, to be deducted out of the pay and emoluments of such officer.

> “§ 12. That there shall be allowed and paid to each effective, ablebodied citizen, recruited as aforesaid to serve for the term of five years, a bounty of twelve dollars; but the payment of six dollars of the said bounty shall be deferred until he shall be mustered and have joined the corps in which he is to serve.” Story’s Laws U. S. p. 832.

These provisions, it will be seen, had a fourfold object: 1. To keep up the peace establishment of the army by voluntary enlistments. 2. To encourage recruiting, by a premium to the recruiting officer, and a bounty to the recruit. 3. To procure for the government recruits best adapted to the service, and protect it against inadequate selections. 4. To protect minors from their own improvident engagements. The protection to the government was afforded by the legislative instructions to the recruiting officer, and punishment for disobedience. The protection to the minor was extended in like manner, and still more effectually, by requiring the consent of his parent, guardian or master. No protection was furnished or contemplated for the adult recruit. None whatever was requisite or proper. *His want of qualification is best known to himself, and his entering the service is a fraud upon both the government *and its*agent, if the defect be unknown to the latter; and if known, then it is an act of collusion with him to deceive and injure the principal. His conduct, instead of entitling him to protection, ought to subject him to punishment; and accordingly in the british recruiting service, by statute 10 Cxeo. 4, ch. 6, fj 34; 7 Bac. Abr. by Dodd (London edi. of 1832) p. 379, title Soldiers, letter A. he is justly exposed to very severe penalties.

It will be seen that the qualifications prescribed by this act of congress, for the regulation of the recruiting officer, are, 1. That the recruit shall be effective and ablebodied; 2. That he shall be a citizen of the United States; 3. That he shall be at least five feet six inches high; 4. That he shall be between the ages of eighteen and thirty-five years. These requisites were obviously designed for the benefit of the government, and in order to obtain recruits best fitted for the service. They are all placed on the same footing, without discrimination; all based upon the idea of qualification alone, all embraced in the same mandate, and all enforced by the same penalty. It is impossible to distinguish between the want of citizenship and the want of any other qualification ; and if a recruit be entitled to his discharge because he is an alien, he would be equally entitled to it because only five feet five inches and eleven twelfths in height,* or thirty-five years and one day old. There is no better rule of interpretation than this, that “no statute shall be construed in such manner as to be inconvenient or against reason.” If a recruit were to claim exoneration from the service, on the ground that at the time of his enlistment he was under size, or under age, or infirm in body, would it not be a sufficient ‘answer that the government, in its discretion, waived the objection, because he had since attained the requisite height or age, or had recovered, or would probably recover, from his disease; or because he possessed qualities which would more than compensate for his alleged deficiencies? And so if the plea be that of alienage, is it not enough to say that, though constrained to the admission that the native or naturalized citizen must be supposed to possess greater valour, higher intelligence and more approved fidelity than a mere stranger, yet there may be exceptions to the general rule'; and that in the particular case the petitioner is a gallant and disciplined soldier, whose oath of fidelity when he took the bounty, and his long residence and connexions and interest in the country, furnish sufficient *410security for the faithful discharge of his duties?

The law, in no part of it, is founded upon a supposed disability of the recruit to bind himself by his compact of enlistment. No such disability is recognized by the act even in regard to minors, but a mere protection granted to the immaturity of intellect, by requiring the consent of the parent, guardian or master. Without that qualified exemption, boys of any age would be subject to enlistment in the army, as they are in the navy, not only without but against the consent of their natural or legal protectors; for the national sovereignty, in the exercise of its constitutional powers, may overrule the municipal laws of the states in relation to the incapacity of infants. United States v. Bain bridge, 1 Mason’s Rep. 71. An alien has no right, founded upon any principle either of municipal or international law, to claim exemption from the consequences of his own voluntary engagement, whether for military or any other service. No one supposes that he labours under a disability in this respect; for though, by such a stipulation, he may by possibility involve himself in difficulties in regard to his allegiance to his. native sovereign, K'that is a matter for his own consideration, and cannot affect the validity of his new obligation. If any authority were necessary for so self-evident a proposition, it would be found not only in the practice of employing foreign mercenaries, which has prevailed amongst civilized nations in all ages, but in the doctrine as laid down by the most approved writers. Vattel, book 1, ch. 19, | 213; 1 Black. Comm. 370.

The rules by which the courts refuse to enforce contracts that are contrary to law have no application to a case like this; for the contract of enlistment,' if to be so called, is not obligatory upon the government, under any circumstances, and cannot, as has been shewn, be the less obligatory upon the recruit because he does not possess the requisite qualifications. The act of congress does not in that event declare the enlistment to be void, or exclude the recruit from the service, but merely subjects the recruiting officer to punishment for his disregard of the legislative instructions. That the legal prohibition amounts to nothing more than this, is obvious from the consideration that the penalty is founded exclusively upon the actual misconduct of the officer; for though its letter is broad, its spirit surely would not reach beyond the case of wilful disobedience or culpable negligence; and such is the practical interpretation given to it by the ’ war department. Army Regulations of 1841, p. 126, 127. Now it would be a new principle to establish, that the misconduct of a public officer in the performance of an official act shall avoid the transaction, against the consent of the party aggrieved, and for the sole benefit of another party in no wise prejudiced : and it would be still more strange, if the act prohibited to the officer has been procured without his connivance or default, by the fraud of the partjr complaining.

'In what has been said, I have regarded the law of congress as designed to regulate the recruiting service *with a view to the qualifications of recruits, and not by such weighty considerations as a fear for the public safety, or a jealousy of executive power. If in the legislative mind the republic would be endangered by the foreign nativity or the debility of enlisted soldiers, a policy so grave would have been marked by decisive enactments, and not exhausted- in petty penalties upon a subaltern officer. It is moreover remarkable, in reference to unnaturalized inhabitants, that, by a fluctuating legislation, the policy of employing them has varied, not according to the hazard but the utility of their military services; for the authority to enlist them has been given to the recruiting officer in times of greatest peril, and withheld in those of greatest security. Thus by the acts of 1802, 1808, and 1815, he is directed to enlist ablebodied citizens; but by the acts of 1811, 1812, 1813, and 1814, the direction is to enlist ablebodied men. 2 Story’s Laws U. S. p. 832, 1089, 1510, 1205, 1285, 1433. And in another branch of the public defence of not less importance, and deeper solicitude to the nation, aliens are habitually and lawfully employed on that perilous field of her glory where the treacherous mercenary may find fit allies in the treacherous winds and waves. The act of congress of the 3d of March 1813, “for the regulation of seamen on board the public and private vessels of the United States,” 2 Story’s Laws U. S. p. 1302, throws light upon the present subject in two points of view; for in the first place it expressly declares, that after the termination of the then existing war with Great Britain, the employment of aliens on board all such vessels shall be unlawful, and adopts the most decisive and vigorous measures, both precautionary and vindicatory, to prevent it; and then provides that the provisions of the act shall have no operation with respect to the subjects of anjr foreign nation which shall not, by treaty or special convention with the government of the United States, *have prohibited the employment of native citizens of the United States on board of her public or private vessels. This act thus indicates, on the one hand, that where a policy of utter and unqualified exclusion from the service exists, it is not left by congress to a vague, indirect and doubtful implication; and on the other, that such a policy is never dictated by a puerile jealousy or a petty apprehension of danger.

A case like the present may, I think, be safely left to executive discretion in the discharge of the constitutional duty to take care that the laws be faithfully executed; inasmuch as the exercise of that discretion in the one way or the other can be no encroachment upon the legislative power; for as the war department may dismiss a recruit without cause shewn, so it is no good *411cause for his dismission that he has practised an imposition upon the government in regard to his qualification. This construction of the statute is, I think, in the true spirit of the law; while the opposite would open the door widely to the vilest frauds upon the public service. It is proper however to say, in justice to the petitioner, that the record of this case furnishes no evidence of his having practised a fraud upon the recruiting officer.

Note by the reporter.—The supreme court of New York made a similar decision at May term 4848 The decision, so far, has only been made known through the newspapers. 11 will no doubt be found hereafter in the regular reports of the decisions at that term.

I have considered the case as standing upon the footing of an original enlistment; inasmuch as it does not appear from the record, that the petitioner’s reenlistment was into the company or regiment to which he belonged at or about that time. If such were the fact, there could not be even a plausible objection on his part to the validity of his engagement; because the acts of congress of the 2d of March 1833 and the 5th of July 1838 give a bounty to “every ablebodied noncommissioned officer, musician or private soldier, who may reenlist into his company or regiment within two months before or one month after the expiration of his term of service;” thus dispensing with all other qualifications. *Sess. Acts of 1832-3, p. 72, *l*3, and of 1837--8, p. 105, *l*29. Whether the irregularity of reenlisting into a different companj' or regiment would affect the question of qualification, I deem it unnecessary to consider: my impression is that it would not. However that may be, these acts serve to confirm the conviction, that in the legislation of congress on this subject, citizenship has never been regarded in any other light than as a mere qualification.

I am of opinion that the judgment of the circuit court ought to be reversed, and the appellee remanded to the service.

The other judges concurring, the judgment of the circuit court was accordingly reversed, and judgment entered declaring that the defendant was lawfully detained in custody, and remanding him into the service of the United States according to the terms of his enlistment.

*

Note by the judge. The qualification as to height has been since abolished. Sess. Acts ol Congress of 1837-8, p. 105.