The Montgomery advertiser., 1903-03-01

time of peace. thereby acquires a naval status. for a breach of the discipline or which there can arise a right, wh'ch can defeat the fathers paramount prerosa, tive to demand the custody ana eofeFoi of his child.
 When persons enter into transacuoh offensive to public policy, the law, "ith few exceptions not here maternal iea'es them where 1t finds them. So Tar as l. has been executed, the law VIII not undo 1t, and so far as 1t Is executory, the law will not lend its aid to entoroe 1t. No right growing out of any conoi- tion resulting from an illegal uahsacuon' will be enforced. 1T to make out thal right the party asserting 1t must iean upon the illegal agreement Ho" can the Government show the ofense here' unless 1t can show against the father valid enlistment? How can It iaWluny detain the minor. without having the court to give life to the invalid and void enlistment? Here, the father was not party to the illegal enlistment ana the law puts the guilty and innocent upon different planes. When an illegal trans action creates a status prejudlcial to the rights of an innocent third person, the courts are always swift to set asioe the status, and will promptly rip up the transaction from beginning to end, necessary to unravel his rights. In what plight do these well settled principles or law leave the demand of the United States to retain the minor, as against the father, on the claim that the minor still has subsisting status as an en- listed man, growing out of the forbid den enlistment? When the Tnited States comes into court to assert its rights, 1t xA. 0&l. nd more take advantage of its own wrong than any other party in court Of jus tice.
 In seeking to detain this minor, d. rectly or indirectly, under this enlist ment, which the law denounces as to the father, because the father did not con- sent to it, the Government the party who committed the wrong, is seeking the aid of the court to enforce an illegal contract. or @ status growing out or IL, against an innocent third person. in fa- vor of the Government. the wrong-doer. But for the illegal enlistment, the father is clearly entitled to the custody Of his child. If the court denies him the privl- leges of the writ, 1t inevitably enforces against the father an enlistment which the statute, on grounds of public policy, made utterly void as to him. No right to the custody of a human being can grow out of an agreement, or status of service. which Is contrary to public pol icy. Sommersetts Case, 20 Howelrs State Trials, DDS. 1-7s. The privileges of the writ can never be defeated, except by d restraint under a right which the law recognizes, and will enforce against the party seeking the writ.
 No transaction offensive to public pol icy can be ratified. or given effect In any way, by any power other than the author of the law, unless the lawmaking power, the creator of the prohibition and the policy, delegates its own dispensing power over them, to some other body or agency; and even then, the effect of the prohibition and policy are not withdrawn or subverted, until that body or agency does the things permitted to be done, to | take the sting of the prohibition out of the forbidden act. The terms and pur- poses of the statue there, necessarily, delegate the dispensing power, in this matter, to the parent The statute out laws this enlistment. as to the father. the very moment it is made; and 1t re- mains all the while an outlaw as to the father, unless by some affirmative, ap- | proving act he rescues 1t from the sent | ence of condemnation, which the law pro- | nounces upon 1t in advance. The statute | declares the enlistment Is, from the be- | ginning, as against the father, offensive
 to its policy. It merely leaves to the par ent an election to make a lawful status
 from an initial act which, if left alone
 the law declares shall be wholly vicious and ineffective. The mere giving of this
 power of election to the parent. does no
 take the forbidden enlistment out of the domain of malum prohlbitum, as to thu
 father So long as he refrains from ex
 ercising the power to approve the law
 dlsapproves the enlistment, and keeps 1T
 force the sentence of condemnation whicf
 1t had already pronounced. If the parent | elects to exercise the right ot affirm, tn,
 enlistment becomes valid as to him, al
 initio. If he refrains from exercising hi! | right of election. the forbidden enlist
 ment remans void as 10 hm ab initio
 Here the parent never assented, and tho | enlistment, therefore, remained all the
 while. as to him, under the condemnation
 of the law, and the consequences inva
 riably pronounced upon transactions vio-
 lative of public policy. There never hay
 ing been a time here, when this enlist l ment was not nullity as to the father
 there has been ID interval of time upor
 which the Government could fasten g
 right as against the rather, and thus
 build the foundation for impressIng 2
 status upon the minor. which would give
 the Government the right to detain hin from the custody and control of the par ent The status created by the forbidden enlistment, under the provisions of this statute, is ''voidable'' as to the father only in the large sense, that an affirm alive act of approval may be done by him. which. when done, and not until then. will destroy the status inexorably stamped by the statute upon this enlist ment, n the absence of any interven- ton by the parent to relieve 1t. The en- hstment is not 'voidable' as to the father, in the legal sense of the term