25 How. Pr. 149 | N.Y. Sup. Ct. | 1863
The facts in this case, established in part by proof, and in part by the concession of the parties,
He had a father and mother, both living at Utica at that time; and it is conceded that no written or verbal consent was obtained from either to his enlistment, nor does it appear that they had any knowledge of his enrollment. The father subsequently died while the son was in Virginia, and during his lifetime took no measures to obtain the discharge of his son. The latter remained with the regiment, in Virginia, until the 14th of September, 1862, when he left it without leave, and subsequently returned to Utica, where he remained with his mother for the space of some four months, and in March last was arrested as a deserter and sent back to the regiment, returning with it under arrest, and is now so held, and subject to be tried by a court martial for desertion.
He received pay as a private from time to time, the last payment having been made to and receipted by him on the first day of July, 1862, and from the wages thus received for his past services he sent $15 to his mother, which she received and applied to her own use. She now applies for his discharge, and it is made distinctly to appear that at the time of his enlistment he was only fifteen years of age, and that no written or other consent was obtained from his parents. His time of service will not expire, by the terms of his enlistment, until the month of August next, but it does not appear that his mother was ever apprised of the
Upon these facts, I have arrived at the following conclusions, which I here indicate without elaborating:
1. If Beswick, at the time of his enlistment, had in point of fact been of the age of eighteen, the enlistment would have been in my judgment perfectly valid, without any consent whatever of his parents. The government of the United States has a right, whenever it thinks the exigencies of the country require it, to command the services of any of its citizens, and it is the sole judge of that necessity. If it so determine, it may enforce its right to command such service, and thus override the usual and legal claims of parents or guardians. The government may, under the authority of acts of congress, define the qualifications of those whom it calls into the service, and the age at which it is competent for them to enlist, and prescribe the duties of enrolling officers. It may make the consent of parents or guardians necessary for a valid enlistment, or may altogether dispense with such consent. In the army of the United States (as distinguished from the militia or the volunteer service) it was necessary until a very recent period that every recruit should be of the age of twenty-one years in order to render his own enlistment valid, and no one under that age could be enlisted without the consent in writing of either parent or guardian. In the volunteer service, however, there is .no such restriction that I have been able to find. The subject of the qualifications and age of recruits has, by congress, been left to the discretion of the executive department, and the President has indicated and prescribed the age of eighteen as the minimum age from which enlistments could be made.
2. The recruit in this case stated and swore on his enlistment that he was eighteen years of age. This to the recruiting officer seemed to dispense with the necessity of any inquiry after his parents, with a view to the procuring of their consent. How far is this oath conclusive, and does it estop any and all parties from thereafter alleging the contrary? The same act of February, 1862, declares that the oath of enlistment shall be conclusive as to the age. Effect can be given to this enactment by holding it to be conclusive as between the government and the recruit. He cannot be heard to allege the contrary, and the government must on its part recognize his position and rights. But it cannot, I think, be held to estop the master or the parent who sets up a claim to the person and a right to the services of the minor. He cannot by taking a false oath thus conclude those who make such a claim from asserting it through the proper legal tribunals. So it has been held by Judge Brown in the case of Webb, (24 How., 241,) and I concur in his opinion.
3. It being now established that Beswick was only fifteen years of age when he enlisted, and there having been no express assent, can he now be held on the ground of an implied assent on the part of his parents to his continu
But in this case I am inclined to think the right has not been lost. After the enlistment of the minor he remained but a day in this county, and was so soon removed to the army, and kept there at such a distance, that no proceeding could well be taken and prosecuted without very great difficulty. The parents were poor, and very incapable of employing counsel to see to their rights, or advise them if they had any; and perhaps it would be charitable to give them credit for more patriotism than has always been found in this community, and among those who might have been willing to aid them in withdrawing their son from the service of the country, so that for a season and at the time of our apparent great danger, they were, perhaps, willing he should contribute his aid to the defence of our periled institutions. The reception of a part of his wages by the mother is claimed as a strong act of recognition. It does recognize the act of his having earned them in the service, and would be a bar to any claim for the past, but is it to be construed as a ratification of the original act of enlistment and for the entire term ? It is like the act of a parent who has received a part of the compensation of a minor son earned by him io an employment to which the father did not originally consent. It is in law deemed so far an assent that the father cannot allege the invalidity of the contract as to the past, nor maintain any action for such services, or for an enhanced compensation. But does it preclude the parent from put
I think the mother should not be held to have waived her right to present the claim, because she did not assert it when her son appeared and remained at home for some months after his desertion. It does not appear that she ever knew the period for which lie- had enlisted; and as she knew there had never been any consent to his enlistment, she might not unreasonably have concluded that he could be held no longer than he chose to stay, and could not again be compelled to serve in the ranks. Under the circumstances, a very stringent rule should not be applied to her, and I think she should not be denied the opportunity of at least presenting her claim.
4. If the case stopped here, the result would be pretty obvious, and I should have the not unpleasant duty of restoring the boy to his mother. But there is another feature that gives a different complexion to the matter and conducts me to another conclusion. It is conceded that Beswick left the regiment without license or authority of any kind, in other words was a deserter, and liable to be dealt with as such. If after the fact of desertion, and before arrest, this
It follows that the writ of habeas corpus must be dismissed, and the prisoner remanded to the custody of the parties holding him in charge when the writ was issued and served.