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Able-bodied citizens, 2165.
Porto Ricans, 2167.
Complete period, 2171.
One or three years, 2172.
Previous service not honorable, 2177.
Exclusive of convicts, 2178.
2181. Industrial furloughs, 2182. Transfer to naval service, 2183. Corporal bugler, and bugler, first class,
2184, Cooks, 2185. Details :
In writing for working parties, 2186.
First sergeants, 2190.
recruit depots, 2191.
World War, 2194,
Servants of officers, 2196,
By purchase, 2199.
During the World War, 2201. Temporary forces for the World War,
Under true name, 2204,
Credit for foreign service, 2207.
Return to active duty, 2208. Desertion : Enticing, persuading, or aiding to desert,
2209. Arrest of deserters, 2210.
Reimbursement for expense, 2211, Pension forfeited, 2212.
Citizenship forfeited, 2213. Education : Common branches taught at post schools,
At post schools, 2215.
Means provided, 2219.
2165. Qualifications for enlistment.-Recruits enlisting in the Army must be effective and able-bodied men, and between the ages of sixteen and thirty-five years, at the time of their enlistment. This limitation as to age shall not apply to soldiers reenlisting. R. S. 1116.
Provided, That the limits of age for original enlistments in the Army shall be eighteen and thirty-five years. Sec. 4, act of Mar. 2, 1899 (30
Sec. 11, act of Mar, 16, 1802 (2 Stat. 134), fixed the age of recruits at between the ages of 18 and 35 years, and provided that no person under the age of 21 years should be enlisted or held in the service without the consent of his parent, guardian, or master, The provision in sec. 11, act of Mar. 16, 1802, was repeated in sec. 11, act of Jan. 11, 1812 (2 Stat, 672), except that the maximum age was fixed at 45 years. It was again
repeated in sec. 5, act of Jan. 20, 1813 (2 Stat. 792), the maximum age being fixed at 45 years. By sec. 3, act of Dec. 10, 1814 (3 Stat. 147), the provision requiring the consent of parents, etc., was repealed. By sec. 7, act of Mar. 3, 1815 (3 Stat, 225), it was provided that the Army should be recruited in accordance with the provisions of act of Mar. 16, 1802, thereby repealing the provision in sec. 3, act of Dec. 10, 1914, which did away with the consent of parents. See In re McDonald (D. C. 1866), Fed. Cas. No. 8,752. By sec. 5, act of Sept. 28, 1850 (9 Stat. 507), it was provided that the Secretary of War should discharge soldiers who at the time of their enlistment were under 21 years of age, upon evidence that such enlistments were made without the consent of parents or guardians. Sec. 2, act of Feb. 13, 1862 (12 Stat. 339), repealed the provision of sec. 5, act of Sept. 28, 1850, relating to the discharge of minors enlisted without consent of parents, etc., provided that no persons under the age of 18 Fears should be enlisted, and made the oath of enlistment conclusive as to age. Sec. 20, act of Feb. 24, 1864 (13 Stat. 10), provided that the Secretary of War might order the diseharge of all persons in the military service under the age of 18 years at the time of application for their diseharge, upon proof of nonconsent of their parents or guardians. Sec. 5, act of July 4, 1864 (13 Stat. 380), made the provision of sec. 20, aet of Feb. 24, 1864, relating to the discharge of minors, obligatory upon the Secretary of War, provided for the discharge of all persons subsequently enlisted under the age of 16 years without the consent of parents or guardians, and provided for the punishment of reeruiting officers enlisting persons under the age of 16 years without sneh corsent. Sees. 17, 18, act of Mar. 3, 1865 (13 Stat. 489), provided for the punishment of recruiting agents, etc., knowingly procuring the enlistment of minors between the ages of 16 and 18 years without the consent of their parents or guardians, or of minors under the age of 16 (at all), and provided for the punishment of officers receiving the enlistment of such minors. Sec. 1, act of May 15, 1872, provided that no person under the age of 21 years shall be enlisted or mustered into the military service of the United States without the written consent of their parents or guardians, provided that such minor has such parents or guardians entitled to his custody and control (which was the law prior to the enactment of this section).
I'rovisions that in time of peace no recruit should be enlisted for the first time who was over 30 years of age, and that no private should be reenlisted wbo had served 10 years or more or who was over 35 years of age, except such as shoulā have already serve as enlisted men for 20 years and upward, were contained in the Army appro priation act for the fiscal year 1894, act of Feb. 27, 1893 (27 Stat. 486). The provision relating to reenlistment was repealed by sec. 1, act of Aug. 1, 1894 (28 Stat. 215). and the prorision relating to first enlistment was superseded and other requirements for enlistment and reenlistment were prescribed by sec. 2 of said act, 2177, 2166, post.
R. S. 1120 provided for the payment of a premium of $2 for each accepted recruit brought to a recruiting rendezvous. That section was repealed by act of May 12, 1917 (40. Stat. 53).
The President was authorized, in his discretion, to utilize the services of postmasters of the second, third, and fourth classes in procuring the enlistment of recruits for the Army, the postmaster procuring his enlistment to receive the sum of $5 for each recruit accepted, sec. 27, act of June 3, 1916 (39 Stat. 186), which payment was discontinued by sec. 11, act of July 2, 1918 (40 Stat. 754).
Notes of Decisions,
See notes to 2109. post. Nature of enlistment.--Enlistments in the Army, made under the inducements held out by the laws of the United States, are contracts; and, although the Government be a party, the contracts ought to be construed according to those well-established principles whieh regulate contracts generally. (1853) Op. Atty. Gen. 187. So, also, it has been held that enlistment in a yolunteer regiment organized under act Conn. May 8, 1861, was a contract with the State, and not with the United States,
not affected by any authority given or limitation fixed by the laws of the
United States. Lanahan v. Birge (1862),
The engagements of the Crown with
Qualifications for enlistment in general.Any person liable to be drafted may solo untarily enlist. Lanahan v. Birge (1862), 30 Conn. 438. An alien may be lawfully enlisted. (1854) 6. Op. Atty. Gen. 474. But see (1841) 3 Op. Atty. Gen. 670.
Persons of African descent may be enlisted as soldiers. (1864) 11 Op. Atts. Gen, 53.
Validity of enlistment in general. This gection does not render void a voluntary enlistment of one not possessing the required qualifications, U. S. v. Cottingham (Fa. 1843), 1 Rob. 615, 40 Am. Dee. 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 enlistinent over 35 years of age. U, S. . Grimley (1890), 11 Sup. Ct. 54, 157 U. S. 147, 34 L. Ed. 636, reversing (C. C. 1889), 38 Fed. 84.
Where an enlistnient wag procured by fraudulent represeotutions on the part of the recruiting officer, or by mistake of fact of one igporant of the English language, the person so enlisting will be discharged on habeas corpus.
Schmeider 4. Barney (C. C. 1875). Fed. Cas. No. 12,462.
Unauthorized agreements.-On ha beas corpus, it was mo ground for discharge that relators were enlisted as musiciany under an agreement with the recruitiog 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 enlistluent 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), ted. 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. (1900), 44 Ct. Cl. 419. And see Tyler 1. Pomeroy (1864), 90 Mass. (8 Allen) 480, holding that merely signing a paper, in the hands of a. inunicipal 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 suffeient to coostitute one a soldier, and render him liable to be seized against his will and taken into camp.
Enlistment of minors. -See 2160, post.
2166. Citizenship and literacy of recruits.
and in time of peace no person (except an Indian) who is not a citizen of the United States, or who has not made legal declaration of his intention to become a citizen of the United States, or who can not speak, read, and write the English language, or who is over thirty years of age, shall be enlisted for the first enlistment in the Army:
Sec, 2, act of Aug. 1, 1894 (28 Stat. 216). That so much of the Act of Congress entitled “An Act to regulate enlistments in the Army of the United States," approved August 1, 1894, as provides that, "in time of peace no person (except an Indian) who can not speak, read, and write the English language" be, and the same is hereby repealed. Act of June 14, 1920 (41 Stat. 1077), partially repealing sec. 2, act of Aug. 1, 1894 (28 Stat. 216).
The word “ thirty," in the provision of this section relating to age at the time of first enlistment, was superseded by the provision fixing the limits of age for original eulistments at 18 and 35 years, 2165, ante.
Notes of Decisions.
Aliens. As to enlistment of aliens under laws prior to the enactment of this section (or in the absence of any law), see (1841) 3 Op. Atty. Gen. 671; (1854). 6 Op.
Atty. Gen. 474 ; In re Ross (1842), 1 N. Y. Leg. Obs., 341; U. S. v. Wyngoll (N. Y. 1843), 5 Uill, 16 ; Same v. Cottingham (Va. 1843), 1 Rob. 615, 40 Am. Dec. 710.
2167. Enlistment of Porto Ricans in the Regular Army.
Provided, That citizens of Porto Rico shall be eligible for enlistment in the Regular Army
Act of March 2, 1903 (32 Stat. 934), making appropriations for the support of the Army.
2168. Persons not to be enlisted.-No minor under the age of sixteen years, no insane or intoxicated person, no deserter from the military service of the United States, and no person who has been convicted of any criminal offense, shall be enlisted or mustered into the military service. R. S. 1118.
Section eleven hundred and eighteen is amended by striking out the words “ any criminal offence" in the third line, and inserting the words "a felony." Act of Feb. 27, 1877 (19 Stat. 212), amending R. S. 1118.
The word “sixteen," in this section was superseded by the provision fixing the limits of age for original enlistments at 18 and 35 years, 2165, ante.
For the penalty on an officer knowingly making a false enlistment, see art, 55, Articles of War, ch. 52, post.
For persons not to be reenlisted, see 2177, post.
Notes of Decisions.
Minors. -See 2169, post, and notes thereunder.
Insane or intoxicated persona.---The enlistment of one who is insane or intoxi. cated at the time of his enlistment is void. In re Cosenow (C. C. 1889), 37 Fed. 668, 669.
Deserters.--A deserter who enlists and afterwards again deserts can not, on being brought to trial for the second offense, defend on the ground that his enlistment was void, and that he therefore was not amenable to trial. In re McVey (D. C. 1885), 23 Fed. 878, 879.
A convicted deserter, undergoing sentence, must become the recipient of executive clemency and must make application
for reenlistment before the question of the effect of the President's pardon upon his right to reenlist can arise. (1897) 21 Op. Atty. Gen. 568.
Under this section a person convicted of desertion from the military service and aiterwards pardoned by the President would be restored by reason of the pardon to all the rights and privileges of a citizen which he had anterior to such conviction. (1898) 22 Op. Atty. Gen. 36. But a recruiting officer has the right to reject a candidate for enlistment whose service during his previous term was not honest and faithful, notwithstanding the pardon of the offense. Id.
Aliens. -See notes to 2166, ante.
2169. Enlistment of minors.
Provided further, That no person under the age of eighteen years shall be enlisted or mustered into the military serv. ice of the United States without the written consent of his parents or guardians, provided that such minor has such parents or guardians entitled to his custody and control;
Sec. 27, act of June 3, 1916 (39 Stat. 186). This section superseded R. S. 1117, which provided that no person under the age of 21 years should be enlisted or mustered into the military service of the United States without the written consent of his parents or guardians, provided such minor had such parents or guardians entitled to his custody and control.
For penalty on an officer knowingly making a false enlistment, see A. W. 55, ch. 52, post.
Notes of Decisions.
Military service. The words
military service" include the Volunteer Armwell as the Regular Army, having the same meaning as the same words in sec. 5, act of July 4, 1864, and secs, 17, 18, act of Mar. 3, 1865, which were acts clarly relating to the Volunteer Army. In re Burns (C. C. 1898), 87 Fed. 796, 797 ; appeal dismissed, U. S. 0. Burns 1898), 100 Fed. 1005, 40 C. C. A. 688; contra, see Lanaban 1. Birge (1862), 30 Conn. 438.
Construction. This section superseded R. S. 1117, and therefore the consent of the parent of one over 18 years of age is not necessary to the validity of his enlistment or muster into the military service. Brockman (Sup. Ct. D. C., 1917), 45 Wash. L. R. 133.
Enlistment of minors.--The enlistment of an infant was good at the common law. Commonwealth v. Gamble (Pa. 1824), 11 Serg. & R. 93; U. S. v. Lipscomb (Va. 1847), 4 Grat. 41.
Unquestionably Congress has constitutional power to enlist minors in the Army without the consent of their parents. U. S. v. Bainbridge (C. C. 1816), Fed. Cas. No. 14,497. And see Commonwealth v. Murray (Pa, 1812), 4 Bin. 487, 5 Am. Dec. 412; Same v. Barker (Pa. 1813), 5 Bin. 423; Same v. Biddle (1846), Brightly, N. P. 447, 4 Clark, 35, 6 Pa, Law J. 288; Same v. Fox (1847), 7 Pa. St. (7 Barr) 336, 7 Pa. Law J. 227.
Owing to the fact that the law in respect to the enlistment of minors bas been
changed from time to time, as indicated by the summary thereof, under 2165, ante, the decisions of the courts thereon have not al. ways 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, ovly 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 eniistment conclusive as to the age of the recruit, (1873) 14 Op. Atty. Gen. 210.
Act of Feb. 13, 1862, providing that enlistnients 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, en. listed 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. 2,150a. [C. S. p. 3714.) Also tbat 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; Commons wealth w. Biddle (Pa. 1846), Brightly, N. P. 447. Ilso 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), Ted. Cas. No. 11,834 ; In re Davison (C. C. 1884), 21 Fed. 618; In re Hearn (D. C. 1887), 32 Fed. 141, 242; 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.
Want. Jan 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 colists without consent of parent guardian, when such conscnt 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 (1830), 137 U. S. 157 ; Ex parte Dostal (D. C. 1917), 243 Fed. 664, 609; Ex parte Rush (D. C. 1917), 240 Fed. 172 ;
Reed Cushman (C. C. A. 1917), 251 Fed. 872; 11oskins 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. Iloskins V. Pell (C. C. A. 1917), 239 Fed. 279; In re Lawler (D. C. 1890), 40 Fed. 223. But see In re Cosenov (C. C. 1889), 37 Ted. 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.
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 void. able, pot 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 tłe 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 the son's enlistment in the Army.
In re 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 anplies 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