The daily Madisonian. [volume] (Washington City [i.e. Washington, D.C.]) 1841-1845, 1843-06-21
OPINION OF HON. BRIsCoE G. BALDWIN
oh''e' s'''e'' In THE CouHr OF ArrEAls OF Va.
Co,,;,.h Richmond, Feb, lS43

"The error in the argument Of the appe lees
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 II undoubtedly is, in certain sense mas
much as il is an engagement between the parties
for service 10 be rendered by of Them in con-
sideration of compensation to be yielded therefor
by the other. But II wants one of the usual requ
sites OF contracts, reciprocal obligation In regard
TO the subecl-mater. On the one hand the recruit
is bound To during the full term of his enlist
ment but 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 al any sub
sequent period whether with without for so
dong IL has, moreover feature not TO be found in
most contracts namely, power in one of the parties
to compel specific performance from the other, by
the exercise Of physical force II the soldier de-
sert lie may be recaptured and coerced 10 the dis
charge OF his duty by corporal restraint and punish
ment. These important traits Of abe engagement
result not much from the specific Of the com
pact as from the relation in hich II places the par
ties towards each other; relati Of authority and
control on the side, and Of obedience and sub
mission on the other Ii resembles in. some respects
the relation of master and servant Of the strctes
kind between individuals 10 wit, the condition OF
apprenticeship, or other indonted servitudc. And
having regard TO the circumstance that the Govern
ment is OF the parties, II bears, perhaps still
closer resemblance to the relation arising out Of an
appointment 10 post or place under the civil admin
lstraiIOn though from Ue nature OF The service,
voying sterner and more despotic supremacy. In
fact the enlistment Is an appointment by the Gov
ernment, of an individual TO the lowest grade of
ID llitary service ing only from the commission
to an officer, by the inferior rank, cmolument and
duties and the incapscity TO retire by voluntary re-
/ sgnation. Ii Is commonly founded IN compact, but
I not necessarily for the Government as the ad-
illustrative sovereign the country, has unques-
onabe right IN certain emergencies TO call the in.
babaps capable Of bearing arms into its military
service and by some equitable rule TO select from
the whole number those best adapted 10 the purpose
and this without regard To their consent.
| Now, II cannot be doubted, that the Government,
] like an individual, IN regard 10 appointment 10 It's
service, may prescribe the requisite qualifications
and insist upon waive them IN its discretion; and
that the person appointed selected has no right 90
/ relieve himself from his engagement, by Directing
] his own want Of qualification. And so II is equa N
clear as the act may be done through the instrument
tally of an agent that II he should transcend or neg.
ect the instructions Of his principal in regard To
qualification the latter not Obliged to rcpudaie the
transaction, but may sanction and confirm II withou,
the concurrence Of the other party TO the engage
ment.
Let us now inquire how Gar these principles are ap-
plcabe TO the case before And this must depend
| uron the legislation Of Congress on the subject
The question be considered arising In the
structon of the act Of Congress of the I6h Of March
4 o. fixing the military peace establishment Of the
United States for though there has been subsequent
legislation on the subject, II has material bearing
upon the present case The provisions Of the Illt
/ and llh sections OF that act are as follows;
| as III That tie commissioned officers who shall
be employed IN the recruiting service TO keep UP by
voluntary enlistment, the corps aforesaid shall b,
en tied to receive for every effective able bodied cit
izen Of the United States who shall be enlisted b,
him, for the term Of FIVE years, and mustered Of a.
least five feet six inches high, and between the ages
Of eighteen and thrty-hve years, the sum of tw,
dollars. Proridsd nevertheless, that this regulation
so far as respects the height and age OF the recruit
shall not extend TO musicians, or to those soldier
who may re-onlst into the service Ind prorided al
90 That no person under the age OF twentyone year
shall be enlisted by any officer, held in the service
of the United Safes without the Of his pa
rent guardian, master, first had and obtained,
any he have and Il any officer shall enlist any per
son contrary to the true intent aud meaning Of thi
act for every such offence he shall forfeit and pa
the amount OF the bounty and clothing which the per
son so recruited, may have received from the public
10 be deducted out Of the pay and emoluments G
y such Officer
i rs II. hat there shallbe allowed and paid TO eao
effective able bodied citizen, recruited AFORESAID
to serve TOT he term Of five years bounty oftvelv
dol but the payment Of six dollars Of the sal
bounty shall be deferred until h. shall be mus,ere
and have joined tho corps m which he u to serve"
y These provisions, 1t viii he seen, bad fourfo
s object l. TO keep ny the peace establishment of "
army by volu,ary enlis,mentsj 2. 10 encourage ?
oruiting by premium to the recruiting officer and