The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1875-10-13
ENLISTMENTS OF ALIENS IN MILITIA
REGIMENTS

A decision was given yesterday by Judge Lawrence
holding Supreme Court, Chambers, upon the applca
lion for the discharge Of Fritz Schulz from Ludlow
Street Jail where he has been confined pursuant to
the decision of regimental court martial, for non
payment Of fines imposed for nonattendance al drills
and parades Of the Fifth regiment, \. Y. 5. NJ, Of
which be Is a member The matter came up,
as already announced in the HERALD, under writs
Of habeas corpus and certiorari obtained with a
view to the question Of jurisdiction Of the Court
and whether Schulz properly enlisted. The claim is
that not being citizen and not having declared his in
tentions he is subject military duty and therefore
not eligabe TO membership in any Of our State
militia regiments On the other hand, It is conended
that this being voluntary enlistment on his part the
same was legal and that Schulz subject to all the
obligations imposed upon him member Of the reg-
ment The question raised, as viii be seem is an i'm
portant one as It affects the alien members Of our
National Guard which in this city is made up Of fully
two thirds OF those Of foreign birth who are neither
citizens nor have declared their intention TO become
such and many Of whom under the slightest legal pre-
text would avail themselves Of the opportunity TO dodge
further military service The following IS Judge Law
rence's opinion in the case:-
II was conceded in the argument that the petitioner
not at the time he enlisted and is not now citizen
OF this State and that he had not declared his nen-
ton to become a citizen. II Is quite clear, therefore,
mar under the provisions or the Military Code OF this
State the petitioner not, at the time he enlisted
subject to military duty Code, sec. l. chap So Laws
1901 II Is claimed, however that the thirteenth sec
ton OF the Military Code which provides that '.yolun
teers may be received and enlisted in any troop, bat
terry company district not indicates an intention
the part Of the Legislature to allow those not sub
ject military duty to waive their exemption and vol
unfairly submit themselves to the Obligations duties and
penalties prescribed by said code perusa OF the act
convinces that this view is correct There would
seem to be necessity for providing for
voluntary enlisments il the volunteers could only be
draX
performance Of military duty. II | am right in this
construction OF the law then il follows that il was per-
ecty competent for Schulz to volunteer and enlist
member OF Company in the Fifth regiment, and that
by doing he became liable to be fined If he did not
comply with the rules and regulations OF the company
The return, therefore, of the keeper Of the County
Jail seems to to show that Schulz Is
court martial which had jurisdiction OF his person,
and which authorized to commit hum 70 the GUS
tody of such keeper in default of the collection OF such
fine imposed upon him by a levy upon his goods and
chaties The objection made 10 the warrant of com
mitment that ii does specify the time TOR which
the delinquent is to be imprisoned does to me
material 1t is stated the warrant that the total fine
imposed upon the petitioner is the sum OF S4 and Ia
jaor required keep said delinquent closely con-
fined in the and during the time required by law
and until discharged according 70 law Inc warrant is
drawn In the exact language Of the 2l4th section Of
the Military Code which provides that in default OF
sufficient goods and chattes OF the delinquent TO satisfy
the ne the Marshal is then TO take the body Of such
delinquent and convey him TO the common jail Of such
city county, whose aer shall keep the said delinquent
closely confined, without bail or manprise. for two
days for any fine or penalty exceeding 81,
and two additional days for every dollar above
that sum, unless the fine and penalty, together with
the costs and the jaers fees, be paid but no
such Imprisonment shall extend beyond the period Of
twenty days" The duty of the jaer Is thus ex-
pressy defined by the law, and the warrant states
the amount Of the ne he Is informed by the warrant
that the is in which prisoner must suffer the
maximum Imprisonment provided by the law, unless
he sooner discharged by the payment Of the fine and
jaller's fees, unless under the subsequent
provision OF the statute he Is liberated
by order of the commandment Of the division brigade
20 which he belongs The petitioner also urges
ground for his discharge that he signed the enlistment
paper, but, being German by BIRTH he does not
dersand the English language perfectly; that he did
read the paper and did not and does not know what
IL contained and that he did to it before the
person before whom the oath purports to have been
taken. This allegation amounts TO charge OF fraud in
the matter Of the enlistment II the enlistment was
frauduently obtained il was no enlistment, and the
petitioner is entitled 10 be relieved from it, ! will hear
the allegations and proofs Of the parties Subsequent
70 tue rendition Of the above decision by consent OF tho
counsel for the regiment the prisoner discharged
on his parole II further arranged that evidence
be taken upon the allegation of fraud the enlistment