The daily crescent. [volume] ([New Orleans, La.]) 1848-1851, 1848-07-10

prety OF expediency of enforcing that right through
the Courts except in cases of grave oppression we
will say nothing-it is probably for the benefit Of
the soldier that he should be discharged as the or
ders from the War Department, issued in accord
ance with the recent Act Of Congress requre-but
when the case is brought before a Court for deci-
sion we can neither see the necessity of establish
ing the fact of peace by proclamation from Wash
ington nor can we see any constitutional difficulty
in the way Of the Courts deciding according to the
Constitution the law, and the contract, whatever
the er post acto action of Congress may have been.
The following notice of the decision was prepared
by friend and though differing from our own no.
tons, we give it place, in order that both sides
may be heard
The "Habeas Corpus" Case.
On Saturday last Judge Buchanan delivered his
opinion in the matter of George w. EameS ct alS.,
praying to be discharged from the service of the
United States, on the ground of the war being at
an end which was the period at which their term
of service was to expire by the provisions of the
law under whichthey had enlisted. The Judgment
of the Fifth District Court has been published at
length in the papers of Saturday evening and Sun
day morning we will therefore cOnfine ourselves
to such points in the judgment as we may consider
conflict with or sustain the various laws cited and
positions assumed by the plaintiffs counsel and
Gen. Butler, who appeared in his own behalf.
The plaintiffs counsel commended for question
of right, which was clearly determinable by ascer-
tanning one fact, to wit: the todr ended
The term of the soldiers engagement with the
Government clearly expiHs with the war, if not
sooner discharged but should not that expression
in the act of Congress be construed in accordance
with the spirit and palpable intention Of the con-
tracing parties We think it should. Much skill
full argument was made upon the subject, as to
whether courts or persons can legally recognize the
restoration Of peace with a nation with which we
were so recently engaged In war, at any moment
previous to the ratification of the treaty and
proclamation to that effect by the executive, and
the court has given the same question much atten-
ton in the Judgment; but we think that PROPOSE
ton as clearly settled in the negative, as, that the
war, IN point Of fact IS ended. We are not pre-
pared to say that the moment the treaty of peace
was signed by the Commissioners of both Govern
ments-the soldier and our Government were in
stantly at liberty to put an end to their respective
duties, simply because the terms Of their contract
say the service shall last &c during the Dar.
We think the spirit of the contract made it the
duty of the Government to transport the army to
the various points of the United States near as
possible to the place of enrolment, and there pay
and discharge the soldier without delay; and that
the duty of the soldier, under the contract, is TO
yield the most implicit obedience to the Com
mander-in- Chief of the army and navy of the Uni
ted States in all orders tending to the speedy con-
summation of the Governments obligation to the
soldier 1t cannot be said with any force, that the
engagement between soldier and Government can
be fully at an end until some defnitve settlement
be had, and that settlement is the discharge and
payment of the soldier. Mastering soldiers ont Of
service is has and will always be considered the
moment at and from which they are free from the
control of Government and in order to dispatch
the public business in form best suited to the in
teress of both parties, consider that the right Of
the Government to designate the particular pont
whereat the payment and discharge OF tine soldier
is to take place, clearly contained in the various
acts of Congress upon the subject and that it is
vested in the Government of necessity from the
very nature of the contract.
Now let us regard the various laws of Congress
made during the session of 1916. The plaintiff;
were enlisted in conformity with the act of Con.
gress approved May 13, 1916, which said act pro
vdes that the volunteer shall serve to the end o.
the war if not sooner discharged. The Court said
In the construction of that statute, (of May
| 10, 1866 we are aided by the language of the
statutes passed at the same acknowledgement
contemporaries fortiSsiHaG IN Lege The act of JUNE
18th 1916. supplemental to the act of MAY 18th
provides that when the war with Mexico shall be
terminated By treaty Of peace duly concluded ant
ratified, the number of Major Generals In the army
should he reduced to one, etc. Again the act o
June Goth 1916, to provide for the organization
of the volunteer forces provides that the genera
officers to be appointed by the President, under sale
act shall be discharged from service when the wa
with Mexico shall be terminated By a defndip
treaty Of peace duly concluded and ratified. II
both of these statutes, we see Congress defining the
legal termination of the to be defHltlUe treat
of peace d,Ily concluded and ratified"
We fully concur with the Court, that searching
through the various acts of Congress on the same
subject passed at the same session, the properes
way to arrive at true construction of that particu
lar act under which the enlistments were made
and under which the plaintiffs, as matter OF right
sought to be discharged from the service by habed
corpus. This reasoning is rendered yet more pow
erful by tie joint resolution of Congress, approved
on the 10th of June, 1913, which declares that
q On the restoration of peace. with Mexico by
treaty of peace duty ratfed and proclaimed, all tbs
military forces of the United States, whether vol
unteers, regulars or marines, who by law or the
terms Of their engagements are to be discharged a
the close of the war shall, under the direction Of
the President of the United States, be transporeS
or marched with the least practicable delay to sucf
posts or places in the United States as may be leas
| expensive and most convenient to the troops-anIc
/ az such place they shall be discharged from the
service of the United States and that until they
shall respectively reach such places ana oe dis
| paid and treated as in the service of the United
/ States. in the same manner as if the war had moi
cIosed -