
    Commonwealth versus Thomas H. Cushing, Esq.
    The statutes of the United States, which prohibit the enlistment of a minor, with out the consent of his parent, &c., “ if any he have,” prohibit the enlistment of minors who have no parent, guardian, or master; and such enlistment, if not void, is voidable at the request of the minor so enlisted.
    This was a writ of habeas corpus, directed to General Cushing, to bring into Court the body of William Bull, with the day and cause of the taking and detaining him, to do and receive, &c.; to which the respondent returns that the said W. B., being a soldier in the 6th regiment of' infantry, at Burlington, in the state of Vermont, deserted from the service of the United States, as appeared by his own confession before a general court-martial, holden on the 11th of March, instant, (an extract of the record of which court is annexed, and referred to in the return,) and that the said W. B. is in his custody under the proceedings of the said court, is detained by him for no other cause, and is here present in court, in obedience to the said writ.
    
      Thatcher, for the commonwealth,
    suggested that Bull was an infant, under the age of twenty one years, and had no parent or guardian living, of which he produced evidence. He also read the affidavit of Bull himself, stating that he * was [ * 68 ] born in Boston, being now of the age of eighteen years and seven months; that, having left the service of Dr. John Williams, in Cambridge, he went to the city of New York, where, on the 3d day of May, 1813, he enlisted into the service of the United States as a soldier in the 6th regiment of infantry for and during the term of the existing war; that he was induced to enlist into the service by reason of his poverty; that, at the time of his enlistment, he had neither parent, master, nor guardian ; that he stated to the enlisting officer his true age; that, on the 24th of February last, being then stationed at Burlington, in the state of Vermont, he left the service, being very unhappy and discontented with the same, and came to his friends in Boston, intending, on his arrival there, to seek for his discharge; that, since he had been there, he had had no opportunity to apply to the judge of probate for the appointment of a guardian, being detained under arrest at the time of the sitting of the Probate Court, and that it was his earnest desire to be released from the service of the United States.
    
    Upon this evidence, Thatcheromoved that Bull be discharged, on the ground that his enlistment was void, being a contract which, by the law of the land, he was not competent to enter into.
    
      Smith, for the respondent.
    To the general doctrine that, an infant cannot bind himself by his own contract, there are sundry exceptions. Thus, where he does an act which, by the law, he is otherwise compellable by law to do, he shall be bound; as, if he assign dower to one entitled, it is valid.  By the constitution of the United States, Congress have power to call forth the militia; and to provide for organizing, arming, and disciplining it, and for governing it when in actual service. They have authority to call into actual service, for the defence of the country, the whole body of the militia, or, indeed, the whole male population capable of bearing arms. A fortiori they may take a part. Minors above the age of eighteen are enrolled in the militia, and, as such, are liable to be called into service, and compellable to serve. Until the act of [ * 69 ] January, 1812, hereafter mentioned, all able-bodied * men, from eighteen to forty-five, were capable, by the laws of the United States, of enlisting, and there was no provision for the consent of parents, &c. If, then, a minor is compellable to serve as a soldier, and voluntarily engages to do it, his contract binds him.
    By the 12th section of the act of Congress, passed January 11, 1812,  and the 5th section of the act passed January 20, 1813,  Congress have partially executed their constitutional authority, in empowering their officers to enlist into the army all effective able bodied men between the ages of eighteen and forty-five years. This power is limited by a proviso, “ that no person under the age of twenty-one years shall be enlisted by any officer, or held in the service of the United States, without the consent, in writing, of his parent, guardian, or master, first had and obtained, if any he have; ” intending, without any doubt, if he have no, parent, &c., then he may enlist without such consent, which in such case is unattainable.
    An infant is also bound by his agreements, when they are for his benefit.  And it is no overstrained argument that it was for the benefit of this lad, at a distance from any friends, and for aught that appears, having none that were able, or, if able, that were inclined, to provide for him, in circumstances of poverty and distress to malte a contract by which he was insured food, clothing, wages, besides the ample bounty in money and land provided by the government.
    
      The respondent also addressed the Court. Infants are capable by law of contracting marriage, one of the most solemn that occurs in human affairs, and which binds the parties during life. This is a strong exception, and the case before the Court may with great reason, and from high motives of public policy, be considered as another.
    The general power given in the statutes, which have been referred to, is to enlist minors. The proviso is a saving of the rights of parents, guardians, and masters. That this was the only object intended, appears from the debates and deliberations in the legislature when those bills were pending. Then a minor, having no parent, &c., is not within the proviso: [ *70 J *he may bind himself by enlistment, as well as one of full age. His country becomes his guardian.
    The constitution of the United States, and the laws enacted pur sua nt to its authority, form the supreme law of the land, and are, in their effect, a repeal of all the laws in the respective states militating with them. If the law authorizing the enlisting of minors be consistent with the constitution, and Bull’s case is not within the proviso, it is respectfully insisted that this Court cannot discharge him.
    
      Thatcher
    
    contended that a minor having no power to bind himself, except in certain specified cases, of which this of enlistment into an army was not one, his enlistment was absolutely and merely void. William Bull, having no guardian, had applied to this Court, to relieve him against a supposed contract, into which he had unadvisedly, perhaps by undue solicitations, been induced to enter. This being a case of personal liberty, and that of an infant, no argument was necessary to induce the Court to apply its authority to free him from the illegal restraint and imprisonment under which it was apparent that he was holden.
    
      
      
        Co. Lit. 35, a.
      
    
    
      
      
        U. S. Laws, vol. xi. p. 20.
    
    
      
      
        Ibid. p. 349.
    
    
      
      
        Drury vs. Drury, cited 2 D. & E. 161.
    
   By the Court.

From a general view of the acts of Congress for raising and organizing the army, we think the enlistment of all persons of every age is intended to be authorized. However this constitution may militate with the principles of the common law respecting infancy, we think it a necessary one. The proviso cited in the argument counteracts this construction, so far at least as it applies to infants having parents, guardians, or masters. Infants are, by the common law, incapable of making any contract binding on themselves, except in a very few instances. This incapacity is a security to them, intended for their benefit and protection. But the statutes of the United States, on the subject of enlistments, deprives them of this security and protection, unless the proviso may be considered as preventing its operation upon them. And we think that such must be its intention. The legislature ought not lightly to be presumed, in any case, thus to violate a fundamental principle of the common law.

* The argument suggested by the counsel for the re- [ * 71 ] spondent, that a minor has the power of binding himself by any act voluntarily done, to the performance of which the law would otherwise compel him, is correct; but we think it does not apply in the case before us. The obligation to do duty in the militia at home, under officers generally deriving their commissions from popular elections, or at any rate appointed by the domestic authority of the state government, is a very distinct thing from an enlistment into an army, subject to very different discipline, and to hardships and dangers unknown to militia service. Enlistment is a contract; service in the militia is merely obedience to a requisi tian of the laws, to which all are subject without discrimination.

It was argued that, although, by the proviso referred to, infants having parents, guardians, or masters, may not be enlisted without the consent of such parents, &c., yet, where a minor has no parent, &c., it is lawful to enlist him, and his enlistment shall bind him.

But we cannot yield to this argument. The consequence would be, that a child unhappily losing his parents might, before sufficient time had passed to procure the appointment of a guardian, be enticed to enlist, and held. Such a construction is too harsh to be adopted. The true construction must be, that persons under the age of twenty-one years are not to be enlisted or held in service, unless with the consent of their parents, guardians, or masters, first had and obtained; and if they have no parents, guardians, or masters, they are not to be enlisted or held in service at all. If a minor without parents, &c., is a suitable person to enter the army in any particular case, and so disposed, it will be easy, under the provisions of our laws, to procure the appointment of a guardian for him. Perhaps the contract of enlistment by a minor is not ipso facto void; but we hold it voidable at his instance and request. We accordingly order and adjudge that William Bull, the minor brought before us on this writ of habeas corpus, be discharged from the restraint under which he is holden. 
      
      
         Vide United States vs. Anderson, Cook, 143. — Sed vide United States vs. Bainbridge, 1 Mason, 71. — Commonwealth vs. Murray, 4 Brim. 487. — Ex parte Robert, 2 Hall, L. J. 192. — Ex parte Ferguson, 9 Johns. 239.— Martin vs. Hunter, 1 Wheaton, 304.
     