In re Graham, 53 N.C. 416, 8 Jones 416 (1861)

Aug. 1861 · Supreme Court of North Carolina

53 N.C. 416, 8 Jones 416

IN THE MATTER OF HAMILTON O. GRAHAM. HABEAS CORPUS.

A soldier who is under arrest, and in confinement for a violation of orders, cannot procure his discharge by means of a writ of habeas corpus on the allegation that he was an infant at the time of enlistment. Nor can he or his guardian raise that question before the civil authorities, while he is in custody, and amenable for trial before a military tribunal.

Whether a minor of the age of twenty years, who, enlisted under the provisions of the act entitled an “ an act to raise 10,000 State troops," and has taken and subscribed the oath prescribed for enlistment, is entitled to his discharge on the ground of his nonage, and that he enlisted without the consent of his guardian, quereP

A habeas corpus was returned before his Honor the 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 IT. C. Graham, in May, 1861, was enlisted as a private soldier by Major Stephen H. 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 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 resorting to such service, and that the said H. O. Graham was detained by the said S. D. Ramseur against his will at the encampment of the said military ¿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 detention.

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 the war into the company of artillery under his command, and had taken and subscribed an oath, (set forth as part of the return,) and on the 15th of the then current month, was placed by Mm, as the commanding officer, in the guard house for a violation of orders, and was then in such custody, and awaiting a trial by a court martial, for said offence.

The matter was argued by E. G. Maywood for the petitioners, and the Attorney General for Major Ramseur.

Pearson, C. J.

Upon the return of the writ, I requested Judges Battle and Manly, to assist me, and after hearing arguments on both sides, and giving to the subject full consideration, they concur with me in the opinion that the petitioner, Graham, is not entitled to his discharge.

It is admitted that Graham voluntarily enlisted as a private soldier on the 24th 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 twenty-one years, to wit, of the age of twenty-, and enlisted without the consent of his guardian.

The return meets the application, in limvne, by the fact that on the I5th 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 a 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 enlistment, ten thousand “ men;” Graham was not a man, being under the age of twenty-one years; consequently, the recruiting officer had no power to make a contract of enlistment with him, and i the contract is void and of no effect.

If the agent, acting for one of the parties, exceeds his power, the consequence contended for would follow; for instance. if a Woman was'enlisted ; but I do no adopt this very restricted construction of the statute. The word “ men” 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 of troops.” "So, I think there was-no defect of power on' the part of the recruiting officer, and the contract cannot be treated as a nullity. :

2d. By' a general rule of law, contracts made with one, tinder the age of twenty-one years, may be' ávoided by him ; the exceptions are contracts for necessaries — of marriage and appréñtic'eship, on the ground of benefit to the-infant, and there is no special benefit to an infant, arising out of a contract to enlist as a soldier to authorize the Court to take it out of the general rule and make it an exception in;the absence of some legislative provisions, such as are 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 moot the objection ; for the contract, not being void, but merely voidable, had the legal effect of establishing the relation of officer and soldier, which existed at the time Graham was guilty of disobedience of orders, consequently, fiis act was unlawful, and his arrest and imprisonment lawful, and he cannot avoid the consequences-by going behind his act and be allowed to impeach the validity of his énlistment until he has been discharged by the court-martial. This is cleat I otherwise there would be no difference between a 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 putting - Graham in the condition of a private soldier', and making him’ amenable as such, to military law, and that having attached to him, he •must be discharged by it, before he can 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 arid discipline in the army would be subverted. Would it be tolerated that one should insinuate himself into the condition .of a soldier, and when by the disobedience of orders or other violation of duty,Alie safety of the whole army has been enclangored, evade the military jurisdiction by being heard to impeach the validity of his enlistment ?

Eor these reasons, neither the petitioner Graham, nor the other petitioner, his guardian, can be allowed to raise the question, whether the contract of enlistment can be avoided by him. I do not, therefore, feel at liberty to enter into the subject, or intimate any opinion in respect to it.

It is considered by me, that the petitioner, Hamilton 0.-Graham, be remanded and put in possession of Maj. Stephen D. Eamseur, and that the latter recover his costs of the petb turners, to be taxed by the clerk of the Supreme Court at Ealeigh.

* V* Addendum : The Reporter is requested to state that the case of Billups v. Riddick, decided at the last term, ante 163, which purports to have been decided by Judge Howard, was never seen by him, but was made up by the counsel and a pro forma judgment entered as they had agreed.