Weekly standard. [volume] (Raleigh, N.C.) 1858-1865, 1861-06-26
Dsci.ioa q ne suprssus csurt.

We have been favored by tho Reporter Of the de- !
cisions Of the Supreme Court with the following de-
cson Of the Chief Justice assisted BY his associates
which as it concerns the public service We give
tire His marked with the usual ability and clear
ness pf his Honor and the result will certainly be
hailed with satisfaction by all the friends of the SER
vice:
IN TIE MATTER OF HAMILTON c. GRAHAa-HABEAs
CORPUS. ~. p
soldier who is under arrest and in confinement
for violation Of ORDERS cannot procure his discharge
by means OF writ of habens corpus the allegation
ttat 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 a military tribunal
Whether minor Of the aye of twenty years who
has enlisted under the provisions of the act entitled
an act to raise 10000 State troops" and has taken
and subscribed the oath prescribed for enlistment,
is entitled to his discharge the ground Of his non
age and that he enlisted without the consent of his
guardian Jure.
Chief Justice who called to his assistance the other
two Judges Of the Supreme Court The application
was on the petition of Hamilton c. Graham and his
guardian E. G. Haywood
The petitioners alleged that the said H. G.. Ora
ham, in May 1851, was enlisted as 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 II. 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 bis Honor the Chief Justice by
the said s. D. Ramseur with the cause Of his deten-
ton.
Major Ramseur brought forward the body of the
said H. c. 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, (sct
forth part of the return and on the 18th of the
then current month was placed by him as the com.
handing officer, in the guard house for violation
Of ORDERS and was then in such custody and awaiting
a trial by court martial for said offence
The matter was argued by E. u. Haywood for the
petitioners and the Attorney General for Major
Ramseur.
PEARSON, G. j. Upon the return of the writ, I
requested Judges BATTLE and MANLY, to assist me-
and after hearing arguments on both sides and CIV
ing to the subject full considera ton, 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
a 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 Ln.iae, by
the fact that on the 18th instant "Graham by the
order of the commanding officer put in the guard
house for positive violation of ORDERS to await his
trial before court martial where lie 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 "nsen ;" Graham was not man,
being under the age of twenty years conse-
quently, the recruiting officer had no power to make
a 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 'm,en" 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.
I'd. By general rule of law contracts made with
one, under the age of twentyone years. may be avoid
eddy him heexceptions contracts for necessaries
of marriage and apprenticeship, the ground of
benefit to the infant and there is special benefit
to an infant arising out of a contract to enlist as
soldier to authorize the court to take it out Of the
general rule and make 1t exception in the absence
of legislative provisions such as are to be met
with in the acts Of Congress of the United States
-. L. l.
argument and it does not meet 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 at the time Ora
ham was guilty of disobedience of ORDERS conse-
quently his act unlawful and his arrest and in
prisonment lawful, and he cannot avoid the conse-
quences by going behind his act and be allowed to
impeach the validity of ais enlistment until he has
been discharged by the court martial This is clear
otherwise there would be no difference between a
void and voidabe 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 amena5le as 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 SUBJ
verted Would it be tolerated that one should in
sinuate himself into the condition of soldier and
when by the disobedence 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 en-
listment can be avoided by him. do not therefore
feel at liberty to enter into the subject OF intimate
| any opinion in respect to it
1t Is considered by me that the petitioner Hamil.
ton @. 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 are Breaking.
The PresbYtery Of Orange at its 1s9d session, held
last week In Oxford, N. G., passed the following re-
solutions:
II. That the events that have happened, and the
1