The national Republican., 1861-09-10


OF enrolment on the Goth day of April, unless
snoner discharged, and did, after the 90th day
OF juno, 1861, receive from Il, Paulding, pay.
master OF the United States, tho sum of$22.7s, rs
day of juno aforesaid. and IN the presence Of
Mark W. Downie, captain q i'd company B.
did sign his name on said psy. oil for receipt
and acknowledgment Of said paymen
and original papers, on ale in the War Depart.
ment, relating to the enrolment, mastering
and pay of the aforesaid company B. first regi:
ment Minnesota volunteers, to which the said
Edward A. Stevens belongs.
In testimony whereof, have hereunto set
my hand, at the Adjutant Generals tffice, this
18th day Of August, 1861.
L. THOMAS,
Adjutant General U. s. A.
The petition, then, and the return, disclose the
following facts: That the petitioner repaired
to Fort Smelling, under tho Presidents procla.
nation Of the 18th of April, and the response
to it by the Governor of Minnesota, and there,
with others, rendered their services to become
vol dnteer soldiers for three moaths, and that
they were actually accepted rs such. That
afterwards the President, deeming the national
| condition to be perilous, and requiring from
him an additional force to see the laws execu.
ted, assumed the responsibility to call for and
raise forty.two thousand and thirty:four volun.
teers, to serve for the period of three years,
| unless sooner discharged, which were TO- be
| mustered into service as infantry and cavalry.
The proportions of each arm, and the details OF
enrolment and organization were to be made
known by the Department OF War. AT the
same time the President announced the cir.
cumstances which impelled him to do 80, and
that he would report them to Congress at its
coming extra session, relying upon the meas
ure being approved and adopted by 1t by legis-
laton.
| That has been done by the act of eth of Au
gust, 1861. It appears Also, that when this sec
Ond call was made by the President, that the
petitioner and the regiment were doing duty MS
volunteer soldiers of the United States at Fort
Smelling, under their engagement for three
months, but when the second call became
known Colonel German declares in his return
their services to become volunteer soldiers
under II for three years, or during the war
the time to be counted from the date Of their
engagement for three months. Colonel German
service of the United states, and his oath is
fully sustained BY the affidavit Of E H. Brooke,
| examining clerk In the office of the Paymaster
General; by Major Pauldipg,, paymaster; by the
return Of Captain Nelson, the officer who was
authorized to muster the regiment into service;
by the signature OF Captain Downe, who wit.
messed the petitioners signature upon the pay.
roll; and by the certificate of Adjutant General
Thomas, that the papers numbered !, 2, 3, and
4, which he then furnished, and which were
called for by the petitioner, were original re.
cords Of his Office, and were all that related to
the subject matter.
| The petitioner does not u6ny Dis DelnR u
volunteer soldier, in the actual service of the
United States; but his claim is that, as his con-
| tracts for service, either for three months or
for three years, had not been made pursuant
to the regulations Of che army, that in either
case he was entitled to his discharge ; and he
impeaches the genuineness of the original pa.
Ipers furnished by the adjutant general, and
also declaring that, upon their face, they do
not show compliance with those army regu.
tons declaring how recruits, either as volun.
teers or regular soldiers, were to be received
or enlisted into the military service of the Unit
ted States.
lie complains that the nature of the service,
the length Of the term, the pay, clothing, ra.
tions, and other allowances Of which soldier
is entitled by law before he signs the enlist.
ment, were not explained to him that the oh'
Ger enlisting him did not offer to him, for bis
teen hundred and third article Of the regula.
tions for conducting the recruiting service
that he had not been sworn, as II recruit or
teen hundred and sixth article Of the regula.
tions and by the tenth article Of the articles Of
war. Other objections Of the same kind were
made in argument in behalf Of the petitioner,
by his counsel.
Having fully considered the hearing of the
facts of the case, in connection with the regu.
lations of the army, l have come to these con.
clusons: that there WAS no such disregard oi
them by the officer mastering them into service
though some Of them appear to have been
omitted in the enrolment Of the petitioner. IT
appears by the papers, however, that no sub
stantial regulation essential to contract OF
enlistment had been disregarded. My conclu.
sion 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, either rs regular
soldiers or volunteers, are not essential to the
validity Of the contract OF enlistment, where
there has been an actual mastering into the
service of the United States, and service rem
dered by the soldier under it, and that con-
tract made under such circumstances is binding
upon the soldier and the Government, notwith
} standing the omission by the mastering officer
of any formality prescribed for the enlistment
of recruit.
That person who has offered himself as
: volunteer into the service Of the United States
who has been received and accepted rs such
and who has been armed, subsisted, and paiC
by the United States as a volunteer, and who
h ,s rendered service rs such, cannot deny the
, validity of his enlistment or contract of his
engagement for the number of years specified
!, in the muster-roll, upon any ground of infor
m ,lity If proceeding in the enlistment. Tha,
!, the muster.rolls filed in the War Department
! and certified to by an officer authorized tt
muster any volunteer regiment or body Of mer
into the service of the United Stales, are officia
records and afford conclusive proof, as between
the soldiers and the Government, upon a ques
! ton of continuance of service, or any claim
! the seldier may make for Il discharge from the
! service; that the soldier was received and mus
! tered into the service of the United States AZ
volunteer soldier at the time and place. and fol
the period set forth in the muster.roll and Ger
tilted of the mastering officer.
1t is my opinion that Congress has cOnstitu
, tional power TO legalize and confirm Executive
! ! acts, procamations, and orders done for tho
public good, although they we're not, wheI
done, authorized by any existing laws. Tha
snch legislation by Congress may be made t.
operate retroactively, to confirm what may
have been done under such proclamations ant
orders, SO rs to be binding upon the Govern
ment in regard to contracts made and the per
sons with whom they were made =; and tha
9 the third section of an act of Congress of tn,
9th day of August, 1861, legalizing the acts
a pr0clamations, and orders of the President
!. after the 4th of March, 1861, respecting tn,
I army and navy, and calling out and relating Il
the militia and volunteers of the States, Is con
stitutional and valid, as if they had been issue,
4 and done under the previous authority an,
r direction of Congress.
n That the soldiers who volunteered under eithe
r the first or second call of the President of tn,
United States, and who were accepted into ser
v vice, entered into a contract by which they