relative rights and duties; and although he may violate his contract obligations, his status as a soldier is unchanged. He cannot of his own volition throw off the garments he has once put on, nor can he, the state not objecting, renounce his relations and destroy his status on the plea that, if he had disclosed truthfully the facts, the other party, the state, would not have entered into the new relations with him, or permitted him to change his status. Of course these considerations may not apply where there is insanity, idiocy, infancy, or any other disability which, in its nature, disables a party from changing his status or entering into new relations. But where a party is sui juris, without any disability to enter into the new relations, the rule generally applies as stated. A naturalized citizen would not be permitted, as a defense to a charge of treason, to say that he had acquired his citizenship through perjury, that he had not been a resident of the United States for five years, or within the state or territory where he was naturalized one year, or that he was not a man of good moral character, or that he was not attached to the constitution. No more can an enlisted soldier avoid a charge of desertion, and escape the consequences of such act, by proof that he was over age at the time of enlistment, or that he was not ablebodied, or that he had been convicted of a felony, or that before his enlistment he had been a descrter from the military service of the United States. These are matters which do not inhere in the substance of the contract, do not prevent a change of status, do not render the new relations assumed absolutely void; and in the case of a soldier, these considerations become of vast public importance. While our regular army is small compared with those of European nations, yet its vigor and efficiency are equally important.

An army is not a deliberative body. It is the executive arm. Its law is that of obedience. No question can be left open as to the right to command in the officer, or the duty of obedience in the soldier. Vigor and efficiency on the part of the officer, and confidence among the soldiers in one another, are impaired if any question be left open as to their attitude to each other. So, unless there be in the nature of things some inherent vice in the existence of the relation, or natural wrong in the manner in which it was established, public policy requires that it should not be disturbed. Now, there is no inherent vice in the military service of a man 40 years of age. The age of 35, as prescribed in the statute, is one of convenience merely. The government has the right to the military service of all its able-bodied citizens; and may, when emergency arises, justly exact that service from all. And if, for its own convenience, and with a view to the selection of the best material, it has fixed the age at 35, it is a matter which in any given case it may waive; and it does not lie in the mouth of any one above that age on that account alone, to demand release from an obligation voluntarily assumed, and discharge from a service voluntarily entered into. The government, and the government alone, is the party to the transaction that can raise objections on that ground. We conclude, therefore, that the age of the petitioner was no ground for his discharge.

A minor question arises on these facts as to whether the petitioner was in fact enlisted. It appears that on Saturday, February 18, 1888,

the petitioner entered the recruiting rendezvous in Boston, and expressed a desire to enlist. He underwent a physical examination. He took the oath of allegiance before the recruiting officer, signed the clothing rolls, and was placed in charge of the sergeant. The latter took him to the clothing-room, and selected for his uniform a cap, trousers, blanket, shirt, and pair of stockings, and laid them before him. He put none of these articles on except the cap, and that in a few minutes he took off. He then asked permission to go away and see his friends, and the sergeant told him to go, and be back on Monday. He went away in his citizen's clothes, returned to his mother's house and told her what he had done. She was very much grieved, and after some conversation with him went to the recruiting office, and finding three men there, told them her errand, and was advised substantially that Grimley need not come back, and might go to work. Who these men were is not disclosed. On the strength of that he did not return, but went off and engaged in service as a coachman. He was arrested as a deserter on May 16, 1888, brought before a court-martial, and found guilty, as heretofore stated.

The oath of allegiance which he took was as follows: "The United States of America. State of Massachusetts, city or town of Boston -ss.: I, John Grimley, born in Armagh, in the state of Ireland, aged twenty-eight years and months, and by occupation a groom, do hereby acknowledge to have voluntarily enlisted, this eighteenth day of February, 1888, as a soldier in the army of the United States of America, for the period of five years, unless sooner discharged by proper authority; and do also agree to accept from the United States such bounty, pay, rations, and clothing as are or may be established by law. And I do solemnly swear (or affirm) that I will bear true faith and allegiance to the United States of America, and that I will serve them honestly and faithfully against all their enemies whomsoever; and that I will obey the orders of the president of the United States, and the orders of the officers appointed over me, according to the rules and articles of war. John Grimley. [Seal.] Subscribed and duly sworn to before me this 18th day of February, A. D. 1888. James Miller, Captain 2d Infantry, Recruiting Officer."

The question presented is whether the petitioner had, in fact, enlisted and become a soldier. It will be noticed that in this oath of allegiance. is an acknowledgment that he had enlisted, and that it was not an agreement to enlist. In this respect this case differs from that of Tyler v. Pomeroy, 8 Allen (Mass.) 480, in which the plaintiff, with others, had signed a paper by which, in terms, they agreed to serve for a period of three years "from the date of our being mustered into the United States' service." In that case Mr. Justice Gray, then a member of the supreme court of Massachusetts, in an opinion reviewing all the authorities in England and in this country, drew a distinction between an agreement to enlist, which, if broken, simply gives a right of action for damages, and an enlistment, which changes the status of the party, transfers him from civil to military life, and renders him amenable to military jurisdiction. Section 1342 of the Revised Statutes provides that the army of the United States shall be governed by certain rules and articles thereafter stated. Article 2 provides: "These

rules and articles shall be read to every enlisted man at the time of, or within six days after, his enlistment, and he shall thereupon take an oath or affirmation," etc. Obviously, the oath is the final act in the matter of enlistment. Article 47, respecting desertion, reads: "Any officer or soldier who, having received pay, or having been duly enlisted in the service of the United States, deserts the same," etc. By this, either receipt of pay or enlistment determines the status; and after enlistment the party becomes amenable to military jurisdiction, although no actual service may have been rendered and no pay received.

It is insisted that the articles of war were not read to him; but that is not a prerequisite. "Within six days after" is the statute. The reading of the 128 articles, many of which do not concern the duty of a soldier, is not essential to his enlistment. Paragraph No. 766 of the army regulations of 1881 is as follows: "The forms of declaration, and of consent in the case of a minor, having been signed and witnessed, the recruit will then be duly examined by the recruiting officer and surgeon, if one be present, and, if accepted, the 47th and 103d articles. of war will be read to him, after which he will be allowed time to consider the subject until his mind appears to be fully made up before the oath is administered to him." That this was complied with is probable, from the testimony. The petitioner testifies that something was read to him out of a book, though he is unable to say what it was; and Captain Miller, the recruiting officer, testifies that he is under the impression, though not positive, that he read the forty-seventh article to him. He also says that he had quite a conversation with him, inquiring as to his past life and why he had decided to enlist. No solicitations were used, no advantage taken of him. The enlistment was a deliberate act. No specified amount of time for the purpose of consideration is prescribed by the regulation. The oath is not to be administered until his mind is fully made up, and that is all that is required. There is nothing in the circumstances surrounding the enlistment to vitiate the transaction. We conclude, therefore, upon the whole case, that the age of the petitioner was no bar to his enlistment of which he can take advantage; that the taking of the oath of allegiance is the pivotal fact which changes the status from that of civilian to that of soldier; that the enlistment was a deliberate act on the part of the petitioner; and that the circumstances surrounding it were not such as would enable him, of his own volition, to ignore it, or justify a court in setting it aside.

The judgment of the circuit court will be reversed, and the case remanded, with instructions to reverse the decree of the district court and take such further proceedings as shall be in conformity with the opinion of this court.

2. In re MORRISSEY.

(Supreme Court of the United States, 1890. 137 U. S. 157, 11 Sup. Ct. 57, 34 L. Ed. 644.)

Appeal from the circuit court of the United States for the eastern district of Missouri.

BREWER, J. This case, appealed from the circuit court for the eastern district of Missouri, presents, like that of U. S. v. Grimley, ante, 137 U. S. 147, 11 Sup. Ct. 54, 34 L. Ed. 636, (just decided,) a question arising on habeas corpus as to the right of the petitioner, an enlisted soldier, to be discharged from military custody. An effort was made to bring this case here by writ of error; but that was abandoned, and an appeal rightfully substituted. In re Neagle, 135 U. S. 42, 10 Sup. Ct. 658, 34 L. Ed. 55. The facts differ from those in that case, in this The petitioner was 17 years of age, and had a mother living who did not consent to his enlistment. Upon his enlistment he drew from the United States his uniform and equipments, and continued in actual service from the 23d day of August to the 13th day of September, 1883, when he deserted. He remained in concealment until February, 1889, at which time he had become of age, and then appeared at a recruiting office and demanded his discharge from the army on the ground that he was a minor when enlisted. In his oath of allegiance he swore that he was 21 years and 5 months old. It will be seen that the petitioner was within the ages prescribed by section 1116 of the Revised Statutes, to-wit, 16 and 35 years. Section 1117 provides that "no person under the age of twenty-one years shall be enlisted or mustered into the military service 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." But this provision is for the benefit of the parent or guardian. It means simply that the government will not disturb the control of parent or guardian over his or her child without consent. It gives the right to such parent or guardian to invoke the aid of the court, and secure the restoration of a minor to his or her control; but it gives no privilege to the minor. The age at which an infant shall be competent to do any acts or perform any duties, military or civil, depends wholly upon the legislature. U. S. v. Bainbridge, 1 Mason, 71, Fed. Cas. No. 14,497; Wassum v. Feeney, 121 Mass. 93, 95, 23 Am. Rep. 258. Congress has declared that minors over the age of 16 are capable of entering the military service, and undertaking and performing its duties. An enlistment is not a contract only, but effects a change of status. Grimley's Case, supra. It is not, therefore, like an ordinary contract, voidable by the infant. At common law an enlistment was not voidable either by the infant or by his parents or guardians. King v. Inhabitants, etc., 2 Dowl. & R. 628, 634, 1 Barn. & C. 345, 350; King v. Inhabitants, etc., 1 Man. & R. 25, 31, 7 Barn. & C. 226, 231; Com. v. Gamble, 11 Serg. & R. (Pa.) 93; U. S. v. Blakeney, 3 Grat. (Va.) 405, 411-413. In this case the parent never insisted upon her right of custody and control; and the fact that he had a mother living at the time is,

therefore, immaterial. 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. His mother not interfering, he was bound to remain in the service. His desertion and concealment for five years did not relieve him from his obligations as a soldier, or his liability to military control.

The order of the circuit court remanding him to the custody of the appellee was correct, and must be affirmed.