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Validity of enlistment in general. This Rection does not render void a voluntary enlistment of one not possessing the required qualifications, U. S. v. Cottingham (Va. 1843), 1 Rob: 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 ase. C. S. r. Griniley (1890), 11 Sup. Ct. 54, 137 U. S. 147, 34 L Ed. 636, reversing (€. €, 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 OD habeas corpus.

Schmeider 1. Barney (e". C. 1875), Fed. Cas. No. 12,462.

Unauthorized agreements.-On habens corpus, it was no grounit 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.- contract of enlistment 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), bed. 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. ('oe v. U. S. (1909), 44 Ct. (l. 419.

And see Tyler v. Pomeroy (1864), 90 Mass.

18 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, wag not sufficient to constitute one a soldier, and render him liable to be seized against his will and taken into camp.

Enlistment of minors.--See 2109, post.

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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 tuited 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, aet of Aug. 1, 1894 (24. 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 enlistments at 18 and 35 years, 2165, ante.

Notes of Decisions.

Aliens.-As to enlistment of aliens under laws prior to the enactment of this sec. tion (or in the absence of any law), see (1841) 3 Op. Atty. Gen. 671 ; (1854) 6 Op.

Atty. Gen. 474; In re Ross (1812), 1 N. Y. Leg. Obs., 341; U. S. v. Wyngoll (N. Y. 1843), 5 Hill, 10 ; Same v. Cottingham (Va. 1813), 1 Rob. 615, 40 Am. Dec. 710.

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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 Barch 2, 1903 (3.2 Stat. 931), 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. 242), 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, sec 2177, post.

Notes of Decisions.

Minors, --See 2169, post, and notes there. under.

Insane or intoxicated persone.—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 ré 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 bis right to reenlist can arise. (1897) 21 Op. Atty. Gen. 568.

Under this section a person convicted of desertion from the military service and af. terwards 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.

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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, i 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 Arm as well 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 clearly relating to the Volunteer Army. In re Burns (C. C. 1898), 87 Fed. 796, 797; appeal dismissed, U. S. v. Burns 1898), 100 Fed. 1005, 40 C. C. A. 688; contra, see Lanahan t'. 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.

In re 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 has been

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 enlist meuts by minors under 18 years of age should be absolutely void, was held not to repeal bymplication 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 discbarged. Commonwealth v. Carter (l'a. 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. 2,136a. [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 Harrison (1814), 11 Mass. 63; Commonwealth 0. Biddle (Pa. 1846), Brightly, N. P. 447. Ilso that the enlistment of a minor under the minimum specifi

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. 1881), 21 Fed. 618; In re learn (D. C. 1887), 32 Fed. 141, :42 ; Wantian v. White (1862), 19 Ind. 470. And that no consent can give power to enlist a minor under such age, nor validate such enlistinent while the minor continues under such age. Want. lan 1. White (1802), 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. l'erry (1830), 137 U. S. 157 ; Ex parte Dostal (D. C. 1917), 243 Fed. 664, 669; Ex parte Rush (D. C. 1917), 240 Feu. 172; Reed V. Cushman (C. C. A. 1917), 251 Fed. 872; Hoskins v. Dickerson (C. C. A. 1917), 239 Fed. 275; Ex parte Beaver (1). 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. loskins 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 Davi. son, 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, pot void, and is not so voidable at the instance of the minor, If, after enlist. ment, 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 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 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

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

Minor without parent or guardian.-It has been held that a minor who has no parent, gardian, 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 cleetion. Commonwealth P. 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. C. S. v. Wright (C. C. 1863), Fed. cas. No. 16,777.

Who are parents or guardians.—The word parents" ineiudes 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), 235.

A court can not discharge from the serv. ice a minor whose parents are nonresident alions, and who at the time of enlistinent had no guardian, on the application of a guardian since appointed. In re Perrone (D. C. 1998), 89 Fed, 150.

Where the mother of a minor, by articles of agreement, gave to others full control, care, and custody and complete manager ment 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 Ariny 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.

i minor, whose enlistment in the Army was invalid, should be released on the application of a person claiming the minor as an apprentiee. Commonwealth v. Harrison (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 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 the application of alleged parents or guardians not domiciled in the l'nited 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) 535; Commonwealth e. Camac (I'a. 1814), 1 Serg. & R. 87. 11. though 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. Prac. 337. And

See In re Kenniston (Mass, 1817), 9 Law Rep. 548.

Where 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 bis release, and testified that she would have been reconciled to it, had he mained in the Army and pot deserted, bat that after his desertion she wanted to keep him out of the Army, her acts constituted an implied consent to his enlist. ment. Ex parte Dunakin (D. C. 1913), 202 Fed. 200.

Effect of relation of master and appren. tice.-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), tained a provision that the oath of a minor enlisting in the Army sbould be conclusive. Under this act it has been held: That the oath was conelusive. U. S. v. Taylor (D. €. 1863), Fed. Cas. No. 16,439; in re Cooley (D. €. 1866), Fadh. Cas. No. 3,102 ; In re Cline (D. C. 1867), Fed. Cas, No. 2,896; In re Riley (D. C. 1867), led. Cas. No. 11,834; (1873), 14 Op. Atty. Gen, 210 ; Ex parte Rielly (N. Y. 1867), 2 Abb. Prac. (N. S.) 3:34. 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 White (1862), 19 Ind. 470; In re Beswick (N. Y. 1863). 25 How. Prac. 149, And it has also breu held that the ordinary enlistment oathi, containing no statement of the age of the re

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cruit, was not conclusive that he is over the age of 18 years, nor was an unsworn stateident of such recruit. In re Tarble (1870), 25 Wis. 390, 3 Am. Rep. 85. And further that the provision applied to a case wbere the recruit falsely represented himself to he 18 years of age, and not where the officer who enlisted him was informed by laim 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. lu re liggins (1863), 16 Wis. 351. And Se U. S. ». Wright (C. C. 1862), Fed. Cas. No. 16,778, bolding tbat the oath was not couclusive upon the courts, but was a protection to the enlisting officer.

In executing the provisions of sec. 20, act of Feb. 24, 1861, and sec. 5, act of July 4, 1864, the Secretary of War was Dot 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.

Ratification of enlistment.-- Where a minor, baving enlisted without the cop. sent of his father, remained in the service more than a year after he became of age, receiving his pay and rations, witbout any dissent, and without any reasonable exenge 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 orged, 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 wbo enlisted in the National Guard, was accepted, took the prescribed oath, and later took the Federal enlistment oath prescribed by tbe national defense act, and received pay and clothing over a long period from the State and federal Governments, is a 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 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 ? 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 urt, 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 F'ed. 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 seryice 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 babeas corpus, to withdraw the party therefrom.

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 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 babeas 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, 616. Contra, see Ex parte lloughton (C. C. 1904), 129

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