The Union and journal. [volume] (Biddeford, Me.) 1858-1882, 1867-09-13

If indeed, The section referred to had
been applicable to both, think the oath Of
the recruit is not conclusive upon the court
in case where tho legal guardian seeks to
Obtain the custody Of his ward, enlisted
without his knowledge or consent
In proceedings against enlisting or mus.
terng officers, for enlisting or mastering
recruits Of improper age, the oath oil en-
listment would under the statute be conclu-
siye evidence of the age.
The section prohibits the mastering OF
person under the age Of eighteen, in clear,
Unqualified terms Now if his oath is con.
elusive evidence in all cases and upon all
persons, a minor under the age OF eighteen
may, with impunity, disregard the law and
leave all persons remediless. tie may thus
terminate the relation, at any age, existing
between himself and guardian. by the
construction con,ended for by the respond.
ent, the oath would be conclusive upon all
departments Of the government. The re.
cruit might swear falsely with no fear Of
punishment, for perjury. The offence it.
self would be its legal Justification and con.
stitute a conclusive defence. 1t would
leave with minors tho power to introduce
into the army and navy class Of persons
which Congress has absolutely forbidden
should enter, and clothe minor with pow
er TO override The clear, unequivocal pro.
visions of tho same section OF tho statute.
Without going further into the effects OF
such construction, It will now DO per-
ceived il would make the statute Jelo de Sc.
Were this otherwise. ] am satisfied from
nm examination Of tho laws OF tho United
States upon this subject, that there 10 no law
authorizing the enlistment into the navy Of
the United States Of persons under the age
Of twenty.onc years, without the consent
Of their parents or guardians.
The laws of the United States upon this
subject. passed prior to 1897, received the
consideration Of the Supreme Court of
Massachusetts in the case Of Com. vs..
Downes, "a Pick. OF. Alter discussing
the statutes Of the United States, and the
law regulating the rights and duties Of pa
rents and child. guardian and ward, Chief
Justice Shaw in drawing the opinion Of the
court, says:
Tho court arc therefore all OF the opinion that
the laws OF the United States, simply authorizing
Unemployment Of boys. did not Intend to super:
thority from parents and guardians but IL was
intended 10 be carried into effect In subordination
tolthe established rights and powers Of those who
are entrusted by law with the custody OF tho per-
sons and the regulation Of the employment Of
minors
These views arc sustained by him in an
opinion of great clearness, force and logic,
and should be carefully examined by every
one doubling the soundnoss Of his conclu.
,aI FIR fh,
TONERS by that distinguished and able coun-
ssllor, In both the Federal md State courts,
Rufus Choatc, urging the same views
adopted by the court. ...r, $3.50. ..
In the opinion the court say farther,
"that whenever such power" authorizing
the enlistment of minors without the con.
sent Of their parents or guardians,) us in
tended to be exercised, il Is reasonable to
conclude, not only that 1t will be done in
terms admitting Of no douH or controversy,
but that il will no regulated by such reason
able exceptions and limitations, and quail
fed in such manner rs to prevent II from
becoming oppressive and injurious"
This case was argued in October, 1896,
and in March, 1887, another act was passed
authorizing the employment of boys for
the navy with the consent Of their parents
or guardians, not being under thirteen nor
over eighteen, to serve until they arrive at
the nge Of tweniy-one years, and TO enlist
other persons for the navy, to serve for n pc
Rod not exceeding fpe years
The term Of service of minors under
eighteen is made dependent upon their age,
aud may exceed five years. The term for
sother persons" cannot exceed .fre years,
and the net of 1920, which limited tho
term for "other persons" to three years, is
repealed.
I think it is quite apparent the object of
the statute was to change the terms Of ser
vice allowed by former statutes: in the
one case terminating at the age Of twenty
one and embracing it may be e,gh years,
aud in the other case allowing a time not
exceeding five years. As was said Of the
former statutes, in the case Of Com. vs..
Downes, there Is no Intention hero mani
tested "to siipcrsedc and take away all pa.
rental control AMI authority from parents
and guardians" but on tho contrary, !
think The design was to enlist this class OF
persons " in subordination to the established
rights and powers of those who nrc eniriist.
ed by law with the custody Of the persons
and the regulation Of tho employment of
am not aware Of tho existence Of any
statute Of the United States, passed. since
1897 and now in force, indicating the de-
sign Of Congress to slipersede tho well es.
inblishcd and universal rules Of law appli-
cable TO relations OF parent and child, or
guardian and ward. II there arc any such
they have escaped my notice ..r..
therefore think tho writ was properly
issued, and that upon its return, II was
competent for tho court to hear evidence
concerning the age Of the recruit, that being
found to DO less than seventeen years of
agc no was notas admitted by admission Of
the respondent OF sufficient age to be en-
listed without the consent Of his legal
guardian Ind should therefore be discharg-
ed. And ain farther Of the opinion that
the facts set forth in the respondents an
swer, ifihc oath was! conclusive upon the
court, do not show the recruit to be OF an
ngc authorizing his enlistment without the
conscnt Of his legal guardian, and therefore
does not present case upon the face OF The
papers of holding under the authority OF
the U g., consequently the State Court has
jurisdiction upon the face OF tho papers
alone. . a...s r .mr. ,r.
Tint the Federal Courts also have jurs-
diction over such cases there can be no
doubt. The Jurisdiction Of the State Court
Is concurrent with that ofthe Fedral Courts
and in this class Of cases, where the party
is IN the actual custody Of an officer Of the
u. s.. claiming bona fds, 10 hold him by
force of tic laws OF the United Suites
think tho better pructice is to apply to those
courts for The relief desired. They are pre-. |
slIme,l TO be more conyersant with tho laws
governing those cases and can moro readily |
decide the questions raised. Nevertheless.
] have found the question presented to me,
and find no legal reason for avoiding its |
decision and turning the party over to the
United States Courts with the delay and ex.
pensc incident to in. II IS therefore OR-
DERsp. That Charles Me Cdry Be Unchanged