Semi-weekly standard. [volume] (Raleigh, N.C.) 1853-18??, 1861-06-26
Decision of the supreme Court.


cson of the Chief Justice assisted by his associates
which as it concerns the public service, we give en-
tire. 1t is marked with the usual ability and clear
ness of his Honor and the result will certainly be
hailed with satisfaction by all the friends of the
vice:
IN THE MATTER OF HAMILTON C. GRAHAM-HABEAs
CORPUS
soldier who is under arrest and in confinement
for violation Of orders cannot procure his discharge
by means of writ of hG6eGs corpus on the allegation
that he was an infant at the time of enlistment
Nor can he or his guardian raise that question be-
fore civil authorities, while he is in custody and
amenable for trial before military tribunal.
Whether a minor of the age of twenty years who
has enlisted under the provisions Of the act entitled
an act to raise 200 State troops" and has taken
and subscribed the oath prescribed for enlistment
is entitled to his discharge on the ground Of his
age and that he enlisted without the consent of his
guardian .ure.
A ha6sas corpus was returned before his Honor
Chief Justice who called to his assistance the other
two Judges of the Supreme Court. The application
was on the petition of Hamilton G. Graham and his
guardian E. G. Haywood
The petitioners alleged that the said Ii. G. Ora
ham, IN May 1851, was enlisted private soldier
by Major Stephen d. Ramseur into the company
called the Ellis Light Infantry; that he was then
an orphan without father or mother and but twenty
years old, and that such enlistment was made with
out the consent of his said guardian, and that the
said orphan had an estate in the hands of his guar
dian which was sufficient to support him without
resorting to such service and that the said H. G.
Graham was detained by the said S. d. Ramseur
against his will at the encampment of the said mill
tary company near the City of Raleigh.
The prayer is that the said H. c. Graham should
be brought before his Honor the Chief Justice by
the said S. D. Ramseur with the cause of his deten-
tion
Major Ramseur brought forward the body of the
said h. g. Graham and made return as the cause of
his detention that the said Graham had enlisted for
war into the company of artillery under his COM
mand, and had taken and subscribed an oath, (set
forth as part OF the return and the 18th Of the
then current month was placed by him as the CON-
handing officer, in the guard house for a violation
of ORDERS and was then in such custody and awaiting
trial by court martial for said offence.
The matter was argued by E. G. Haywood for the
petitioners and the Attorney General for Major
Ramseur.
PEARSON, c. j. Upon the return of the writ,
requested Judges BATTLE and MANLY, to assist me,
and after hearing arguments on both sides and CIV
ing to the subject full consideration, they concur
with me in the opinion that the petitioner, Graham
is not entitled to his discharge.
1t is admitted that Graham voluntarily enlisted as
private soldier on the oath of May last, and the
oath was taken and subscribed by him according to
the forms required by law. The application is put
on the ground that he was at the time under the
age of twentyone years, to wit of the age of TWEEN
ty, and enlisted without the consent of his guardian
The return meets the application, in linline by
the fact that on the 18th instant Graham by the
order Of the commanding officer was put in the guard
house for positive violation of orders to await his
trial before court martial where he has remained
until brought here in obedience to the writ
To meet this preliminary objection, two positions
| were relied on
1st The statute gives authority to raise BY enlist
ment ten thousand "neen :" Graham was not a man,
| being under the age of twenty-one years conse-
quenty, the recruiting officer had power to make
contract of enlistment with him and the contract
| is void and of no effect.
If the agent acting for Of the parties, exceeds
his power the consequence contended for would fol-
! low; for instance, if woman was enlisted; but /
do not adopt this very restricted construction of the
statute. The word "nen" must be understood in
reference to the purpose for which it is used, and
obviously the purpose was not to indicate the sort
Of persons, but to fix the number in the sense of
"ten thousand soldiers or troops" So think there
was no defect of power the part of the recruit
ing officer and the contract cannot be treated as
| nullity.
3D. By general rule of law contracts made with
one under the age of twenyone years. may be avoid.
eddy him. the exceptions contracts for neceSsaries
of marriage and apprenticeship, on the ground Of
benefit to the infant and there is special benefit
to infant, arising out of contract to enlist as
soldier to authorize the court to take it out of the
general rule and make it exception in the absence
of some legislative provisions such to be met
with in the acts of Congress of the United States
This position may be admitted for the sake of the
argument, and it does not meet the objection for
| the contract not being void, but merely avoidable
had the legal effect of establishing the relation of
officer and soldier, which existed at the time Ora
| ham was guilty of disobedience of orders, conse-
quently his act was unlawful and his arrest and i'm
prisonment lawful and he cannot avoid the conSe-
quences by going behind his act and be allowed to
impeach the validity of MS enlistment until he has
been discharged by the court martial This is clear;
| otherwise there would be no difference between o
void and voidable contract whereas the latter has
legal effect and continues until it is avoided and in
this instance the contract had the legal effect of
putting Graham in the condition of private soldier
| and making him amena5e such to military law,
| and that having attached to him. he must be dis
charged by it before he be allowed to raise the
question before the civil authorities as to his further
| detention being unlawful If such were not the law
| all order and discipline IN the army would be sub
verted Would it be tolerated that one should in
sinuate himself into the condition of a soldier and
when by the diSobedience of orders or other viola
ton of duty the safety Of the whole army has been
endangered, made the military jurisdiction by being
heard to impeach the validity of his enlistment?
For these reasons neither the petitioner Graham
the other petitioner, his guardian can be allow
ed to raise the question, whether the contract of
listment be avoided by him. do not therefore
feel at liberty to enter into the subject, intimate
any opinion in respect to it.
1t is considered by me that the petitioner Ham-
ton G. Graham be remanded and put in possession
of Major Stephen D. Ramseur, and that the latter
recover his costs of the petitioners to be taxed by
the clerk of the Supreme Court at Raleigh
The Last Links Breaking.
The Presbytery of Orange at its 1s2d session. held
last week In Oxford, N c., passed the following
solntionS.