MORRISSEY v. PERRY 137 U.S. 157 (1890)

Henry W. Putnam, for appellant.

[137 U.S. 157, 158]   Sol. Gen. Taft, for appellee.

BREWER, J.

This case, appealed from the circuit court for the eastern district of Missouri, presents, like that of U. S. v. Grimley, ante, 54, (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. Rep. 658. 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 [137 U.S. 157, 159]   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; Wassum v. Feeney, 121 Mass. 93, 95. 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. 93; U. S. v. Blakeney, 3 Grat. 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 [137 U.S. 157, 160]   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.