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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, parte Winfield (D. C. 1916), 236 Fed. 552.
Minor without parent or guardian.-It has been held that a minor who has no parent, giardian, or master could not be enlisted at all, but that such an enlistment was perhaps not absolutely Foid, but only voidable at the infant's eleetion. Commonwealth r. 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 enlistel, is not entitled to his discharge until after his exchange. U. S. v. Wright (C. C. 1803), Fed, e'as. No. 16,777.
Who are parents or guardians.-The word parents " includes the ino her when the father is dead and there is no guardian. Shorner's Case (P. C. 1812), Fed. Cas. No. 12,808; Ex parte Cook (N. Y, 18.56), 17 Hlow. 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 nopresident 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, gare to others full control, care, and custody and complete management of him when he was two years and fonr months of age until he should arrive at majority, such others a greeing 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
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
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. llarrison (1814), 11 Jass. 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 almsbouse had apprenticed the minor to a mechanie, 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) G 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) 305; Commonwealth 1. 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 suflicient. Ex parte Cook (N. Y. 1856), 17 How. Prac. 337. And 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 he remained in the Army and not deserted, but 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 Stut. 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 covelusive.
U. s. V. Taylor (D. €. 1863), Fed. Cas. No. 16,439; In re Conley (D. €. 1866), Fed. Cas. Ne, 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. S. 1867), 2 Abh. Prac. (N. S.) 334. 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. Wantlap White (1862), 19 Ind. 470; In re Beswick (N. I. 1863), 25 How. Prac. 149. And it has also been 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), 27 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 te liggins (1863), 16 Wis. 351. And 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 coneluded by the oath of enlistment on the question of age. (1873) 14 Op. Atty. Gen, 210.
is to legality of enlistment of minor without the oath of enlistment, see In re MeDonald (D. C. 1866), Fed. Cas. No. 8.752
Ratification of enlistment. - Where a mimor, baving 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 P. 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 od 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 preseribed oath, and later took the Federal enlistment oath preseribed by the national defense act, and received pay and clothing over a long period from the State and Federal Governments, is & soldier, subject to military jurisdiction in respect of any offense committed against military law, though under 21 when enlisted, an alien who had not declared bis intention, and enlisted without the consent of his parent or guardian, and had a dependent mother. Ex parte Dostal (D. C. 1917), 243 bed. 664.
Right to discharge as affected by pending prosecution for violation of military law.
Ilabeas 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, Boolir (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 impos on him by a court-martial for a violation of the Artieles 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 bave byen preferred, there have been no such military proceedings as to deprive the civil courts of jurisdletion, 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 electiou to terininate his enlistment, though he not taken into eustody until after such election, U. S. v. Brown (D. C. 1917), 2+2 Fel. 983; Ex parte Foley (D. C. 1917), 243 Fed. 470.
On habeas corpus an enlisted minor was remadded to custody of military authori. ties 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 at. tached, it is not competent for the State court, by a writ of babeas corpus, to witbdraw the party therefrom. in Dew (Mass. 1862), 25 Law Rep. 538.
Right to discharge as affected by pend. ing 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
the Army without the consent of his parents, and thereby subjected himself to punishment under military law, will not be relieved from such pubishment by habeas corputs 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 Lev. kowitz (C, C. 1908), 163 Fed, 646. Contra, see Ex parte lIoughton (C. C. 1904), 129
Fed. 239; In re Carver (C. C. 1900), 103 In re Dabbs (N. Y. 1861), 12 Abb. Prac.
113; In re Shirk (Pa. 1863), 3 Grant, Cas, Rights as affected by desertion. -A minor 160, 5 Phila, 333; U. S. v. Anderson who enlists in the Army without the con- (1812), 3 Tenn. (Cooke) -43. In the folsent of his parents or guardians, and sub- lowing cases it has been held that the sequently deserts, is amenable to a court- State courts had concurrent jurisdiction martial as a deserter, and the findings of with the Federal courts : in re Dobbs such court-martial can not be reviewed by (N. Y. 1861), 21 How. Prac. 68; In re the civil courts. Nor is he entitled to dis- Dabbs (N. Y. 1801), 12 Abb. Prac. 113; charge from arrest for such offense on Commonwealth v. Fox (1847), 7 Pa. (7 habeas corpus.
In re Wall (C. C. 1881), Barr) 336. 8 Fed. 85. (C. S. p. 3717.) At least until
Time of discharga.-An enlistment into he has been discharged from such custody the Army of the United States is a con. or has served the sentence imposed on him
tract and if made by a minor, without the by the military tribunal, In re Cosenow
consent, in writing, of his parent, master, (C. C. 1889), 37 Fed. 668, 669. (C. S.
or guardian, he may avoid it on his arrival p. 3717.)
at full age. State v. Dimick (1841), 12 The fact that a minor deserted and con
N. H. 194, 37 Am. Dec. 197. As to whether cealed himself for over five years and until
a person enlisting as a minor is not entitled after he had arrived at majority does not
to his discharge at the age of 21, regardless reliere him from his obligation as a sol
of the term of his enlistment, see Ex parte dier, or his liability to military control.
Brown (C. C. 18:39), Fed. Cas. No. 1,972. Morrissey v. Perry (1890), 11 Sup. Ct. 57,
Hearing on application for discharge. — 137 U. S. 157, 34 L. Ed. 644,
Where the record in a habeas corpus proAuthority and jurisdiction to discharge.
ceeding to procure the discharge from the By sec. 5, act of Sept. 28, 1850 (9 Stat,
Army of an enlisted soldier does not show, 507), sec. 20, act of Feb. 24, 1864 (13 Stat.
except by ex parte affidavit attached to the 10), and sec, 5, act of July 4, 1864 (13
petition, that he was a mino: when he Stat. 380), the Secretary of War was given
enlisted or that his enlistment was without power to discharge minors illegally en
his parents' consent, and where the return listed. Under these acts it has been held
of the military commandant, alleging due that the whole power of discharging minors
enlistment for an unexpired term, deserfrom the Army was given to the Secretary
tion, surrender, commitment to the comof War, and cognizance of such matters
mandant, and confinement under pending was taken from the courts. In re Riley
charges for the desertion, was not tra. (D. C. 1867), Fed. Cas. No. 11,834. (C. S.
versed, the writ was properly denied. p. 3717.)
Moore v. U. S. (1908), 159 Fed. 701, 86 In re McDonald (D. C. 1866), Fed. Cas.
C. C. A. 569. No. 8,752, it was held that the Federal courts had jurisdiction. In the following
Where relator, held by United States cases it has been held that State courts
Army officers, admitted that he had enlisted have no jurisdiction on habeas corpus to
in the service, but alleged that he was only inquire into the detention by the United
16 years of age and was drunk when he States as a soldier of a minor who had
enlisted, the court will not inquire into the
habeas enlisted in
regularity of the enlistment on the Army without the con
corpus. sent of his parents or guardian: in re
In re Robert (Pa. 1809), 2 Hall
Law J. 192. Tarble (1871), 80 U. S. (13 Wall.) 397, 20 L. Ed. 597, reversing in re Tarble (1870), Where the descriptive roll made out at 25 Wis. 390, 3 Am. Rep. 85; In re Sprangler enlistment states the recruit to have been (1863), 11 Mich. 298; State v. Dimick over 21, and he has since received pay, sub(1841), 12 N. H. 194, 37 Am. Dec. 197. sistence, etc., as a properly enlisted soldier, And see In re Ferguson (N. Y. : 812), 9 without objection, the presumption is in Johas, 239.
favor of the regularity of the proceedings In the following cases it has been held of the enlisting oflicer, and that such rethat State courts had such jurisdiction :
cruit was of lawful age, until he clearly Pownall v. Cushing (Mass. 1°14), 5 Dane,
establishes the contrary.
Green v. Ewell
Court, discharging a person from an enlistKinneston (Mass. 1847), 9 Law Rep. 548; ment in the Army of the United States on In re McConologue (1871), 107 Mass. 154; the ground that he was a minor, is cod
clusive that he was a minor, and not subject to be held either under his enlistment under charge of desertion. McConologue's Case (1871), 107 Mass. 154.
Second application for discharge.-- Where a judge of the court of common pleas, on application of the father of a minor who had enlisted in the Army without wis consent, had refused to discharge suc minor, As he elected to remain in the Army, it was in the discretion of the Supreme Court to entertain a second application for such
purpose. Commonwealth v. Biddle (Pa. 1846), Brightly, N. P. 447.
Return of bounty, etc.— On habeas corpus to secure the discharge of a minor enlisted in the Army of the United States without his parents' consent, the Supreme Court has no authority, on the discharge of the minor, to compel a return of the bounty or clothing received from the United States. Commonwealth v. Biddle (1846), 4 Clark, 35, 6 Pa. Law J. 287; Brightly, N. P. 447.
2170. Fraudulent enlistment. That fraudulent enlistment, and the receipt of any pay or allowance thereunder, is hereby declared a military offense and Tuade punishable by court-martial, under the sixty-second article of war. Sec. 3, act of July 27, 1892 (27 Stat. 278).
The offense of fraudulent enlistment is denounced by A. W. 54, ch, 52, post. 2171. Complete period of enlistment.-
that an enlistment shall not be regarded as complete until the soldier shall have made good any time lost during an enlistment period by unauthorized absences exceeding one day, but any soldier who receives an honorable discharge for the convenience of the Government after having served more than half of his enlistment shall be considered as having served an enlistment period within the meaning of this Act; that the present enlistment period of men now in service shall be determined by the number of years continuous service they have had at the date of approval of this Act, under existing laws, counting three years to an enlistment, and the former service entitling an enlisted man to reenlisted pay under existing laws shall be counted as one enlistment period : * Act of May 11, 1908 (35 Stat. 109).
Provided further, That an enlistment shall not be regarded as complete until the soldier shall have made good any time in excess of one day lost by unauthorized absences, or on account of disease resulting from his own intemperate use of drugs or alcoholic liquors or other misconduct, or while in confinement awaiting trial or disposition of his case if the trial results in conviction, or while in confinement under sentence: * Act of Apr. 27, 1914 (38 Stat. 354), making appropriations for the support of the Army.
See also A. W. 107, ch. 52, post.
Notes of Decisions.
Term of enlistment.-It seems that no of the term his engagement expires, and discretion has been conferred to contract with the expiration of his engagement for service in the Army, either condition- the obligation to serve thereby imposed ally or for a shorter term than that speci- is
at an end. This results, notwithfied by law. (1846) 4 Op. Atty. Gen. 537. standing there has been an infraction of
By his engagement to enlist the soldier the contract by desertion or otherwise, unis bound for a specific term of service, the less the soldier, before the term is up, conlast day of which is as much fixed by the sents to an extension. (1876) 15 Op. Atty. contract as the first. With the last day Gen. 152.
2172. Enlistment for one or three years.--Hereafter original enlistments in the Regular Army shall be for a period of one or three years at the option of the soldier, and reenlistments shall be for a period of three years. Sec. 27, act of June 3, 1916 (39 Stat, 185), as amended by sec. 27, act of June 4, 1920 (41 Stat. 1975). 146345°--21-VOL 2-13
The period of enlistment was fixed at five years by R. S. 1119 and continued at the same period by sec. 2, act of June 16, 1890 (26 Stat. 158); by sec. 2, act of Aug. 1, 1894 (28 Stat. 216), it was reduced to three years; by sec. 2, act of Aug. 24, 1912 (37 Stat. 590), it was provided that from Nov. 1, 1912, enlistments normally should be for a period of seven years, the first four of which were to be in active service and the last three on furlough in the Regular Army Reserve; by sec. 27, act of June 3, 1916, it was provided that from Nov. 1, 1916, while the enlistment period should continue to be seven years, the normal period of active service should be three years and the normal period in the reserve increased to four years. This last act was superseded by the above section. By sec. 31, act of June 3, 1916 (39 Stat. 187), it was provided that all enlistments in the Regular Army, including those in the Regular Army Reserve, which were in force on the date of the outbreak of war should continue in force for one year, unless sooner terminated by order of the Secretary of War, but sec. 31, act of June 4, 1920 (41 Stat. 775), struck out this section, which had been suspended during the World War by sec. 14 of the selective draft act, May 18, 1917 (40 Stat. 83). By sec, 7 of the latter act (40 Stat. 81) all voluntary enlistments were for the period of the emergency of the World War. But after the armistice of Nov. 11, 1918, the act of Feb. 28, 1919 (40 Stat. 1211), was passed, providing That so much of sections seven and fourteen of the act entitled 'An Act to authorize the President to increase tempo rarily the Military Establishment of the United States,' approved May eighteenth, nineteen bundred and seventeen, as impose restrictions upon eplistments in the Regular Army, are hereby repealed in so far as they apply to enlistments and reenlistments in the Regular Army after the date of approval of this Act: Provided, That from and after the approval of this Act, one-third of the enlistments in the Regular Army of the United States shall be for a period of one year, and the remaining two-tbirds thereof shall be for the period of three years. Any person enlisting under the provisions of this Act shall not be required to serve with the reserves. The pay of the men enlisted hereunder shall be the same as that provided by the Act entitled * An Act to authorize the President to increase temporarily the Military Establishment of the United States,' approved May 18, 1917: Provided further, That after the expiration of one year those enllsting for the period of three years may be discharged in the discretion of the Secretary of War under such rules and regulations as may be prescribed by him after one year of service."
2174. Reenlistment within three months after discharge.-- * vided, That hereafter any soldier honorably discharged at the termination of his first or any succeeding enlistment period who reenlists after the expiration of three months shall be regarded as in his second enlistment; * Act of Bay 11, 1908 (35 Stat. 109).
But see 1693, ante.
This section, while not specifically repealed, has become of little practical importance by reason' of the fact that increase of base pay no longer depends on the period of eulistment, but, as in the case of officers, on the length of time served. See ante, 1694. 2175. Reenlistment of noncommissioned officers.-
Provided further, That any noncommissioned officer discharged with an excellent character shall be permitted, at the expiration of three years in the active service, to reenlist in the organization from which discharged with the rank and grade held by him at the time of his discharge if he reenlists within twenty days after the date of such discharge:
Sec. 27, act of June 3, 1916 (39 Stat. 186). 2176. Reenlistment of men discharged from the Army to accept commissions.That any enlisted man of the Army of the United States who has heretofore been, or shall hereafter be, discharged to accept a commission in any component part of the Army of the United States, and who shall tender himself for enlistment within three months after the termination of his commissioned service, shall, subject to such examination for enlistment as is provided by law or regulation, be accepted and be restored to the grade held by him before being discharged to accept such commission; and in computing service for retirement and continuous-service pay he shall be credited with all time served with the