unrrno sums v. HANCHETT. 27
thereto; and on the twenty-second of September last he was arrested
by a sergeant connected with said recruiting station, and has, since s
that time, been confined in the Cook county jail, in the custody of the
sheriff of the said county, as jailer. On the Bling of this petition a
writ of habeas corpus was issued against the jailer, and the officer by A
whom the relator was mustered, and who claims the right to retain
him in custody by virtue of such enlistment and muster. The return
made by the respondents substantially admitsthe allegations in the i
petition, but states that, by the act of desertion after his enlistment  
and muster, the relator has violated the articles of war and is liable
to be tried by a court-martial; r Section 1117, Bev. St., (which "was
the first section of the act of May 15, 1872,) reads as follows: “No
person under the age of 21 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 parents or
guardians entitled to his custody or control."
It being conceded by the return—and. if it were not so conceded, the
evidence upon the point amply establishes the fact—that the relator
was at the time of his enlistment and muster under the age of 21 years,
and that he had parents entitled to his custody and control, I have
no doubt that his enlistment and muster as a soldier were illegal. The ·_
second section of the act of February 13, 1862, contained a clause
which made the statement of the age of the recruit, in his oath of en-
listment, conclusive as to his age; but this provision has not been
carried into the Revised Statutes, and I conclude that the commission-
ers who revised the statutes considered it impliedly repealed by the t
act of May 15, 1872; but this question may not be material to the
disposition of this case, as the statement of the relator in his petition
as to his actual age is not denied or put in issue by the return. The
only question, as it seems to me, presented in this case, is whether
the alleged desertion of the relator, after his muster, and before he
had been assigned to actual duty in the army, requires the court to
leave him in the custody of the army authorities to be tried, if they
choose to try him, as a deserter. I do not think that the mere fact that ‘
this relator, so soon after his muster into the service, and before he
had been assigned to any military duty, left the recruiting station and
did not return thereto, can be considered as a criminal desertion. If
be had deserted after being assigned to duty, and in the face of an _ —
enemy, or under any circumstances which endangered his command, a
different question might be presented; but the desertion here alleged
should, I think, be construed as a mere disaffirmance of his contract ·
of enlistment, made so soon after the enlistment as to relieve it from
any element of turpitude. · · .
We must presume that, after reflecting upon his act of enlistment, ,
the relator either knew or was advised that he could not be detained
in the military service, and that his parents had a better claim to
his services than the United Statesgovernment, and, without any in- ,