Inhabitants of Fitchburg v. Inhabitants of Lunenburg

Gray, J. The defendants admit that, under the St. of 1865 c. 236, and the decision of this court in Bridgewater v. Plymouth, 97 Mass. 382, Calvin D. Sanderson, by being enlisted and mustered into the military service of the United States as a part of the quota of the town of Lunenburg during the recent civil war, ayd continuing in such service for more than a year, acquired a settlement in that town, unless'he was prevented from so doing by the third section of that statute, which is as follows: “ The provisions of this act shall not apply to any person who shall ha ze enlisted and received a bounty for such enlistment in more than one town, unless the second enlistment was made after an honorable discharge from the first term of service, nor to any person who shall have been guilty of wilful desertion, or who shall have left the service otherwise than by reason of disability or an honorable discharge.” The manifest purpose of this statute was that those soldiers, only should gain a settlement in the town as a part of whose quota they had enlisted, who had honestly entered upon and faithfully performed their service to the government of the nation. Tbs question in this case is, by what evidence the performance jr breach of military duty is to be judicially ascertained upen a question of settlement. By the articles of war, established by act of congress, no soldier duly unlisted and sworn can be dismissed from the service without a lischarge in writing, signed by his commanding officer; at each muster, the reasons and time of absence of any soldier are required to be entered on the muster roll; all enlisted soldiers convicted of desertion or absence without leave are to be punished by the sentence of a court martial; and every soldier is prohibited from enlisting in any other regiment, troop or company, without a regular discharge from that in which he last served, on the penalty of being reputed a deserter and suffering accordingly. U. S. St. 1806, c. 20; 2 U. S. Sts. at Large, 361, 362. Considering the careful provisions made by the articles of wai for the keeping of muster rolls showing the reasons and times of absence, for the trial and punishment of deserters, and for the [361] granting of discharges; and the inconvenience, as well from the nature of the facts to be proved, as from the difficulty of obtaining the necessary evidence, of trying the issues of desertion, absence without leave, or cause of discharge, in the civil tribunals; we are of opinion that the proceedings of the military authorities, at least when they involve a direct finding upon the fact in question, as in the case of an enlistment into the service, an acquittal or conviction for desertion, or an honorable discharge in writing, are conclusive evidence upon a question of settlement under the St. of 1865, c. 230. It is more- just to the soldier himself, and more consistent with public policy and the prevention of unbecoming litigation, that the causes and motives of his leaving the service should be determined, once for all, by the military officers of the government to which his service was due, while the facts were recent and he had an opportunity to be heard, than that the question of his military loyalty or disloyalty should be left open to be collaterally contested between two municipalities in actions to which he is not a party, and even after his death, as often as any of his family may be so unfortunate as to fall into distress and need public assistance. It is no new thing in the law to depend upon military records as conclusive evidence of similar facts. At common law, when a lord distrained for escuage his tenant holding by knight’s fee, and the tenant pleaded that he was with the king in Scotland forty days, that issue was “ tried by the certificate of the marshal of the king’s host in writing under his seal;” and his certificate, when produced in a court of common law, was conclusive. Co. Lit. 74 a. In the case at bar, the plaintiffs introduced in evidence a certificate in due form, from the proper military officer, of Sander-son’s honorable discharge from the military service of the United States upon a surgeon’s certificate of disability. This was conclusive evidence of the cause.and manner of his leaving the service. The evidence, offered by the defendants, of the time and intent of his previous absence from duty, and of his arrest for desertion, unaccompanied by any evidence that he had been [362] convicted or sentenced therefor; as well as the evidence offered to contradict the certificate of the surgeon, and to prove that that certificate and the discharge were obtained by undue influence— especially as there was no offer to show that such influence was exercised by the soldier himself; was incompetent, and rightly rejected. In Ashland v. Marlborough, 99 Mass. 47, no question of the maimer of leaving the service under the third section of the statute, or of the effect of military proceedings, was raised or involved ; but only the nature of the oral testimony admissible upon an issue arising under the first section, to show whether the disease disabling a soldier was contracted before or after his enlistment. Exceptions overruled.