Opinion of the Court.

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 citizens' 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.

"I, John Grimley, born in Armagh, in the State of Ireland, aged twenty-eight years and months, and by occupation

Opinion of the Court.

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, 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,

Opinion of the Court.

and he shall thereupon take an oath or affirmation," &c. 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," &c. 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 one hundred and twenty-eight 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 47th 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

Citations for the Petitioner.

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.

In re MORRISSEY, Petitioner.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF MISSOURI.

No. 931. Submitted October 21, 1890.- Decided November 17, 1890.

This case is rightfully brought here by appeal, and not by writ of error. The provision in Rev. Stat. § 1117," that no person under the age of twentyone 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," is for the benefit of the parent or guardian, and gives no privilege to the minor, whose contract of enlistment is good so far as he is concerned.

The age at which an infant shall be competent to do any acts, or perform any duties, civil or military, depends wholly upon the legislature.

THE case is stated in the opinion.

Mr. Henry W. Putnam and Mr. Daniel Noyes Kirby for the petitioner, cited the following cases in their brief: Ex parte Mason, 1 Murphy (N. C.) 336; Shorner's Case, 1 Caroiina Law Repository, 55; United States v. Anderson, 1 Cooke (Tenn.) 143; Commonwealth v. Harrison, 11 Mass. 63; Commonwealth v. Cushing, 11 Mass. 67; S. C. 6 Am. Dec. 156; Commonwealth v. Callan, 6 Binney, 255; Lewis' Case, 2 Carolina

Opinion of the Court.

Law Repository, 47; Carleton's Case, 7 Cowen, 471; Commonwealth v. Downes, 24 Pick. 227; Keeler's Case, Hempstead, 306; Commonwealth v. Fox, 7 Penn. St. 336; Kimball's Case, 9 Law Rep. 500; United States v. Wright, 5 Philadelphia, 296; In re McDonald, 1 Lowell, 100; In re McLave, 8 Blatchford, 67; Commonwealth v. Blake, 8 Philadelphia, 523; In re McNulty, 2 Lowell, 270; United States v. Hanchett, 18 Fed. Rep. 26; In re Baker, 23 Fed. Rep. 30; In re Chapman, 37 Fed. Rep. 327; State v. Dimick, 12 N. H. 194; S. C. 37 Am. Dec. 197; Telegraph Co. v. Davenport, 97 U. S. 369; United States v. Cottingham, 1 Rob. (Va.) 615; S. C. 40 Am. Dec. 710; Seavey v. Seymour, 3 Cliff. 439; In re Tarbell, 25 Wisconsin, 390; Tucker v. Moreland, 10 Pet. 58; Conroe v. Birdsall, 1 Johns. Cas. 127; S. C. 1 Am. Dec. 105; Merriam v. Cunningham, 11 Cush. 40; Dew's Case, 25 Law Rep. 538.

Mr. Solicitor General opposing.

MR. JUSTICE BREWER delivered the opinion of the court.

This case, appealed from the Circuit Court for the Eastern District of Missouri, presents, like that of Grimley, Petitioner, 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. 1, 42. The facts differ from those in that case, in this: The petitioner was seventeen 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 twenty-one years and five months