is an mass. 31
liable to punishment for violation of the articles of war, until such time
as the contract of enlistment should be avoided, and, consequently,
that bemay be lawfully restrained by the respondent, at;least until
the judgment of the court-martial shall be pronounced on the pending
charges.
In cases where there was no statutory prohibition against the en-
listment, and wheretthe contract was sought to be avoided on the
sole ground that it was made by a person under age, it is well settled
that the recruit is to be taken to be an enlisted man, and subject to
punishment for violation of his duty as such, until the contract shall be
avoided by proper proceedings. This rule is plainly laid down by
Judge Lowmnn, In re Wall, 8 Fun. Bur. 85, and is abundantly supported
by the cases there cited. It is to be noted, however, that in Wall'.;
Case, as well as in all the cases there cited, with two exceptions, to
which reference will be hereafter made, it appeared that there was no
statute prohibiting the enlistments. Those cases are not, therefore,
of authority here. In Com. v. Fox, 7 Pa. St. 336, the prisoner had en-
listed in the army, and had deserted and surrendered himself, and it
appeared that he was the minor son of the relator, who had never
consented to the enlistment. He was discharged from custody. It
seems also to be a clear inference from the language of Judge Wanmcn,
In re Davison, 21 Frm. REP. 618, that a similar order would have been
made in that case if the parent of the soldier entitled to his custody
and control had made application for his discharge. In U. S. v.
Hanchett, 18 Fan. Bar. 26, the soldier, in a case similar to this, was
discharged on his own application. On the other hand, it is to be
noted that in McNulty2s Case, 2 Low. 270, the prisoner, who had en-
listed in the marine corps contrary to the prohibition of the statute,
was discharged on the ground, as stated in the opinion, that the en-
listments were "voidable by the minors themselves, or by their parents,
as well as by the government ;" and this case was referred to in W alZ’s
Case, cited, above, as authority for the decision there made. It seems,
therefore, to be declared in both cases that an enlistment such as that
now in question is not to be held absolutely void. If such a conclu- c
sion had appeared to be deliberately expressed by the learned judge
who delivered the opinion in both those cases, it would undoubtedly
be entitled to much consideration, although not necessary to the de-
cision of the cases then in hand. But it appears to me that the opin-
ions do not contain clear evidence of such deliberate conclusion. In
the first place, the opinion in McNalty’s Case contains no discussion,
and no express statement, as to whether the enlistment is voidable in
distinction from being void; and it seems to me, from the reading of
the whole opinion, that when the argument ofthe case had progressed
so far in the mind of the judge as to reach the conclusion that the
enlistment was voidable, from which it necessarily followed that the
prisoner must be discharged, the consideration of the further question,
whether it was not also absolutely void, may have been postponed.