Evening star. [volume] (Washington, D.C.) 1854-1972, 1898-05-27
ENLISTMENT OF MINORS
Secretary Of War Alone Authorized to Order
Their Release.
Test Cases Under Hnbeas Corpus Pro-
ceedfngs-Trin1 for Desertion-De-
cisiOns of Civil Courts.


court martial, Of young Virginia volun-
teer on the charge of desertion from the
army since the establishment of Camp Lee
at Richmond, and the efforts in MANY
cases of friends to have their relatives or
wards discharged from the service because
of tie alleged minority of the latter at the
time of enlistment has attracted much
attention under the military law 1t is
only through the grace of the Secretary Of
war that any man can leave the army of
Uncle Sam after being regularly enlisted.
The civil courts are powerless, it is under
stood, to remedy the matter through habeas
corpus proceedings.
1t Is true that the latter means is often
tried by parents of sons who have gone
INTO the army against their will. But in
every instance thus far reported the de-
c1sion has been against the person institut-
ing the proceedings. There have been
cases within the last four days where
young mer have been discharged from the
army by the Secretary of War upon the in
tercession OF relatives or guardians but
TINS was altogether optional with Secretary
Alger, and not because there is any law in
existence which might compel him to do
4 Recent Decision.
The most prominent case of the kind thus
far is that of w. Maulsby Carter Of Balt-
more, private in Company A, 9TH Regi-
ment of Maryland. Mr.. Francis NJ Carter
guardian of Private Carter, objected to his
serving, he being a minor. AS soon as Mr..
Carter heard that his ward had enlisted he
employed an attorney to secure his release.
After various informal proceedings before
the officers of the regiment, all of which
failed of the object for which they were
instituted, writ of habeas corpus was
sued out in the United States court at Bal
timore, Judge Morris presiding and was
at fret Intar
mined by Mr. Carter, ST.. to appeal from
Judge Morris decision through the United
States Circuit Court of Appeals, but after
wards it WAS determined to appeal directly
to the War Department.
In deciding the Judge Morris said
the law prohibiting the enlistment of
cruits unGer the age of twenty-one without
the written consent of their parents or
guardians was not intended for the benefit
of the recruits but for the benefit of their
parents or gus rdians. In the case of young
Carter he had not been in the actual con-
troll of his grandfather (his GUARDIAN for
some years and ne was so nearly of age
as 10 have the right to choose for himself
in the matter.
Il deem it my duty" Judge Morris said
in conclusion to remand the party to the
custody in which he was found"
statement of tie case prepared by
the attorney for young Carter which was
transmitted to Representative John e
Rixey Of Virginia, friend of the Carter
tary Alger. The Secretary ordered the
young mans discharge.
Courts without Jurisdiction.-
THAT the courts have no jurisdiction
in the matter was settled after a long fight
in the Supreme Court of Appeals of Vir-
gina,' said We'll informed lawyer of Rich
mond. Va. to a Star reporter, more than
fifty years ago-this decision being also in
effect confirmed by the United States SUI
preme Court upon similar question being
raised before that tribunal at later date"
the Virginia case. continued the law
yer, was that of one George w. Blakeny.
who enlisted volt rtarily in the Berkely
guards in 1916 al tie age of nineteen years.
In less thar a year the young man grew
tired of army life, and through his father
and man to whom he had been appren-
ticed until he was twenty-one years of age,
sued out of a writ of habeaS corpus oe-
manding his discharge by Uncle Sam.
"A kindly judge in his home county or
deTed his discharge. but the War Depart
ment took an appeal to the Supreme Court
Of Appeals, and in that court the decision
of the court below was reversed, and the
soldier remanded to serve out the term of
his enlistment. The case was argued by
able counsel in the higher court, and the
opinion of the majority was written by
judge who has always been regarded one
of the ablest jurists Virginia has produced.
one of the judges who sat the bench
and occurred in the opinion the faith
of Senator Daniel, the senior senator
from Virginia.
Extract From Opinion.
IAN extract from the opinion recorded
in the reports of the Supreme Court of APP
peals states that it was obvious that the
enlistment of "a minor capable of bearing
arms did not fall within the general rule of
the municipal law in regard to the incapac-
ity of infants under the age of twenty -one
ind :
the capacity of all citizens able to bear
arms to bind themselves to do so by volun-
tary enlistment was in itself q high rule of
law, to which the artificial and arbitrary
rule of the municipal law formed no excep-
ton; that the rule of the public law was
subject to but two conditions-the ability
to bear arms and the consent to do So and
that these conditions might exist at the age
of eighteen, as well as at the age of TWEEN
ty-one years.
Continuing, the court said: The ques-
ton still remains whether a minor capable
of bearing arms may bind himself by his
consent, or, what is the same thing his
contract. to do So And why may he not?
Why may not a man of eighteen do This
as well as man of twenty-one? What Is
there alarming in this?
- Is it because of his being emanclpated
for the time from parental authority and
placed under the authority of the state?
Or because of the greater pain it may give
his parents and friends that he should en-
gage in military service at the former than
at the latter age? Or because of the priya-
lions and hardships to which he is thus
sooner exposed? The parental authority is
given, not for the advantage of the father
the state.
And who shall say that it Is not for the
dement, Of the minor and of the state that
ne shall step forward in time of need to de-
reno the right, interests and the honor of
the state
In conclusion, the opinion was given that