The Montgomery advertiser., 1903-03-01


 navy of enforcing the statute, in the
 spirit in which Congress intended 1t, and
 which are the real grounds of the decfs-
 Ions which maintain a contrary doctrine, are largely overdrawn. It is not infre- quently asked, Is a minor circumstanced
 as this one was. to be permitted to i'm
 peril the Army or Navy by abandoning
 his colors or deserting the ship In time of battle, or going over to the enemy and betraying the secrets of his com
 manders, without being amenable to | military punishment for such grave of- | lenses? Such crimes cannot be com
 mitted in time of peace; at such time | there Is no theater of hostilities, no bat | tie, no enemy In time of war such of- | lenses could and would be punished un- der the 46th and 63rd Articles of War.
 One of these articles provides that "all
 retainers to the camp and all persons | serving in the Army of the United States | in the field, though not enlisted sol
 ders, are subject to orders according to the rules and discipline of war" The
 other subjects to court martial "who-
 soever, gives intelligence, etc. It is now l the settled construction, that under these
 articles, a person In the field with the
 army, whether in the service in civil
 or military capacity, or merely lurking | in its lines, can be lawfully tried and | punished, in time of war, for such of | lenses by military tribunals. There are Inappropriate articles as to the Navy, l which authorize the punishment by na- val tribunals of any one. so circum-
 stanced who, in time of war. commits
 any of the crimes to which reference | has been made. If the minor, especially Il after the parents dissent. had no status I as an enlisted man, under the circum- |
 nevertheless, a civilian and still amen-
 able to law. The Army and Navy are often brought into contact with citizens | who infringe upon their rights. In time of peace wrongs committed by civilians must be redressed by the civil courts. The minor, as any other citizen In camp
 or on a vessel, in time of peace, IS
 amenable to punishment In the civil
 courts both of the State and Of the
 United States, for any wrongs to person
 or property, if his conduct constitutes a
 breach of the civil or criminal laws or
 either.
 The offense of desertion, for which the
 minor was held in custody by the chief l of police, consisted in a peaceable leaving the service. True the minor could not disafirm the enlistment of his own vio-
 lation; but he left and came back to the
 father, who ratified and approved the
 act of leaving, and made the act as , effectually his own, as if he had ordered the minor to leave. The minor was back where the law said he belonged.
 The parent had a right to get the GUS } tody and control of the mipor. at least peaceably, wherever he found him. and he had the superior right against any claim growing out of the enlistment, . made without the fathers consent. Blackstone says it may frequently hap pen that a mans wife, children or ser wants, would be concealed and carried out of his reach, if he have no speedier remedy, than the ordinary process of the , law. If, therefore, he can so centrive : as to gain possession of his property, } without force or terror the law favors } and will justify the proceeding" Here,
 the fathers reception of the minor was complete and peaceful. 1t was this peace ful and lawful possession by the father, which was disturbed, when the minor . was taken from his custody by the chief of police,
 3 The naval status of the minor is none 3 the less destroyed, in contemplation of f law, as against the father, because the . Government, refusing to recognize the
 destruction of the status. and insisting s upon 1t, regains the custody of the minor , and thus forces the father to appeal tc r the civil courts to adjudicate and en. c force his rights. Such adjudications dc 1 not create the destruction of the enlist @ ment The law, and if not the law alone the fathers act combined with it, annihi r lates the status. The judgment of the s court merely recognizes and enforces tn, 8 existing right. If, in this instance, the t judgment could be held to create the l right; yet. being in furtherance of jus 7 tice against wrong doer, 1t must re. , late back to the beginning of the illega transaction Surely, the Government is l wrong doer, when 1t insists upon the en. listment in spite of the parents dissent . The statute under which this writ is issued is peremptOry, that within five days after the return to the writ tn, court must summarily hear and adJudgt l the controversy, unless the party peti tioning requests longer time; and there upon dispose of the party" as law anC justice require. The writ of habeas cor.
 pus Is the proper proceeding to deter. mine the status of this minor and thf 2 present right to his custody The petl. toner and the minor are before the court, and so is ihe United States. A
 Judgment discharging the prisoner and ! awarding him to the custody of the fath. er' Will fix the status of the minor growing out of the enlistment. and estor  status, upon any fact existing at the
 time of the hearing Freeman on Judg. , ments, 324; L. s. " Chung Fee Shee 1 Fed. Rep. 277; Welt V. Marley. go Mo . 4o4; People V. Mercein, Hl S99; Me. , Conologue's Case, 107 Mass. TO.
 : The Judgment the court feels bound tc
 render. Is that the enlistment, at leas, after the fathers dsafiirmance, is void as to the father ab nitlo. and that the . minor must be discharged from naval control, and his custody awarded to his
 parent. That judgment will but the prisoner, by operation of law, out of the service as effectualy as a formal dis
 charge by the Navy Department: and i'm press the civilian status upon the minor
 at this time. If therefore, it be con
 ceded, under the circumstances of this } case, that the minor had a naval status. and during its existence, committed a naval offense, for which he could have been punished by a naval tribunal prior to his discharge from the service, the dis charge effected by operation of law, by the Judgment In this proceeding, con : stltutes the minor a mere civilian, whom no military tribunal, in time of peace has any authority to try for any offense , Constitution of the United States. 5th and 9th Amendments; ex-parte Milligan, Wall 2: Winthrop's Military Law and Precedents, Vol. l. pp. 144-5. Holding these views the court would abdicate its duty, if 1t withheld judgment in order to defeat the fathers rights, and leave the minor to the custody of a naval