Cleveland morning leader. [volume] (Cleveland [Ohio]) 1854-1865, 1861-09-19
Decision Of ladse TIldOn Conosrnlss the
RnilstiaE OF Minors.

eWokNug hobblAG up tAot = boAeAeA OkaeA Y
the commanding general forbade the dis
charging of minors who had been sworn in
TO service.
Yesterday the case was brought up befor,
Judge Tildon, and tho following Is his de
cision:
This is the third proceeding had beior,
me upon habeas corpus for the discharge
Of minors from their enlistment into The
service of the United slates.
] In the present imperiled condition Of the
/ country, have regaded myselfas discharg-
ing a very responsible and delicate duty IN
deciding upon these cases, and have there
fore examined this case with all the care
that my limited opportunity would admit
Tho father being dead, the affidavit in
this case was made by the mother Of Will
liam P. Lockwood, and sets forth that Lock-
wood is minor, but a few months past
seventeen years Of age, and has been enlist
ed into Company A of the 4lst Regiment of
Ohio Volunteer Militia, The writ is direct
ed to William B. Hpzsn, Col. of the Regi-
ment. The return admits the enlistment,
and further states that about three weeks
ago, Lock wood was mustered into the U. s.
Army.
The discharge Of Lockwood is asked for
under this proceeding, on the ground that
the consent Of the parent was not given to
this enlistment.
The law of 1862 enacts that each and
every able bodied white citizen of the re-
spective States, who shall be of the age of
eighteen years and under the age of forty
five, shall severally and respectively be en-
rolled by the Captain or commanding officer
of the company within whose bounds such
citizen may reside.
By the law OF 1874, each and every re-
cruiting officer is authorized to enlist into
the army Of the United States, any free, eff
ieetive, able-bodied man between the ages
of eighteen and fifty, which enlistment
shall be absolute and binding upon all per-
sons under the age of twenty years.
] This statute further provides that it shall
not be lawful for any recruiting officer to
/ pay or deliver to any recruit under the age
OF twenty ono years to be enlisted by this
act, any bounty or clothing, or in any man
ner restrain him of his liberty until after
the expiration of four days from the time
of his enlistment and it shall be lawful
for any recruit, at any time during said four
days to reconsider and withdraw his enlist
ment and therefore, he shall be forthwith
discharged and exhonerated from the same,
The law repealed 30 much of an act pass
ed in 1913 as required in writing of the
nearest guardian or master to authoriae the
enlistment of persons under the age of
twenty yone years.
do not find that this law Of Is4I under
went any change until September, 1885,
Under it the consent Of the parent, guardian
or master was not required, but the minor
was allowed four days after enlistment 70
reconsider and to dissent from the contract
of enlistment, not doing this within the time
limited, he becomes legally enlisted soldier
in the army of the United States.
The statute Of 1860 declares that it shall
be the duty Of the Secretary of War to order
| the discharge of any soldier Of the United
States who at the time of his enlistm ent was
under the age of twenty -one years upon evil
dence being produced to him that such en-
| listment was without the consent of the
guardian or parent, This is all the law
find bearing upon this subject.
While there is no positive law against the
enlistment of minors, if Of age to be enroll
ed in the militia, even though there be no
consent OF the parent or guardian given, yet
| if this consens be wanting, it is the duty of
| the Secretary of War to discharge such mi
| nor from the enlistment. To avoid these
/ appeals to the Secretary, notice that the
blank forms of enlistment have blank forms
for the consent of the parent or guardian in
/ the case of miners,
Inasmuch then as the enlistment Of all
minors Of eighteen years of age and up
wards, are valid qntilsnnulled by the actiQn
OF the Secretary of War, it may be ques-
ton whether the minor can make his appeal
TO any other tribunal to be discharged from
his enlistment.
The law of July, 1881, which authorizes
the raising of our present volunteer force, in
no way defines who may volunteer and mus
tered lpto the service. The language of the
law is general. It is not confined to age, sex
or condition. The law did nst surely iptead
70 embrace all persons within its proYisiohsy
aud to what class Of persons shall it be lin
tied; clearly to that class which by the law
Of Congress- each State is required to enroll
as its nilitiaJ teat ig to say, all white able
bodied citizens between the ages OF eigntssn
aud fifty. TherefTe the enlisting and mus
| tering Into the service minor under the age
Of eighteen years, ss in this case, is an act
Unauthorized and void,
l. Bus the point of greatest emberrass.
ment in the case is that Of the jurisdiction
of Probate Judge of Ohio to determine up
on the legality Of an enlistment made un-
der authority of the United States.
have had but little opportunity to con-
sult authorities upon this poIgt The first
case to which have referred is that Of Ier-
emiah FurgusOn (9, j. r. upon an spplica-
tion made to the Court for an allowance Of q
writ of habeas corpus, directed toJohn Chris
tie, a Lieutenant Colonel in the army of the
United States. The application was found
ed upon the affidavit of the father of Fergu-
son, that bis son of the age Of II years and
months had beeH enlisted without his
consent. Upon these facts Kent ca. ]. in
deciding the case said we have either no ju-
risdiction at all or a completely concurrent
: Jurisdiction in granting relief upon hdbsGs
corpus, in all cases of unlawful imprison-
ment by an officer of the United States un-
der color or by pretext Of authority Of the
| United States.
The present case being one under cover Of
authority Of the United States, and as an
officer Of the federal courts hiss complete
and perfect Jurisdiction of the case, and
there is no need of the Jurisdiction or inter
, ference of the State Courts nor does it ap-
-. pear to me to be fit that the State Courts
, should be ipquiring into the abuse of the
! exercise of the authority of the General
GOVERNMENT; numbeTless cases may be sup
! posed of the abuse Of power, By the civil
/ and military officers Of government of the
United States, but the Courts of the United
? States have competent authority TO correct
, all such abuses, and they are bound to exer
: else that authority. The responsibility il
with them and not with us.
The application for the writ in this case
E was refused.
But the decisions in this class of casel
have not been uniform. "In the matter o
Carlton %, Com. R. a minor enlisted into
| the army of the United States without su
: thority Of the parent, Savage, Ch. j., held
1 that the State had jurisdiction. Also, in tn
a case Of Nathan Murray (12 N. H. Rep,
Murray vas a minor and enlisted into tn
army Of the United States without the con
3 sent of his parents. The question Of juris
: diction was made, Parker Ch. j., " the OBJ
4 lection cannot be maintained that this is
case arising under the constitution and law
e of the United States, OF which the courts o
! that government have exclusive jurisdic
q tion.'
! If the laws of the United States iustif
the detention Of the applicant, there is no
thing illegal. If they do not, il is not . cas-