The western Democrat. [volume] (Charlotte, N.C.) 1852-1870, 1861-07-02
From the Raleigh Standard
DECISION OF THE SUPREME COURT.

We have been favored by the neP"t'ei " ~ s.
csions of the Supreme Court Win the following nc
ha Ch;f Jnstice assisted by his associates,
which q. it concerns the public service we give
II is marked with the usual ability and cearness OF ms
Honor aud the result will certainty De halieu with
satisfaction by all the f. lends OF the service
~ mr. ,,.rrpD or u.ur1royc GRAHAa-HABEAs CORPUS.
soldier who is under arrest and in confinement tor
q violation of orders cannot procure his discharge oy
means of a writ of habeas corpus on the aeg"',oh ''
he infant at the time OF enlistment NoI can
he or his guardian raise that question before cE
thorties while he is in custody and anenaole 1or
before a military tribunal.
Whether a minor of the age of twenty years who
has enlisted under the provisions OF an act enlteo an
sact TO raise O. 900 State troops and has taken and
subscribed the oath prescribed for enlistment, eHi
tied to discharge the ground of his homage anu
that he enlisted without the consent OF MS guaIo"i
-Quere. 20 ,
habeas corpus returned before his Honor Chlef
Justice who called to his assistance the other Two
Judges of the Supreme Court Inc application was on
the petition of Hamilton c. Graham and his guardian
E G. Haywood.
The petitioners alleged that the said H. c. Graham,
in May 1861 enlisted private soldier by Major
Stephen p. Ramseur into he 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 without the consent Of his
said guardian and that the said orphan had an estate
in the hands of his guardian which was sufficient to
support him without resortng to such service and that
the said H. c. Graham detained by the said s. d.
Ramseur against his will at the encampment OF the said
military company the City of Raleigh.
The prayer is that the said II. C. Graham should be
brought before his Honor the Chief Justice by the said
S. D. RamSeur with the cause of his detention.
Major Ramseur brought forward he body of the said
II. c. Graham and made to the cause of his
detention that the said Graham had enlisted for war
into the company of artillery under his command. and
had taken and subscribed oath forth part of
the return and the 9Th of the then current month
placed by him the commanding officer, in the
guard house for violation of orders and then in,
such custody and awaiting trial by court martial
for said offence.
The matter argued by E. G. Haywood for the
petitioners and the Attorney General for Mai
PEARSON, C. J. Upon the return Of the writ. l re-
queStet Judges Battle and Manly assist and after
hearing arguments bot sides and giving to the sub
jec full consideration, they concur with me in the
opinion that the pctitionef Graham, is not entitled to
his discharge.
1t is admitted that Graham voluntarily enlisted as a
private soldier on the 24th of Nav last and the oath
forms required by law The application is put the
ground that he at the time under the age of
twentyone, and enlisted without the consent of his
guardian.
The meets the Applicant on, IN Hnaine by the
fact that on the 18th instant 'Graham by the order of
the nding officer, put the guard house
positive violation of orders await his trial before
court martial, where he has remained until brought
here in obedience 10 the writ"
To meet this preliminary objection, two positions
relied on:
LIST The statute gives authority to raise by enlist
ment, ten thousand - men," Graham not man,
being under the age of twenty years consequently
the recruiting officer had power make contract
Of enlistment with him and the is void and of
effect.
If the agent acting for of the parties, exceeds
his power the consequence contended for would follow
for instance, if woman was enlisted ; but | do not
adopt this very restricted construction of the
The word " men" must be understood in reference TO
the purpose for which it is used and obviously The
purpose to indicate the sort of persons but
fix the number in the of thousand soldiers
troops So think there defect of power
the part of the recruiting officer and the contract
not be treated a nullity.
I'd. By general rule of law contracts made with
under the age Of twenty years. may be avoided
by him the exceptions contracts for necessarics-
of marriage and apprenticeship, the ground of
benefit to the infant, and is special benefit
infant, arising out Of contract enlist a soldier
to authorize the court to take ont OF the general rule
and make il exception in the absence of legs-
lative provisions such be with in the acts
of Congress of the United States.
This position may be admitted for the sake of the
argument and it does the objection for the
contract not being void, but merely avoidabe. had the
legal effect of establishing the relation of officer and
soldier, which existed ut the time Graham guilty
of diSobedience of orders consequently his act was
unlawful and his and Imprisonment lawful and
he cannot avoid the consequences by going behind his
act and be allowed to imeach the validity of his en-
hstment until he has been discharged by the court
martial. This Is clear otherwise there would be no
difference between void and a 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 pnting Graham in the condition of
private soldier and making him amenabc~as such to
be discharged by it before he be allowed raise
the question before the civil auth.frities as 20 his
further detention being unlawful II such were not the
law all order and discipline in t& army would be
vcrted Would it be tolertc.. that should insin-
uate himself into the condition of a soldier and when
by the dlSobediencc of orders or other violation of
duty the safety of the whole army has been endan-
g"red made the military jurisdiction by being heard
impeach the validity of his enlistment?
For these reasoMs neither the petitioner Graham nor
the other petit. ner, his guardian be allowed to
raise the question, whether the of enlistment
can be avoided by him do not therefore feel at lib
eriy to ehter into the subject intimate any opinion
in respect to it.
Ills considered by me that the petitioner Hamilton
C,Graham he remardcd and put in possession Of Mai
stephen d. Ramseur, and that the latter recover his
costs of the petitioners be taxed by the clerk of the
Supreme Conrt Raleigh
IRANsYLVANIA.-The new county of TranSvl-
vania, formed of portions of Henderson aud jack
son, embracing the upper French Broad country,
Gas lovely region the sun shone upon,
was, as we learn from the Henderson Times, or
ganlzed on the 2Uth ut., and its running GEAR"
put in complete order.
The county seat, Brevard, was located near. and
perhaps, includes the residence Of w. 2. Poor
Esq. known as "Poor's Store" Here the Com
mlssioners have secured 100 acres of land, and
town lots will be laid off and put in market at an
early day. Shelby Eagle.
FIRES IN NORTH CARoLINA-The PETERSBURG
Express learns from gentleman who reached
that city on Monday, that the extensive tobacco