Validity of enlistment in general.-This section does not render void a voluntary enlistment of one not possessing the required qualifications. U. S. v. Cottingham (Va. 1843), 1 Reb. 615, 40 Am. Dec. 710. Fraudulent representations, etc.-A man, who has enlisted on his representation that he was only 28 years of age, can not, on his trial for desertion, plead that he was never properly enlisted, because he was at the time of the enlistment over 35 years of age. U. S. r. Grimley (1890), 11 Sup. Ct. 54, 137 U. S. 147, 34 L. Ed. 636, reversing (C. C. 1889), 38 Fed. 84.

Where an enlistment was procured by fraudulent representations on the part of the recruiting officer, or by mistake of fact of one ignorant of the English language, the person so enlisting will be discharged en habens corpus. Schmeider . Barney (C. C. 1873), Fed. Cas. No. 12,462.

Unauthorized agreements.-On habeas corpus, it was no ground for discharge that relators were enlisted as musicians under an agreement with the recruiting officer that they should remain in Philadelphia,

but were subsequently ordered to Governor's Island, N. Y. Commonwealth v. Fox (1848), 7 Pa. Law J. 287.

Ratification.---A contract of enstient irregularly made may be ratified by the receipt of rations and clothing, and the performance of duties as a recruit for 20 days. In re Ferrens (D. C. 1869), Fed. Cas. No. 4,746.

Completion of enlistment.-To become a fully enlisted man the party must sign the prescribed application and then be accepted and sworn into the service. Coe v. U. S. (1909), 44 Ct. Cl. 419. And see Tyler v. Pomeroy (1864), 90 Mass. (8 Allen) 480, holding that merely signing a paper, in the hands of a municipal officer, containing a promise to serve as a volunteer for three years from the date of being mustered into the United States service, unless sooner discharged, was not sufficient to constitute one a soldier, and render him Hable to be seized against his will and taken into camp.

Enlistment of minors.-See 2169, post.

and in time of peace

*

changed from time to time, as indicated by the summary thereof, under 2165, ante, the decisions of the courts thereon have not always been uniform. Under the law as it was prior to act of May 15, 1872, minors above the age of 18 might lawfully be enlisted without the consent of parents or guardians, they might lawfully be mustered into service between the ages of 16 and 18 with the consent of parents or guardians, and they could not be mustered into service under the age of 16. Said act of May 15, 1872, only so far modified the previous law as to prohibit the enlistment of persons under the age of 21, who have parents or guardians entitled to their custody and control without the written consent of such parents or guardians, leaving in full force the provision making the oath of enlistment conclusive as to the age of the recruit, (1873) 14 Op. Atty. Gen. 210.

Act of Feb. 13, 1862, providing that enlistments by minors under 18 years of age should be absolutely void, was held not to repeal by implication the acts requiring consent of parents to minors' enlistments; and that minor over 18 years of age, enlisted without his parents' consent, could still be discharged. Commonwealth v. Carter (Pa. 1863), 20 Leg. Int. 21. And it has been held, under these statutes, that the enlistment of a minor in the Army was illegal, unless made with the consent of his parents or guardians. Ex parte Burke (D. C. 1863), Fed. Cas. No. 2,156a. [C. S. p. 3714.] Also that the enlistment of a minor without the consent of his parents or guardian was void as to such parent or guardian, although the minor consented to remain in the Army. Commonwealth v. Harrison (1814), 11 Mass. 63; Commonwealth. Biddle (Pa. 1846), Brightly, N. P. 447. Also that the enlistment of a minor under the minimum specified age was absolutely void, and he could not be held to service. In re Riley (D. C. 1867), Fed. Cas. No. 11,834; In re Davison (C. C. 1884), 21 Fed. 618; In re Hearn (D. C. 1887), 32 Fed. 141, 142; Wantlan v. White (1862), 19 Ind. 470. And that no consent can give power to enlist a minor under such age, nor validate such enlistment while the minor continues under such age. Wantlan v. White (1862), 19 Ind. 470. And that an enlisted minor, who has not been mustered into the service nor received any rations or clothing, can not be held in custody as a volunteer. Bamfield v. Abbot (D. C. 1847), Fed. Cas. No. 832.

It is now settled law that a minor who enlists without consent of parent or guardian, when such consent is required, becomes a soldier. His enlistment, in the absence of fraud or duress, is not void, nor

is it voidable by him. He may only be released by timely application of his parent or guardian and before he has rendered himself liable to court-martial for an offense against military law (such as fraudulent enlistment, desertion, etc.). Morrissey v. Perry (1890), 137 U. S. 157; Ex parte Dostal (D. C. 1917), 243 Fed. 664, 669; Ex parte Rush (D. C. 1917), 246 Fed. 172; Reed 1. Cushman (C. C. A. 1917), 251 Fed. 872; Hoskins v. Dickerson (C. C. A. 1917), 239 Fed. 275; Ex parte Beaver (D. C. 1921), 271 Fed. 493, where the authorities are collected. [C. S., p. 3715.]

R. S. 1118 renders the enlistment of a minor under 16 years of age absolutely void. Hoskins v. Pell (C. C. A. 1917), 239 Fed. 279; In re Lawler (D. C. 1890), 40 Fed. 223. But see In re Cosenow (C. C. 1889), 37 Fed. 668, 670.

It is voidable at the instance of the parent or guardian. Com. v. Blake, 8 Phil. 523; Turner v. Wright, 5 id. 296; Menges v. Camac, 1 Serg. and R. 87; Henderson v. Wright, id. 299; Seavey v. Seymour, 3 Cliff. 439; In re Cosenow, 37 Fed. 668; In re Hearn, 32 id. 141; In re Davison, 21 id. 618; U. S. v. Wagner, 24 id. 135; In re Dohrendorf, 40 Fed. 148; In re Spencer, id. 149; In re Lawler, id. 233; In re Wall, 8 id. 85.

A minor's contract of enlistment is voidable, not void, and is not so voidable at the instance of the minor. If, after enlistment, he commits an offense, is actually arrested, and in course of trial before the contract is duly avoided, he may be tried and punished. In re Wall (C. C. 1881), 8 Fed. 85; see also Barrett v. Hopkins, 7 id. 312.

A father sought the release of his son under 18 years of age, who had enlisted without the father's consent. The court held that the acceptance by the father of an allotment of $15 per month out of the son's pay and of a Government allowance of $10 a month was a clear ratification of In re the son's enlistment in the Army. O'Dell, U. S. District Court, W. D. South Carolina, Apr. 25, 1918; In re Smith, U. S. District Court, W. D. South Carolina, Apr. 25, 1918.

See also notes to 2785, post.

Application of section.-The section applies to an enlistment in the National Guard called into the service of the United States, as well as to an enlistment in the Regular Army. Hoskins v. Dickerson (C. C. A. 1917), 239 Fed. 275.

In the absence of any statutory authority enabling a mother to annul an enlistment in the National Guard of the District of

Columbia, because of her son's misrepre sentation as to his age, she is not entitled to secure his release when, by reason of said enlistment, he is temporarily drafted into the service of the United States. Ex parte Winfield (D. C. 1916), 236 Fed. 552.

Minor without parent or guardian.-It has been held that a minor who has no parent, gordian, or master could not be enlisted at all, but that such an enlistment was perhaps not absolutely void, but only voidable at the infant's election. Commonwealth v. Cushing (1814), 11 Mass. 67, 6 Am. Dec. 156. And see (1851) 5 Op. Atty. Gen. 313.

Paroled prisoner of war.-A prisoner of war, paroled by the enemy, although a minor illegally enlisted, is not entitled to his discharge until after his exchange. U. S. v. Wright (C. C. 1863), Fed. Cas. No. 16,777.

Who are parents or guardians.-The word "parents" includes the no.her when the father is dead and there is no guardian. Shorner's Case (D. C. 1812), Fed. Cas. No. 12,808; Ex parte Cook (N. Y. 1856), 17 How. Prac. 337; Ex parte Mason (1809), 5 N. C. (1 Murph.), 336; Commonwealth v. Callan, 6 Bin. (Pa. 1814), 255.

A court can not discharge from the service a minor whose parents are nonresident aliens, and who at the time of enlistment had no guardian, on the application of a guardian since appointed. In re Perrone (D. C. 1898), 89 Fed. 150.

Where the mother of a minor, by articles of agreement, gave to others full control, care, and custody and complete management of him when he was two years and four months of age until he should arrive at majority, such others agreeing to take and raise the child in all respects as their own, and to give it suitable support and education, and the minor having enlisted in the United States Army at the age of 18 years and 7 months without the consent of his natural mother or of such others, they were entitled to maintain habeas corpus proceedings for the minor's discharge, having during the pendency of the proceedings adopted him. Doane v. Burkman (1911), 190 Fed. 541, 111 C. C. A. 373.

A minor, whose enlistment in the Army was invalid, should be released on the application of a person claiming the minor as an apprentice. Commonwealth v. Harrison (1814), 11 Mass. 63; State v. Brearly (1819), 5 N. J. Law (2 Southard) 639. See also, Commonwealth v. Barker (Pa, 1813), 5 Bin. 423, where the managers of an almshouse had apprenticed the minor to a mechanic, the consent of the managers held not necessary.

The Secretary of War was not under obligation by law to discharge minors from the Army on the application of alleged parents or guardians not domiciled in the United States. (1854) 6 Op. Atty. Gen. 607.

What constitutes consent of parent or guardian. The consent to the enlistment is sufficient if it be given after the enlistment. State v. Brearly (1819), 5 N. J. Law (2 Southard) 555; Commonwealth e. Camac (Pa. 1814), 1 Serg. & R. 87. Although the consent to the enlistment of a minor is required to be in writing, yet where the consent was by parol on the day of enlistment, and the written consent made several days thereafter, it is suficient. Ex parte Cook (N. Y. 1856), 17 How. Prae. 337. And see In re Kenniston (Mass, 1847), 9 Law Rep. 548.

Where a mother, the sole surviving parent of a minor, on learning of her son's enlistment, shortly thereafter, did nothing to repudiate the same, or to secure his release, and testified that she would have been reconciled to it, had be remained in the Army and not deserted, bat that after his desertion she wanted to keep him out of the Army, her acts constituted an implied consent to his enlistment. Ex parte Dunakin (D. C. 1913), 202 Fed. 290.

Effect of relation of master and apprentice. Since the Government has the right to require the service of its citizens, minors as well as adults, for the public defense, it may dissolve the relation of master and apprentice existing either by force of municipal regulation, or under indentures executed under, or sanctioned by, local laws. Johnson v. Dodd (1874), 56 N. Y. 76.

Effect of oath of enlistment.-Sec. 2, act of Feb. 13, 1862 (12 Stat. 339), contained a provision that the oath of a minor enlisting in the Army should be conclusive. Under this act it has been held: That the oath was conelusive. U. S. v. Taylor (D. C. 1863), Fed. Cas. No. 16,439; In re Conley (D. C. 1866), Fed. Cas. No. 3,102; In re Cline (D. C. 1867), Fed. Cas. No. 2,896; In re Riley (D. C. 1867), Fed. Cas. No. 11,834; (1873), 14 Op. Atty. Gen. 210; Ex parte Rielly (N. Y. 1867), 2 Abb. Prac. (N. S.) 334. That it was only between the Government and the recruit, and that it could not estop the master or the parent setting up a claim to the person, and a right to the services of the minor. Wantlan v. White (1862), 19 Ind. 470; In re Beswick (N. Y. 1863), 25 How. Prac. 149. And it has also bezu held that the ordinary enlistment oath, containing no statement of the age of the re

cruit, was not conclusive that he is over the age of 18 years, nor was an unsworn statement of such recruit. In re Tarble (1870), 25 Wis. 390, 3 Am. Rep. 85. And further that the provision applied to a case where the recruit falsely represented himself to be 18 years of age, and not where the officer who enlisted him was informed by him at the time that he was under such age, or knew such to be the fact; and such an enlistment was unauthorized, and a fraud on the parent and Government. In re Higgins (1863), 16 Wis. 351. Aud see U. S. v. Wright (C. C. 1862), Fed. Cas. No. 16,778, holding that the oath was not conclusive upon the courts, but was a protection to the enlisting officer.

In executing the provisions of sec. 20, act of Feb. 24, 1864, and sec. 5, act of July 4, 1864, the Secretary of War was not concluded by the oath of enlistment on the question of age. (1873) 14 Op. Atty. Gen. 210.

As to legality of enlistment of minor without the oath of enlistment, see In re McDonald (D. C. 1866), Fed. Cas. No. 8.752.

a

Ratification of enlistment.- Where minor, having enlisted without the consent of his father, remained in the service more than a year after he became of age, receiving his pay and rations, without any dissent, and without any reasonable excuse for not making an application for a discharge, his acts amounted to a ratification of the enlistment. State v. Dimick (1841), 12 N. H. 194, 37 Am. Dec. 197.

Any defect of enlistment in the National Guard of one under 18 years of age, because without the consent of his parent, becomes of no effect and not available to the father to secure the minor's discharge where not urged, although known, till after he was 18 and drafted into the service of the United States under the national defense act of June 3, 1916. Reed v. Cushman (1918), 251 Fed. 872.

One who enlisted in the National Guard, was accepted, took the prescribed oath, and later took the Federal enlistment oath prescribed by the national defense act, and received pay and clothing over a long period from the State and Federal Governments, is a soldier, subject to milltary jurisdiction in respect of any offense committed against military law, though under 21 when enlisted, an alien who had not declared his intention, and enlisted without the consent of his parent or guardian, and had a dependent mother. Ex parte Dostal (D. C. 1917), 243 Fed. 664.

Right to discharge as affected by pending prosecution for violation of military law.

Habeas corpus will not lie to discharge a minor under 18 years of age enlisted in the military service without the consent of his parents or guardian, where the minor is under arrest and held for trial by courtmartial on a charge cognizable by a military or naval court. Dillingham v. Booker (1908), 163 Fed. 696, 90 C. C. A. 280, 18 L. R. A. (N. S.), 956, 16 Ann. Cas. 127. Nor while undergoing a sentence imposed on him by a court-martial for a violation of the Articles of War. In re Dowd (D. C. 1898), 90 Fed. 718. [C. S. p. 3716).

But where the minor has merely been confined and not notified of any charges against him, and in fact none have been preferred, there have been no such military proceedings as to deprive the civil courts of jurisdiction, on writ of habeas corpus Ex parte Avery (D. C. 1916), 235 Fed. 248.

A military tribunal has jurisdiction to try offender under military age for offenses committed before his father's election to terminate his enlistment, though he was not taken into custody until after such election. U. S. v. Brown (D. C. 1917), 242 Fed. 983; Ex parte Foley (D. C. 1917), 243 Fed. 470.

On habeas corpus an enlisted minor was remanded to custody of military authorities for trial for alleged offenses and service of any sentence imposed, but thereafter to be released from such custody. Id.

Where an enlisted minor is charged with mutiny before the contract is avoided, and is placed in the custody of a court-martial, and the jurisdiction of that court has attached, it is not competent for the State court, by a writ of habeas corpus, to withdraw the party therefrom. In re Dew (Mass. 1862), 25 Law Rep. 538.

Right to discharge as affected by pending prosecution for fraudulent enlistment.— Under 404, ante, and this section minor arrested for fraudulently enlisting in violation of sixty-second article of war after service of writ of habeas corpus sued out by his mother, will not be taken from the custody of the military authorities. U. S. v. Williford (1915), 220 Fed. 291, 136 C. C. A. 273.

A minor, who by misrepresenting his age, has fraudulently enlisted in the Army without the consent of his parents, and thereby subjected himself to punishment under military law, will not be relieved from such punishment by habeas corpus on the application of his parents, though the military prosecution is not instituted until after the writ was issued. In re Lessard (C. C. 1905), 134 Fed. 305; Ex parte Lewkowitz (C. C. 1908), 163 Fed. 646. Contra, see Ex parte Houghton (C. C. 1904), 129