Lanahan v. Birge

30 Conn. 438

Opinion

Butler, J.

The principles which must determine this case are important but well settled.

1. It is a fundamental principle of national law, essential to national life, that every citizen, whether of age to make con_ tracts generally or not, is under obligation to serve and defend the constituted authorities of the state and nation, and for that purpose to bear arms, when of sufficient age and capacity to do so, and when such service is lawfully required of him. The power to enforce that obligation, so far as the necessities of the state may require, is an incident of state sovereignty, and the subject of state constitutional and statutory regulation. The constitution of the United States has conferred upon Congress also, the power to provide for organizing and disciplining the militia, and for calling them forth to “ execute the laws ” of the union, “ suppress insurrections,” and “ repel invasions.” Exercising the power so conferred, Congress in 1792 passed a skeleton militia act; and laws for carrying that act into effect, in detail, and conforming our then militia system to its provisions, were passed by the legislature of this state in the same year. By the act of Congress and the auxiliary laws of this state, the age at which a minor should be deemed capable of bearing arms, and be enrolled in the militia, which in this state had previously been sixteen years, was fixed at eighteen. The minor in this case had reached that age, and it is conceded that he was subject to military duty and military draft.

Enlistment is but another and less objectionable method of securing the military service required by the state and due from the citizen; and the same essential principles of public policy and necessity, which impose the obligation to serve, and confer the power to enforce that obligation, require that the minor who is subject to military draft, should be at liberty to enlist, when called upon in that form to render the military service which the state requires. It may indeed be for liis interest to do so, rather than be subject to draft, as it certainly is sound policy in the government that he should. But however that may be, the obligation -to serve, and the right to require the service, exist and are paramount. What a minor can be compelled to do, he may contract to do, or do voluntarily ; and if he is lawfully subject to military duty, and is lawfully called upon to enlist, his contract of enlistment is as valid and binding as that of an adult. "

2. Although it is the policy of the law to give to a parent a right to the service and a control of the person of a minor child until he has attained the age which the law has fixed for his emancipation, yet that right and authority are liolden in subordination to those paramount rights and powers of the state Which are essential to the maintenance of civil.society and civil government. And when the power of drafting or enlisting a minor who is lawfully subject to military duty is exercised, the rights and authority of the parent, and of all standing “ in loco parentis,” so far as they are in conflict, must yield and be suspended. Such is the law of England and of this country, and must of necessity be the law of every well regulated state. King v. Rotherfield Greys, 1 Barn. & Cress., 345. United States v. Bainbridge, 1 Mason, 71. Commonwealth v. Downes, 24 Pick., 227.

These principles are decisive of this case unless there is something in it to make it an exceptional one. It is claimed that it is exceptional, and two points are made by the applicant, which it is our duty to examine.

It is said, first, that certain acts of Congress, authorizing enlistments for the regular army, expressly provide that minors shall not be enlisted or held in service, without the consent of tlieir parents, guardians or masters, if any they have,—that by the act of the General Assembly of this state passed in May, 1861, the volunteers enlisted are made subject to the “ rules and articles applicable to the troops in the service of the United States,” and that a similar provision is contained in the act of Congress of July, 1861, and that it is a rule in the army that no minor shall be enlisted or held without the consent of his parent, guardian or master.

The acts of Congress first above referred to undoubtedly-contained such a provision relative to the enlistment of minors. Appreciating the propriety of not interfering with the subordinate rights of parents, &c., without necessity, Congress inserted that provision. But they were special laws for “ the fixing of the military peace establishment of the United States.” Few men were required, and no difficulty was apprehended in obtaining them. It would have been grossly' unjust to parents and those standing <£ in loco parentis” if the exception had not been made, when no public exigency or necessity rendered it important that minors should be so enlisted. That exception was repealed during the exigency created by the war of 1812, by the act of December 10th, 1814. It was expressly re-enacted in 1850, soon after the Mexican war, and has again been repealed, since this case was decided in the court below, by the act of February 13th, 1862.

But the contract of enlistment by virtue of which this minor is holden was not made with the United States nor under or pursuant to any of those acts of Congress. On the 15th of April, 1861, the president, under a pressing exigency arising from insurrection and rebellion, by his proclamation called on the several states for a militia force to suppress them. The legislature of this state thereupon, on the 8th of May following, passed an act authorizing the governor to enlist and equip ten thousand men, and turn them over into the service of the United States, as a part of the militia of the state, irpon the requisition of the president. The active militia of the state at that time were all enlisted; and so far as we could be said to have a militia system, it was framed on the principle of having an active militia, as a distinct organization from the enrolled militia, constituted by voluntary enlistment from those enrolled. It was expressly provided in the act of May 8th, 1861, that the ten thousand men should be a part of that active organization. The governor thereupon issued his call for volunteers from those liable to militia duty, viz., between the ages of .eighteen and forty-five, and under that act and call this minor enlisted, and was subsequently turned over and mustered' into the service of the United States, as one of an organized regiment of the militia of the state of Connecticut. His contract of enlistment therefore was not with the United States, nor under any authority given or limitation fixed by the laws of the United States, but under a state law which contained no such limitation, and by force of state sovereignty. Doubtless Congress, under the power to provide for organizing the militia conferred by the constitution, may limit the enlistment of minors into special or active militia corps under state authority, by providing that none such shall be enlisted except with the consent of their parents, guardians or masters, and such limitation will be obligatory and controlling upon the states. But no such provision was contained in the act of 1792, and none such exists or has ever existed. Nor has there ever been any such on our own statute book. It has been the practice in this state immemorially, to enlist minors, without regard to such consent, into the independent companies of artillery, cavalry and light infantry, and they were so enlisted into the only active military organization we had in May, 1861. In the absence therefore of any national or state limitation applicable to the militia, and under the immemorial practice, and the law of May, 1861, the power and duty of the governor to enlist this minor, and turn him over to the service of the United States, without reference to any law of the United States regulating enlistments into the regular army, can not be successfully questioned.

But it is further claimed that howevep that may be, yet by" the act of May 8th, 1861, and the act of Congress of July 22nd} 1861, it was provided that the volunteers when enlisted and turned over into the service of the United States should be subject to the rules and regulations governing the army, and that under those rules this minor could not be lioldon in the service. This claim is without foundation. Congress in several acts passed at different times for the purpose of raising the necessary regular force in time of peace, did provide that no minors should be enlisted without the consent of their parents and guardians, and those provisions furnished a rule for recruiting officers, which was embodied in the general pub lished regulations for the army to which we have been refer red; and when minors were enlisted without such consent, they were, on proper application, and because of those enactments, discharged by the proper officer or the courts. But the rule tints furnished was a rule of enlistment, not of government—a limitation of the authority to enlist conferred by those acts—the exercise by Congress of a power derived from the clause of the constitution authorizing them to “ raise ” armies, and not the clause conferring the authority to make rules for their government, nor that other clause authorizing them to provide for organizing the militia and for governing such part of them as may be employed in the service of the United States. That rule of enlistment had no force or effect upon the states, or in reference to the organization of the militia, or their government when in the service of the United States. The authority to raise or enlist armies, and to make rules for their government, are distinct powers conferred in distinct clauses of the constitution, and so is the further power of organizing and calling forth the militia, and governing them when so called forth.

The expressions, “rules and articles,” as used in our statute of May, 1861,—“ rules and regulations governing the army,” as used in the act of Congress of July 22nd, 1861, “ rules and articles of war ” in the act of July 25th, 1861, and “ rules and articles of war” in the act of July 29th, 1861, all mean the same thing, viz., the rules and regulations constituting the “ articles of war,” specially and in a distinct and special statute enacted by Congress in 1808, pursuant to the special clause of the constitution which confers power for that purpose, for the government of the army, when raised and organized under other clauses and statutes; and the simple meaning of them all is, that the volunteers and’militia, when in the army, shall be governed by the rules and articles of war prescribed by Congress for, and essential to the government of the army. That clause in the act of May, 1861, was unnecessary and without force, for the control of the militia is exclusively with the general government after they are mustered into its service; and the provisions in the several acts of July, 1861, were unnecessary, for section 97 in the act of 1806, pre scribing tlie articles of war, contains the same provision for all cases. But these rules thus specially enacted, and under special authority, contain no rule respecting the enlistment of minors, or in regard to holding them in service, nor any rule which can by implication authorize officers or courts to go behind the enlistments of the states, and discharge a militia man on the ground that he was a minor and enlisted without parental consent.

The second point made by the applicant is, that when the enlistment of minors is provided for in any law, and no provision is inserted in relation to the consent of 'parents and others standing in loco parentis, the court should so construe the law as to make the authority to enlist stibordinate to that of parental right; and wo are referred to the case of Commonwealth v. Downes, 24 Pick., 227, as a case in point.

We approve the principles recognized in that'case, and the application of them to the facts. The case was decided right, but the decision would have been different we think if the facts had been like those presented here. In that case the minor was enlisted under a special act of Congress, in time of peace, authorizing the enlistment of boys under eighteen into the navy. The act was silent as to the consent of the parent or guardian, and the court held—1st. That in case of exigency Congress might authorize the enlistment of minors without the consent of their parents, and of the existence of such exigency Congress must be the judge; 2nd'. That no such exigency existed at the time of the passage of the act in question, and no such intention appeared expressly or by implication and 3d., that under such circumstances the law should be construed to authorize enlistments in subordination to the authority-of the parent, and only with his consent. That consent not having been given, the enlistment was holden invalid.

But the case before us presents a very different state of facts. The law of this state was induced by a controlling exigency, contemplated the enlistment of those subject to military duty, for a service for which they were liable to a compulsory draft which would certainly override parental authority, and a service for which there would be a draft, if a sufficient force was not obtained by voluntary enlistment. The act was indeed silent as to the consent' of the parent, but so have been all the acts authorizing the enlistment of the active militia of the state, or of volunteer companies, and minors have always been enlisted into them without asking or obtaining the consent of their parents.

Construing the act of May, 1861, then, according to its import, and with reference to the exigency which it recognized, the purpose which it contemplated, the character of our militia system and laws to which it had regard, and the immemorial usage under them, we think it manifest that it was the intention of the legislature to authorize the governor to receive every person subject to military duty who was disposed to enlist, and without regard to parental right or authority.

We do not advise a new trial.

In this opinion the other judges concurred; except Sanford, J., who did not sit.