Chapter XXVII.
Habeas corpus

GENERAL--RETURN TO WRIT ISSUED BY A STATE COURT OR JUDGE--RETURN TO WRIT ISSUED BY FEDERAL COURT OR JUDGE--FORMS--BRIEF

153. HABEAS CORPUS--General.--The purpose of the writ of habeas corpus is to bring the person seeking the benefit of it before the court or judge to determine whether or not he is illegally restrained of his liberty. It is a summary remedy for unlawful restraint of liberty and it can not be made use of to perform the function of a writ of error or an appeal. Where it is decided that the restraint is unlawful he is ordered released, but if the restraint is lawful the writ is dismissed. If the restraint be by virtue of legal process, the validity and present force of such process are the only subjects of investigation.

     A State court is without authority to inquire into the legality of the restraint where it appears that the custody is by virtue "of the authority of the United States," the principle being that no State can authorize one of its judges or courts to exercise judicial power, by habeas corpus, within the jurisdiction of another and independent government. No State judge or court, after he or it is judicially informed that the party is held under the authority of the United States, has any right to interfere with him or to require him to be brought before them. If a party thus held be illegally imprisoned, it is for the courts or judicial officers of the United States, and those courts or officers alone, to grant him release. A deserter apprehended by a civil officer authorized by a statute of the United States to apprehend deserters is in the custody of the United States. See 157 (Brief in habeas corpus case).

154. HABEAS CORPUS--Return to Writ Issued by a State Court or Judge.--In the case of a person who has been apprehended under a warrant of attachment (see 97b, Warrant of attachment), the officer on whom the writ was served will not produce the body but will make a return as indicated in 156 (Form B). In other cases, such as the case of an enlisted man or a general prisoner, the officer on whom the writ is served will not produce the body, but will make a return as indicated in 156 (Form D). A brief of authorities (157) is not intended to be attached to such a return.

155. HABEAS CORPUS--Return to Writ Issued by Federal Court or Judge.--The officer upon whom such writ is served will at once report the fact of such service by telegraph direct to The Judge Advocate General of the Army and the commanding general of the corps area (service command) or department, stating briefly the grounds on which the release of the party is sought. The person alleged to be illegally restrained of his liberty will be taken before the court from which the writ has issued and a return made setting forth the reasons for his restraint. See 156 (Forms A and C) and 157 (Brief).

     With reference to the papers to accompany the return in a case to which Form A applies, see 97b (Warrant of attachment). In a case to which Form C applies, the copies of the charges and of the order under which the accused is held in arrest or confinement will be certified by the adjutant and sworn to before an officer authorized to administer oaths for military administration, in the following form:

     I hereby certify that the foregoing is a full and true copy of the original charges preferred against -------- --------, and of the original order for his arrest [or "confinement," as the case may be], and that the same are in the usual form of military charges, and that such charges and order conform to the rules regulating military procedure.

     -------- --------, Adjutant.

     Sworn to and subscribed before me this ---- day of --------,19--.

     Trial Judge Advocate of Court-Martial.
     [Or " Summary Court-Martial."]

     The copy of the order convening the court or publishing the sentence will be certified and verified in a similar manner.

     Should the court order the discharge of the party, the officer making the return, or counsel, should note an appeal pending instructions from the War Department, and he will report to the Adjutant General of the Army the action taken by the court and forward a copy of the opinion of the court as soon as it can be obtained.

     The laws of the Philippine Islands (acts 272 and 421) provide in effect that in certain cases the certificate of the commanding general or of any general officer in command of the department or district as to the facts shall be a conclusive answer to a writ of habeas corpus against a military officer or soldier and is a sufficient excuse for not producing the prisoner. In any such case the body of the prisoner will not be produced, but the return will be made. In other cases in the Philippine Islands the return will be made and the body produced before the proper tribunal.

156. HABEAS CORPUS--Forms.--The return in a particular case should, of course, vary from the form according to the facts. Thus, if the person whose release is sought (Form C) is an officer or a warrant officer, proper changes should be made.

Form A

Return to writ)

In re -------- -------- (name of party held).
(Writ of habeas corpus--Return of respondent)

To the -------- -------- (court or judge):

The respondent, Maj. -------- --------, United States Infantry, upon whom has been served a writ of habeas corpus for the production of -------- --------, respectfully makes return and states that he holds the said -------- -------- by authority of the United States, pursuant to a warrant of attachment issued under Chapter 11, act of June 4, 1920, 22d Article of War, by a trial judge advocate of a lawfully convened general [or "special"] court-martial [or "by a summary court-martial"] and duly directed to him, the said respondent, for execution; that he is diligently and in good faith engaged in executing said warrant of attachment, and that he respectfully submits the same for the inspection of the court, together with the original subpoena and proof of service of the same, a copy of the order appointing the court-martial sworn to as such, before which the said -------- -------- has been subpoenaed to testify, a copy of the charges and specifications in the case, sworn to as such, in which said -------- -------- is a witness, a copy of the order referring the case to the court for trial, sworn to as such, and an affidavit of -------- -------- showing that said -------- -------- is a material witness in the case; that he has failed to appear and has offered no valid excuse for such failure.

In obedience, however, to the said writ of habeas corpus the respondent herewith produces before the court the body of the said -------- --------, and for the reasons set forth in this return prays this honorable court to dismiss the said writ.

-------- --------,
Major, -------- United States Infantry.

Dated --------, --------, 19--.

---

Form B

(Return to writ)

(Make return as in Form A, except substitute for last paragraph the following:)

And said respondent further makes return that he has not produced the body of the said -------- --------, because he holds him by authority of the United States as above set forth, and that this court [or "your honor," as the case may be] is without jurisdiction in the premises, and he respectfully refers to the decisions of the Supreme Court of the United States in Ableman v. Booth (21 How. 506) and Tarble's case (13 Wall. 397) as authority for his action, and prays this court [or "your honor"] to dismiss the writ.

-------- --------,
Major, -------- United States Infantry.

Dated --------, --------, 19--.

Form C

(Return to writ)

In re -------- -------- (name of party held).

(Writ of habeas corpus--Return of respondent) To the -------- -------- (court or judge):

The respondent, Maj. -------- --------, United States Infantry, upon whom has been served a writ of habeas corpus for the production of -------- --------, respectfully makes return and states that he holds the said -------- -------- by authority of the United States as a soldier in the United States Army [or "as a general prisoner under sentence of general court-martial"] under the following circumstances:

That the said -------- -------- was duly enlisted as a soldier in the service of the United States at --------, --------, on --------, 19--, for a term of years. (If the offense is fraudulent enlistment, this recital should be omitted.)

(Here state the offense. If it is fraudulent enlistment by representing himself to be of the required age, it may be stated as follows:)

That on the -------- day of --------, 19--, at -------- --------, the said --------, being under 18 years of age, did fraudulently enlist in the military service of the United States for the term of -------- years, by falsely representing himself to be over 18 years of age, to wit, -- years and -- month ; and has, since said enlistment, received pay and allowances (or either) thereunder.

(If the offense be desertion, it may be stated substantially as follows:)

That the said -------- -------- deserted said service at --------, --------, on-------- --------, 19--, and remained absent in desertion until he was apprehended at --------, -------- on -------- --------, 19--, by -------- --------, and was thereupon committed to the custody of the respondent as commanding officer of the post of --------.

The said -------- -------- has been placed in confinement [or "arrest" as the case may be], and formal charges have been preferred against him for said offense, a copy of which charges, and of the order under which said -------- -------- is held in confinement [or "arrest," as the case may be], duly certified and verified, are hereto annexed; and that he will be brought to trial thereon as soon as practicable before a court-martial, to be convened by the commanding general of the -------- Department [or "convened by Special Orders, No. --, dated Headquarters -------- Department 19--, a copy of which duly certified and verified, is hereto annexed"].

(If the party held is a general prisoner, the following para,=graph should be substituted for the preceding paragraph:)

That the said -------- -------- was duly arraigned for said offense before a general court-martial, convened by Special Orders, No. --, dated Headquarters -------- Department, 19--, was convicted thereof by said court, and was sentenced to be ---------, which sentence was duly approved on the ---- day of --------, 19--, by the officer ordering the court [or "by the officer commanding said -------- Department for the time being"] as required by the ---- Article of War. A copy of the order promulgating said sentence, duly certified and verified, is hereto attached.

In obedience, however, to the said writ of habeas corpus the respondent herewith produces before the court the body of the said -------- --------, respectfully

refers to the decisions cited in the annexed brief [if the case does not involve a minor under the required age the words "respectfully refers to the decisions cited in the annexed brief" will be omitted], and for the reasons set forth in this return prays this honorable court to dismiss the said writ.

-------- --------,
Major, -------- United States Infantry.

Dated --------, --------, 19--.

---

Form D

(Return to writ)

(Make return as in Form C, except as to last paragraph, for which substitute the paragraph set out in Form B.)

157. HABEAS CORPUS--Brief.--The following brief will be filed with a return to a writ of habeas corpus issued by a United States court in the case of a soldier whose discharge is sought on the ground of minority:
     BRIEF

     The right to avoid the contract of enlistment of a soldier on the ground of minority will be considered under the following heads: I. Under the common law; II. Under the statutes; III. Where the minor is held for punishment.

     I. Under the Common Law

     The enlistment of a minor is not avoidable by the minor nor by his parent or guardian at common law, but is only avoidable where the right to avoid it is conferred by statute.

     This proposition is clearly established by the decision of the Supreme Court (In re Morrissey, 137 U. S. 137, 159), where the court said:

     An enlistment is not a contract only, but effects a change of status. (Grimley's case, 137 U.S., 147.) It is not, therefore, like an ordinary contract, voidable by the infant. At common law an enlistment was not voidable either by the infant or by his parents or guardians.

     The court cites, in support of these statements, Rex v. Rotherfield Greys (1 Barn. & Cress, 345, 350; 8 Eng. C.L., 149), Rea: v. Lytchet Matraverse (7 Barn. & Cress, 226, 231; 14 Eng. C.L., 107); Commonwealth v. Gamble (11 Serg. & Rawle (Pa. R.), 93); U.S. v. Blakeney (3 Grattan, 387, 405).

     In Rex v. Rotherfield Greys, supra, it was said by Best, J.:

     By the general policy of the law of England the parental authority continues until the child attains the age of twenty-one years; but the same policy also requires that a minor shall be at liberty to contract an engagement to serve the State. When such an engagement is contracted it becomes inconsistent with the duty which he owes to the public that the parental authority should continue. The parental authority, however, is suspended, but not destroyed. When the reason for its suspension ceases the parental authority returns.

In Rex v. Lytchet Matraverse, supra, Bayley, J., after quoting these views of Best, J., says:

Lawrence, J., in Rex v. Roach (6 T.R., 254), seems to take the same view of the subject and to consider the authority of the State paramount to that of the parent so long as the minor continues in the public service, but as soon as he leaves it then the parental authority is restored.

It is clear from these authorities and others which could be cited that at common law the enlistment of a minor of sufficient capacity to bear arms was valid regardless of age. The right of the State to the services of such minors is forcefully laid down in Lanahan v. Birge (30 Conn., 438). See also Cooley's Constitutional Law, page 99, where on the authority of Ex parte Brown (5 Cranch, C.C., 554; Fed. Cas., No. 1972), and United States v. Bainbridge (1 Mason, 71; Fed. Cas., No. 14497), it is said:

Minors may be enlisted without the consent of their parents or guardians when the law fails to require such consent.

II. Under the Statutes

The pertinent statutes are the following:

SEC. 1116, R.S. Recruits enlisting in the Army must be effective and ablebodied men, and between the ages of sixteen and thirty-five years at the time of their enlistment. This limitation as to age shall not apply to soldiers reenlisting.

This section was modified by the act of March 2, 1899 (30 Stat. 978), which provides:

That the limits of age for original enlistments in the Army shall be eighteen and thirty-five years.

SEC. 1117, R.S. No person under the age of twenty-one 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 such parents or guardians entitled to his custody and control.

This section was replaced by the provision of section 27, national defense act of June 3, 1916 (39 Stat. 186), which reenacted it in the same words, substituting the age of 18 years for the age of 21.

SEC. 1118, R.S. No minor under the age of sixteen years, no insane or intoxicated person, no deserter from the military service of the United States, and no person who has been convicted of a felony shall be enlisted or mustered into the military service.

This proviso was not changed by the Army reorganization act of June 4, 1920, which struck out of section 27 of the national defense act (see 41 Stat. 775) only the first part of the section, up to and including the third proviso, but did not affect the proviso (fifth proviso) here in question.

1. The statutes confer no right upon the minor to avoid his enlistment, certainly not if he be 16 years of age or over.

Section 1116, R.S., as amended, prescribing the age limits of original enlistment, was made for the benefit of the Government, and not the minor. (In re Morrissey, 137 U.S., 157; In re Grimley, 137 U.S. 147; In re Wall, 8 Fed. Rep. 86; In re Davison, 21 Fed. Rep. 618; In re Zimmerman, 30 Fed. Rep. 176; In re Spencer, 40 Fed. Rep. 149; In re Lawler, 40 Fed. Rep. 233; Soloman v. Davenport, 87 Fed. Rep. 318; Wagner v. Gibbon, 24 Fed. Rep. 135.)

Section 1117, R.S., as amended, while recognizing the right of the parent to the services of the minor confers no right in the minor to avoid his enlistment. See the cases cited above.

In the Morrissey case the Supreme Court of the United States said that the provision of section 1116, R.S.--

is for the benefit of the parent or guardian * * * but it gives no privilege to the minor * * * an enlistment is not a contract only, but effects a change of status. It is not, therefore, like an ordinary contract, voidable by the infant * * *. The contract of enlistment was good, so far as the petitioner is concerned. He was not only de facto but de jure a soldier--amenable to military jurisdiction.

Whether the designation of the age limit of 16 years in section 1118, R.S., is such as to make the enlistment of the minor under 16 years of age void or voidable by the minor has not been decided by the Supreme Court. In Hoskins v. Pell (239 Fed. Rep. 279) the court held that such an enlistment was void, but that decision is believed not to be sustained by the weight of authority. On principle, the minor, if of sufficient capacity to render military service, should not be permitted to avoid his enlistment obtained through his fraudulent statements as to his age. However this may be, if the minor continued to serve and receive pay, after passing that age, he acquires the status of a soldier like one who was enlisted when over 16 years without the consent of his parents, and a court-martial has jurisdiction to try and sentence him to punishment for desertion, from which sentence he can not be discharged on habeas corpus on petition of himself or his parents. (Ex parte Hubbard, 182 Fed. Rep. 76.)

2. The statutes requiring the consent of the parent or guardian of a minor to his enlistment (sec. 1117, R.S., amended by sec. 27, act of June 3, 1916) impliedly confer upon the parent or guardian the right to avoid an enlistment entered into by a minor under the prescribed age without the required consent, where the minor is not held for trial or punishment for a military offense.

In support of this proposition see the cases cited under II, proposition 1.

3. A parent or guardian with knowledge of the enlistment of a minor under the prescribed age, and acquiescing therein for a considerable period, may be held to be estopped from asserting the right to avoid the enlistment

In support of this proposition see Ex parte Dunakin (202 Fed. Rep. 290), where it was held, quoting from the syllabi :

Where a minor enlisted without the consent of his parent or guardian, and his mother, who was his surviving parent, on learning of his enlistment shortly thereafter, did nothing to repudiate the same or to secure his release, and testified that she would have been reconciled to it had he remained in the Army

and not deserted, but that after his desertion she wanted to keep him out of the Army, her acts constituted an implied consent to his enlistment.

4. A minor fraudulently enlisting and remaining in the service after attaining the legal age of enlistment, or the age beyond which parental consent is not required, thereby validates his enlistment.

In support of this proposition see the case of Ex parte Hubbard (182 Fed. Rep. 76), where the court held, quoting the syllabus:

A minor enlisted in the Army when under the age of 16, who has continued to serve and receive pay after passing that age, acquires the status of a soldier like one who was enlisted when over 16 without the consent of his parents, and a court-martial has jurisdiction to try and sentence him to punishment for desertion, from which sentence he can not be discharged on habeas corpus on petition of himself or his parents.

III. Where the Minor is Held for Punishment

Neither the minor nor his parent nor guardian may avoid the enlistment where the soldier is held for trial or under sentence for a military offense.

In support of this proposition see the cases cited above under II, proposition 1, and also the following. In re Kaufman (41 Fed. Rep. 876); In re Dohrendorf (40 Fed. Rep. 148); In re Cosenow (37 Fed. Rep. 668); In re Dowd (90 Fed. Rep. 718); In re Miller (114 Fed. Rep. 838); United States v. Remes (126 Fed. Rep. 127); In re Lessard (134 Fed. Rep. 305); Ex parte Anderson (16 Iowa 595); McConologue's case (107 Mass. 154, 170); In re Carver (142 Fed. Rep. 623); In re Scott (144 Fed. Rep. 79); Dillingham v. Booker (163 Fed. Rep. 696); Ex parte Rock (171 Fed. Rep. 240); Ex parte Hubbard (182 Fed. Rep. 76); Ex parte Lewkowitz (163 Fed. Rep. 646); United 8tates v. Williford (220 Fed. Rep. 291).

The reasons given for these decisions are that the enlistment of a minor in the Army without the consent of his parent or guardian required by section 1117, R.S., "is not void, but voidable only"; that the soldier being not only de facto but de jure a soldier, he is subject to the Articles of War and may commit a military offense; and that if held for trial or punishment for a military offense, the interests of the public in the administration of justice are paramount to the right of the parent or guardian, and require that the soldier abide the consequences of his offense before the question of his discharge will be considered by the court. In the Miller case (114 Fed. Rep. 842), the court supported its holding by the analogy of a minor held for punishment for a civil offense, saying:

The common law, unaided by statute fully recognizes the parents' right to the custody and services of their minor child; but it has never beep held that

they could, by the writ of habeas corpus or otherwise, obtain his custody and his immunity when he was held by an officer of a civil court of competent jurisdiction to answer a charge of crime. His enlistment having made the prisoner a soldier notwithstanding his minority, he is amenable to the military law just as the citizen who is a minor is amenable to the civil law. The parents can not prevent the law's enforcement in either case * * *.

The views here cited were approved in the Remes case (126 Fed. Rep. 127),where upon full consideration of the authorities the Circuit Court of Appeals remanded Reaves, a minor, who had deserted from the Navy, to custody of the naval authorities as represented by the chief of police who had apprehended him. In the Carver case (142 Fed. Rep. 623) the syllabus is as follows:

A minor under the age of 18 years who unlawfully enlisted in the Army without the consent of his father can not be discharged from the service on a writ of habeas corpus issued out by his father so long as he is under arrest for desertion nor until he has been discharged from such custody or has served the sentence imposed on him by the military tribunal. In the Lewkowitz case (163 Fed. Rep. 646), the syllabus reads:

"A minor who by misrepresenting his age has fraudulently enlisted in the Army without the consent of his parents and thereby subjected himself to punishment under military law will not be relieved from such punishment by the civil courts by discharging him on a writ of habeas corpus on the application of his parents, even though the military prosecution is not instituted until after the writ was issued."

This was followed by the unanimous opinion in the Circuit Court of Appeals in the Love case (United States v. Williford, 220 Fed. Rep. 291), in which the court expressly approved the view stated in the Lewkowitz case, quoting section 761, R.S., relating to procedure under writs of habeas corpus, which reads as follows:

The court, or justice, or judge shall proceed in a summary way to determine the facts of the case by hearing the testimony and arguments and thereupon to dispose of the party as law and justice require.

The court added:

Law and justice do not, in our opinion, require Love to be withdrawn from the military authorities and relieved of liability for his offense in favor of his mother's right to his custody.

By act of July 27, 1892 (27 Stat. 278), "fraudulent enlistment and the receipt of pay or allowance thereunder" was made a military offense, punishable under the 62d Article of War. The offense is now defined in article 54, revised Articles of War, approved June 4, 1920 (41 Stat. 800), which provides that the offense "shall be punished as a court-martial may direct." A minor who procures his enlistment by willful misrepresentation or concealment as to his qualifications for enlistment, and receives pay or allowances under his enlistment, commits this offense, and the statute authorizes his punishment therefor. In general, it may be stated that where a minor

has committed a military offense the interests of the public in the administration of justice are paramount to the right of the parent and require that the soldier shall abide the consequences of his offense before the right to his discharge be passed upon. The soldier should not be allowed to escape punishment for his offense, even though his parents assert their right to his services. A minor in civil life is liable to punishment for a crime or misdemeanor, even though his confinement may interfere with the rights of his parents; and the above authorities clearly apply the same rule to a minor held for trial or punishment for a military offense.

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