New-York daily tribune., 1861-09-10

Sneing under the Presidents G'aD " vDo
18th OF April, and the response to s :! drsS ,hsi,
of Minnesota and there with Others 'epoei'u .uSa
services TO become volunteer soldiers for NueV Tl
and that they actually accepted ss 81. ona
afterward the President deefning the ha.iW", "a
di ion 10 be perilous aud requiring from him AZ au
f;oral force 10 see the laws executed, assumed the
10 call for ard raise 42O34 volunteers
to serve for the peod Of three year, upless sooner
dichsrped which were 10 be mustered INTO service as
infantry and cavalry. The proportions Of each arm
and the detas Of enrolment and organization were 70
be made known by the Department OF war. Az tne |
sane time the President announced the clrcunslances
which impeed him 20 do So and that ne %oulu fSpot
tL ., Ton0ress ar its coming extra eefsion, relying
mon the measure being approved and adopted oy "
by legislation. ,fe,i II Ano,e, 1861
II appearr also that when this second can was ls,o
bv tha Ptesdent the petitioners andtbe regiment "ee
doing duty as volunteer soldiers Of the United S"'es a
Fort Smelling, under their engagement ior lnlee
but when tie second call beCame Known Ioi VVIna'
decltres In bis return that tine petlllohei anu te
met ten ered their services to become volunteer sg
diers under it for three years or durlng lne war V
time TO be counted from the date OF Their engHBehou'
for three months Col German adds tnat uey We'e
actually mustered into the service OF the Uueu oag
and bis oath ia fully sustained by the affidavit Of H. IL
Brooke examining clerk in the office OF the Pay MASTER
General; by Major Paulding, paymaster; oy ,ne le
turn of Capt Nelson, the officer who was du'noiLou
10 muster the regiment into services by the sehse
of Cart Dowuie, who witnessed the petitioner ng
nature upon the pay.rOll; aud by tho certincdie OF
Adiutsnt-Gen. Thomas; that the papers numbered one
two thee and four, which he then furplsDe1, ana
which were called for by the petitioner, were orgnaI
records of his Office and we're oil that relaed 10 lne
subject matter.
Ihe petitioner does no, deny bis being volunteer
soldier in the actual service Of the Unied States, oui
hi claim il that bic contracts for service. either ior
three months for three years, bad not been MADE
pursuant TO the regulations Of the army that 10 either
case he was entitled TO bis discharge. AND he lnl-
peaches the genuinenes Of the original papers iur'
I l. IA-va IL and a. IN
that upon their face they do not show n compliance
With those army regulations, declaring bow recruits,
either as volunteers or regular soldiers, were TO be re-
ceved or enlisted into tie military service OF toe unteu
| States.
| He complains that the nsture Of the service, the
length of the term, the pay, clothing ratoDs, and
other allowances TO which &die Is entitled by law
before he signs the enlistment were not explained 10
him. That the officer enlisting him did not offer to
hin for bis eienAtufe the declaration requested by the
thirteen hundred and third article Of the kegulatoue
for conducting the recruiting service That he had
not been sworn as recruit or volunteer soldier as re-
qured 70 be by the thirteen hundbed and sixth arti-
Gle Of the Regulations and by the tenth article OF the
Articles OF War. Other object ons OF the same kind
were made in argument in behalf Of the petitioner by
Having fully considered the bearing Of the facts Of
tbe case in connection with the regulations Of the
army, have 70 these conclusions; That there
wRs snch disregard OF them by the officer mastering
them into service though Of them appear 70 have
been omitted in the enrolment Of the petitioner. IL
appears BY the papers, however, that no substantial
regulation essential TO contract Of enlistment had
been disregarded NV conclusion, then in this regard,
is that the particulars directed IN the regulations OF the
army for the enrolment and enlistment OF soldiers into
the service Of the United States, whether ss regular
soldiers or volunteers not essential 70 the validity
of the contract of enlistment where there has been an
actual mastering into the service Of the United States
aud service rendered by the soldier under IT. and that
contract made under such circumstances is binding
upon the soldier and The Government, notwithstanding
tho omission by the mastering officer OF any Formally
| prescribed for the enlistment Of recruit.
That person who has offered himself as volunteer
into the service Of the United StsieS who bar been
| received and accepted as such, and who has been
armed subsisted and paid by the United States ~ a
volunteer and who has rendered service as such can
not deny the validity OF hs enlistment contract OF
his engagement for The number Of years specified In hs
musfer-rol, upon any ground Of informaity OF pro,
ceedng in the enlistment That the muster-rolis hcd
in the War Department and certified TO by an officer
authorized TO muster any volunteer regiment or body OF
men into the service Of the United Stses Official
records, and sfOrd conclusive proof ss between the
soldiers aud the Government, HpOn question OF con-
tinuanee of services any clsn The soldier may make
for q discharge from service; that the soldier
csived and mustered into the service Of the United
States as volunteer soldier at the time and place and
for the period forth in the muHerro and certified
of the mastering officer made, and the persons with
whom they wee made. And that the thlrd section OF
On act Of Congress Of lbe 9th day OF August 1901 le
guzing the acts, pTOcamations, and orders OF the
President after the 4th OF March, 1861 respecting full
army and navy, and calheg out and relating 70 the
militia and volunteer Of the States, is constitutional
and valid as If they bad been Issued and done under
the previous authority and direction Of Congress.
1t is my opinion that Congress has Constitutional
power 10 legaze ard confirm executive acts proclamE-
lions and orders done for the public good, although
they DOt, whom dohe, authorized by any existing
laws. That s1eh legislation by Congress may be made
10 operate retroaCiiyey, 20 eOutirm what may have
been done under such proclswaiOns and orders,
to be binding upon the Government IN regard TO con-
tracts.
That the soldiers who volunteered uDder either the
first OF second cal Of the President Of tho United
Stsles, and who accepted into service entered
into contract by which they were TO be armed,
equipped, sabssted and paid according 10 iaw anc are
entitled TO the pension and bounty bestowed upon them
aud their wives and children by Congess, snd for this
consideration they bound 10 faithfully for the
term for which they mustered into the service
unless sooner discharged, notwithstanding the failure
Of the musering officer 70 aduinster the oath 20 them
presc1bed by the tenth article OF the Articles OF War
That soldiers who volunteered under the frst procla
stion OF the President for three months might after
ward with the consent Of the Government, volunteer
and tender their services for longer time, ppon call
Of the President of the United States; and that upon
having done and being accepted and mustered into
service, they bound 20 serve as soldiers until the
expiration Of their second engagement.
1t my Judicial opinion upon this csse that II ap.
pears a at the lst Minnesota regiment were duly mus-
tered into the service Of the United States at FOr
Smelling, on the 9th Of May, for the period OF three
years, during the war; and that Edward A. Stevens
tuOJecb 10 te fcndDutu Notwithstanding posi-
ton, into military custody; and therefore make the
following order:
Ordered, that the writ Of habeas corpus ad s1bcen.
dun, awarded by a prior day, TO w.t. tho 10th
inst upon the application Of Edward A. Stevens tue
petitioner aforessd he and the same 10 heroSy dis
charged and that the aforeaid Edward A. Stevens be
and be is hereby remtted to bis military duty in The
LIST Minnesota regiment, commanded by Col Willis A.
Gornan; and that until then he remain in the custody
Of the Tn States MaTshal for this District.
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