In re Cosenow

• Decision Date: 06 February 1889
• Citation: 37 F. 668
• Parties: In re COSENOW.
• Court: U.S. District Court — Eastern District of Michigan

37 F. 668

In re COSENOW.

United States Circuit Court, E.D. Michigan.

February 6, 1889

Syllabus by the Court

A minor soldier of the army, in confinement under a charge of desertion, will not be discharged from military service until he has been released from such confinement.

A minor's contract of enlistment is not void, but voidable.

It seems that if he be over 16 years of age he can only be discharged upon the application of his parent or guardian otherwise, if he be under 16, or if he were insane or intoxicated at the time of his enlistment.

J. B McCracken, for petitioner.

Charles T. Wilkins, Asst. Dist. Atty.

BROWN J.

By Rev St. Sec. 1117, '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. ' The power of the federal courts to discharge soldiers who have been enlisted in violation of this section is now so well settled that a citation of authorities is unnecessary.

The only complication in this case arises from the fact that the soldier has been tried upon a charge of desertion, and is now in custody, awaiting the disposition of his case by the reviewing authority. By the forty-seventh article of war 'any officer or soldier who, having received pay, or having been duly enlisted in the service of the United States, deserts the same, shall * * * suffer, * * * in time of peace, any punishment, excepting death, which a court-martial may direct. ' Petitioner claims that if it be once conceded that his son's enlistment was in violation of law, he was never duly enlisted, and a court-martial had no jurisdiction to try him for desertion. In our opinion, however, section 1117 refers only to such recruits as have gone through the form of an enlistment, and have thereby become subject to the rules and articles of war. The prohibitory language used in section 1117 is repeated in section 1118, which declares that '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 a felony, shall be enlisted or mustered into the military service. ' The enlistment of a recruit in violation of either section is equally illegal, and the proposition of the petitioner amounts to this: that any soldier who conceives he has been illegally enlisted, either by reason of his minority, or by reason of his insanity or intoxication at the time of enlistment, or by reason of a prior desertion from the military service, or of his having been convicted of a felony, may take the law into his own hands, and desert the service without any other liability than that of establishing his disability, if he happen to be apprehended as a deserter. We are not prepared to adopt so dangerous a doctrine. Carried to its legitimate extent, it would authorize any recruit, upon the eve of an important battle, or after the commission of any military offense, to abandon his colors, perhaps in the very face of the enemy; and the officer who should order his arrest would be liable as a trespasser. To our minds the very statement of this proposition is its own answer. There is no doubt whatever of the power of congress to authorize the enlistment of minors, even without the consent of their parents, and to that extent to abrogate the common-law disability of the infant to contract. U.S. v. Bainbridge, 1 Mason, 71; In re Davison, 21 F. 618. In case of an illegal enlistment, the rights of the soldier and of his parents are abundantly protected by an appeal to the secretary of war under the fourth article of war, or by a writ of habeas corpus issuing from any federal court. An enlistment contrary to law is not void, but voidable. If the soldier and his guardian both consent to his serving, the enlistment is binding, and the only object of obtaining the consent of the guardian in writing is that it cannot be retracted. So long as the verbal consent of the parent or guardian is not withdrawn by the commencement of proceedings to obtain his release, the recruit is bound to military service, and is subject to the rules and articles of war. There is a marked distinction between the language used in sections 1117 and 1118. By an express proviso in the former, the enlistment of the minor is valid, in the absence of parents or guardians entitled to his custody and control. Indeed, the decided weight of authority is that the recruit is estopped by his own oath of full age; that, as to him, the enlistment is valid and binding, and that no one but his parents or guardian can claim his...