is for the benefit of the parent or guardian, *** but it gives no privilege to the minor. *** An enlistment is not a contract only, but effects a change of status. It is not, therefore, like an ordinary contract, voidable by the infant. *** The contract of enlistment was good so far as the petitioner is concerned. He was not only de facto, but de jure, a soldier— amenable to military jurisdiction. All the cases cited are instructive as illustrative of the different circumstances under which this principle has been declared. In the Lawler case the deserter was arrested and "held as such awaiting trial, which will be as soon as a court-martial can be convened and organized for that purpose." In the case of Solomon v. Davenport, the deserter was held by a sheriff under a warrant of a United States commissioner. In the Spencer case the court said: The authorities which have been read to me seem to establish very conclusively this rule:-that the enlistment of a minor is voidable, not necessarily void; and that he does really become by such enlistment, although under age, engaged in the service of the United States, and subject to the power and jurisdiction of the military authorities; and, such being the case, the court-martial had jurisdiction to arrest and try him for the charge of desertion. 2. CONTRACT NOT VOIDABLE BY PARENTS OR GUARDIANS IF THE SOLDIER IS HELD PURSUANT TO A SENTENCE OF A COURT-MARTIAL OR ANY STEP HAS BEEN TAKEN WITH A VIEW TO BRINGING HIM BEFORE SUCH COURT In re Kaufman, 41 Federal Reporter, 876; In re Dohrendorf et al., 40 Federal Reporter, 148; In re Cosenow, 37 Federal Reporter, 668; In re Dowd, 90 Federal Reporter, 718; In re Miller, 114 Federal Reporter, 838; U. S. v. Reaves, 126 Federal Reporter, 127; In re Lessard, 134 Federal Reporter, 305; Ex parte Anderson, 16 Iowa, 595; McConologue's Case, 107 Massachusetts, 170; In re Scott, 144 Fed. Rep., 79.. In the Kaufman case the father sought the discharge of his son, who was held by the military authorities and had been ordered before a military court for trial as a deserter. Quoting from the syllabus: A minor who enlists in the United States Army upon his representation that he is of age, and receives pay and clothing and afterwards deserts and is arrested as a deserter, and at the time of his petition is held by the United States awaiting trial by a court-martial for the crime of desertion, will not be released under a writ of habeas corpus upon the ground that being a minor his enlistment was unlawful and contrary to the Revised Statutes of the United States. In the Cosenow case the minor swore that he was twenty-one years and seven months old at the time of enlistment. He deserted, and at the time of the filing of the petition was held in custody awaiting the action of the reviewing authority on the proceedings of the court-martial. His father sought the discharge of his son on the ground of infancy at the time of enlistment. The court refused to discharge him, holding that "an enlistment contrary to law is not void, but voidable"; that the court-martial had jurisdiction of the offense, and the soldier "must be remanded to await the result of his trial." The Dowd case arose on the application of the mother for the release of her son, who was held under sentence of a summary court. The court held, quoting from the syllabus: The enlistment of a minor in the Army without the consent of his parents or guardian, required by Revised Statutes, Section 1117, is not void, but voidable only, and while he remains in the service under such enlistment the minor is amenable to the Articles of War, and can not be remanded to the custody of his parents by a civil court on a writ of habeas corpus while undergoing a sentence imposed on him by a court-martial for a violation of such Articles. In the Anderson case it appears that a minor enlisted without his father's consent, and being held for trial before a court-martial for desertion, his father sought his discharge on habeas corpus. The court refused to discharge the soldier, saying "he must abide by the decision of the latter court (court-martial) before the question of the validity of his enlistment can be determined in the civil courts on habeas corpus." In McConologue's Case the court said: A minor's contract of enlistment is indeed voidable only and not void, and if, before a writ of habeas corpus is sued out to avoid it, he is arrested on charges of desertion, he should not be released by the court while proceedings for his trial by the military authorities are pending. By Act of July 27, 1892, "fraudulent enlistment, and the receipt of any pay or allowance thereunder, is ... declared a military offense and made punishable by court-martial under the 62d Article of War." A minor who procures his enlistment by representing himself to be over age commits this offense, and the statute authorizes his punishment therefor. In general it may be stated that where a minor has committed a military offense the interests of the public in the administration of justice are paramount to the right of the parent and require that the soldier shall abide the consequences of his offense before the right to his discharge be passed upon. (Digest Opin. J. A. G., Sec. 1258 and 1264, and notes.) The soldier should not be allowed to escape punishment for his offense, even though his parents assert their right to his services. A minor in civil life is liable to punishment for a crime or misdemeanor, even though his confinement may interfere with the rights of his parents. In re Miller (114 Fed. Rep., 838) it was held that a minor sixteen years old or over "enlisting without the consent of his parents, on representation that he is of age, becomes a soldier amenable to military jurisdiction for military offenses, and subject to release from service only on application from his parents, who can not prevent his court-martial for past military offenses." In the opinion of the court (page 842) it is said: The common law, unaided by statute, fully recognizes the parents' right to the custody and services of their minor child; but it has never been held that they could, by the writ of habeas corpus or otherwise, obtain his custody and his immunity when he was held by an officer of a civil court of competent jurisdiction to answer a charge of crime. His enlistment having made the prisoner a soldier notwithstanding his minority, he is answerable to the military law just as the citizen who is a minor is answerable to the civil law. The parents can not prevent the law's enforcement in either case. These views were cited with approval in U. S. v. Reaves (126 Fed. Rep., 127), where, upon full consideration of the authorities, the circuit court of appeals remanded Reaves, a minor who had deserted from the Navy, to the custody of the naval authorities as represented by the chief of police who had apprehended him. INDEX Abandoned property. Abandoning fort, post, or guard, etc. (see Art. 42). Absence: members of boards (see Boards). members of courts-n artial (see Courts-martial). of officers and soldiers at muster (see Arts. 7 and 12). acquittal of, includes desertion connected with offense. Accountability for property (see Public Property). Accounts: civilian witness, rules governing. Appendix E...... 530 529 duplication of pay accounts (see Arts. 60 and 61). 528 263 126 before court of inquiry, may testify at his own request. PAR. PAGE Accused (continued): counsel for... defense of (see Defenses). duty of counsel for.. entitled to copy of record of trial, how secured. escape after jurisdiction is assumed for trial. introduction of..... 154 SO 157 81 821 435 156 81 591 266 154 80 court to be appointed by next higher commander 780 418 defined.. { how determined in case of a commander authorized to may remain in court after testifying.. Acquittal: effect of, on charge of desertion, as to absence without 182 95 415 190 602 272 166 86 241 120 128 66 402 184 754 376 of minor included offense precludes trial on major 199 101 of specific offense, acquits of minor included offense.. 198 101 376 175 Act: establishing summary court, Appendix B.. to prevent failure of military justice, Appendix C... Adjournment (see Record). shown in record and authenticated by judge-advocate 411 188 411 187 Administrator: commander in charge of effects of deceased soldier not officer in charge of effects of deceased officer not an administrator. Admissions pertain to civil cases (see Confessions). 833 447 832 445 583 262 |