fault", did not apply to the case of a soldier discharged by reason of expiration of term of service; that the previous convictions could properly have been considered by the board of officers provided for by the regulations in determining whether the soldier's service had been honest and faithful and upon an approved finding that it had not been, the discharge without honor could have been given. 65, 40, May, 1894.

1170. Section 4 of the act of June 16, 1890, c. 426, authorizes the President, in time of peace, in his discretion and under such rules and upon such conditions as he shall prescribe "to permit any enlisted man to purchase his discharge from the army." Held, that under this section the President could permit a soldier to purchase his discharge, even if his service had not been honest and faithful, but in such event the soldier would forfeit his retained pay, if any. 63, 373, February, 1894.

1171. Discharges are granted under the provisions of paragraphs 144, 145, 146, A. R. of 1895 (155-157 of 1901), by way of favor, upon the R.of application of the soldiers eligible therefor and subject in each case to a waiver of travel allowances (par. 146). Held that this waiver could legally be required; and that the soldier by applying for the discharge consents to such waiver as a condition upon which the discharge will be granted. Card 1862, December, 1895. As the discharge can only be granted by the President or Secretary of War, a department commander has no authority to refuse to forward an application therefor. Card 203, August, 1894.

1172. Held that under paragraphs 2 and 4, G. O. 17, A. G. O., 1893 (A. R. 144 of 1895; 155 of 1901), the period during which application for discharge by purchase may be made is limited to the second year and first half of the third year of the enlistments therein referred to; but the order for such discharge may be issued and the discharge executed subsequently to the termination of such period. Cards 247, July, 1894; 1340, May, 1895.

1173. Sec. 4 of the act of June 16, 1890, provides that moneys paid upon purchase of discharges shall be "deposited in the Treasury to the credit of one or more of the current appropriations for the support of the army, to be indicated by the Secretary of War." Held that under this section the Secretary could change his designation of appropriations from time to time, as to purchase money thereafter accruing, if, in his judgment, such change would be for the interests of the service. 59, 60, April, 1893.

1174. Held that there was no legal authority for the refunding, by the military authorities, of money paid to purchase a discharge under the act of June 16, 1890. This clearly appears from the terms of the

act which provides that the money when paid, "shall be deposited in the Treasury" to the credit of some current appropriation to be designated by the Secretary of War, to be "available for the payment of expenses incurred during the fiscal year in which the discharge is made." The act moreover authorizes the President to permit such purchases "under such rules and upon such conditions as he shall prescribe", and nothing is found in the rules actually prescribed (G. O. 81, 108, of 1890; 48 of 1891; 32 of 1892; or 17 of 1893) which con templates or refers to the refunding of such purchase money. 65, 71, May, 1894.

1175. Where a soldier deposited fifty dollars under the act of May 15, 1872, presumably in anticipation of his application for purchase of discharge, and subsequently while such application was pending deserted, held that said deposit was necessarily unconditional and like any other deposit was forfeited by desertion. Card 807, January, 1895.

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1176. Under the authority of the act of April 14, 1890, c. 80, entitled "an Act for the relief of soldiers and sailors who enlisted or served under assumed names during the war of the rebellion",-held that a son of a slave, originally enlisted under the name of his former master and discharged as such in 1864, might legally have a discharge certificate issued to him in the name of his father, become free since the enlistment. 60, 354, July, 1893.

1177. Sec. 224, Rev. Sts., does not authorize the Secretary of War to issue a duplicate certificate of discharge, to replace one lost, to an officer or soldier who served in the Mexican war, or to one who served in any war other than "the late war against the rebellion." 65, 390, July, 1894.

1178. Where a duplicate certificate, having been furnished, has been lost or destroyed, held that as the statute does not prohibit the issuing of a second certificate, the Secretary of War may, under the power which, as representative of the President is vested in him, issue such second certificate if in his judgment it is proper to do so. Card 3101, April, 1897.

1179. Where a certificate of honorable discharge upon being submitted to the Adjutant General's Office has had its value impaired by an erroneous entry thereon, held that there was no legal objection to an issue by the War Department of a new certificate containing no reference to the erroneous entry. 34, 222, August, 1889; Card 1793. October, 1895.

1180. It is well established that a soldier cannot himself avoid his contract of enlistment on the ground of minority, and abandon at pleasure the military service. His release on this ground can be

obtained only on application of a parent or guardian entitled to his services, and without whose consent he enlisted.' 58, 142, February, 1893. The application of the parent, whether made to the Secretary of War, or on habeas corpus to a U. S. court, must be made before the soldier attains his majority and ratifies his contract. March, 1888; 53, 105, April, 1892; 54, 233, July, 1892.

LV, 440,

1181. Where a soldier otherwise eligible for discharge on the ground of minority at enlistment is held awaiting trial or sentence for desertion or other military offence, or under sentence for the same, an application for his discharge by his parent should not be entertained by the Secretary of War. In such a case the public interests are paramount to the right of the parent. Nor can the parent legally procure his release on habeas corpus. L. 680, August, 1886; 54, 233, July, 1892; 57, 135, December, 1892; 61, 158, August, 1893; 62, 191 November, 1893; Cards 2870, January, 1897; 4244, June, 1898.

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1182. A minor who enlists without the consent of his parent or guardian and procures his enlistment by intentionally concealing the fact that he is a minor, receiving pay and allowances thereunder, may be discharged without honor or held for trial for fraudulent enlistment, or honorably discharged, in the discretion of the Secretary of War. Card 4244, June, 1898.

1183. Where a State court on habeas corpus proceedings ordered that a soldier in the military service of the United States be discharged therefrom, held that as the court was without jurisdiction in the matter its order was absolutely void and without effect as a discharge of the soldier from the service. 32, 313-319, May, 1889; Card 394, September, 1894.

1184. Held that the Secretary of War can not delegate to department commanders the power conferred upon him by the act of March 16, 1896 (29 Stats., 63; G. O. 12, A. G. O., 1896), to discharge enlisted men for disability caused by their own misconduct, with forfeiture of travel allowances. Card 7442, December, 1899.

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1 In re Davison, 21 Fed. Rep., 618; In re Zimmerman, 30 id., 176; In re Cosenow, 37 id., 668; In re Kaufman, 41 id., 875; In re Morrissey, 137 U. S., 157.

2 In re Dohrendorf, 40 Fed. Rep., 148; In re Spencer, id., 149.

In a recent case (In re Carver, 103 Fed. Rep., 624) it was held that the Federal courts will entertain jurisdiction on habeas corpus for the release of a minor, under the age of 21, who is detained in the military service of the United States under enlistment, in violation of Sec. 1117, Rev. Sts., although charges have been filed against the minor by an officer of the army for violation of the act of July 27, 1892, sec. 3, making fraudulent enlistment and the receipt of pay or allowance thereunder punishable by court-martial, if the charges have not been acted upon by the Executive department of the Government.

But what constitutes action on the charges by the Executive department of the Government does not appear to have been argued or specifically passed upon in this case. See, for a citation and discussion of authorities on this subject, G. O. 127, A. G. O.,

* But see G. O. 12, A. G. O., 1900 (A. R., 151 of 1901).

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1185. The act of April 22, 1898, provided that "at the end of any war in which the United States may become involved the army shall be reduced to a peace basis by the honorable discharge or Held that particular law to be discharged.

transfer of supernumerary enlisted men." enlisted men could not claim a right under this The provision is directed to the President and makes it his duty to reduce the army by the means indicated, and of course he, through the officers of the army, will select the men to be discharged. Card 5085, October, 1898. This act further provided that all enlistments for the volunteer army should be for the term of two years unless sooner terminated and that all officers and men composing said army should be discharged when the purposes for which they were called into service shall have been accomplished or on the conclusion of hostilities. Held that this latter provision made it the duty of the President to disband the volunteer army when the occurrences named took place, but did not give individuals the right to claim discharges before the end of the two years for which they enlisted. Cards 4822, August, 1898; 4891, 4897, September, 1898.

1186. G. O. 40, A. G. O. of 1898, provided "that men enlisted or reenlisted during the war may be informed that they will be granted their discharges if desired at the close of the war upon their individual applications." Held that this order simply authorized the discharge on their own application of men who had enlisted during the war, leaving the character of each discharge and the question of travel pay to be determined by the law and regulations on the subject. Card 6569, June, 1899.

1187. Held, that the provisions of par. 148, A. R. (162 of 1901), relating to the appointment of a board of officers to determine the facts in any case in which a soldier considers that injustice will be done him as to the character proposed to be given him on his discharge is directory only and does not affect the validity of an executed discharge, with reference to which the directions of the regulations have not been observed. Card 5943, March, 1899.

1188. By the practice of the War Department, the age of an alleged minor is generally required to be shown by the affidavits of both parents, if living, or by the affidavit of the surviving parent or guardian, supported by the affidavits of at least two other respectable persons cognizant of the fact or by an officially authenticated record of a church or court. If practicable the affidavits should be accompanied by the certificate of a judge of a U. S. or State court acquainted with the parties and vouching for the truth of the representations made. LIII, 53, October, 1886.

1189. Advised that an application of a parent for the discharge of a

minor soldier be denied where it appeared that he had been married, presumably with the parent's consent. By the laws of France, and of Louisiana and some other States, marriage is an emancipation. And if it does not wholly emancipate the minor, it removes him in a measure from the parent's control and gives him a right to his earnings.1 53, 105, April, 1892.

1190. A parent or guardian not domiciled in the United States but in France, held not entitled to the discharge from the military service of a minor enlisted without consent. By such foreign residence the parent or guardian is viewed as having emancipated the child or ward.* 62, 132, October, 1893.

1191. Where an application was made for the discharge, on account of minority, of a soldier born in Bermuda, advised that, in addition to the affidavit of the parent, there be required, as evidence of age, a transcript of the official parish, or other public, register of births, signed by the proper custodian (and sealed if he has a seal); his signature to be certified to as genuine by the U. S. consul. A transcript from the parish record of baptisms (as sent in this case), held insufficient if a register of births exists. 43, 77, September, 1890.

DISCIPLINARY PUNISHMENT OR REPRESSION.

1192. Two soldiers, at a military post, refused to do extra fatigue duty imposed upon them by their captain for failing to make a proper score at target. The captain caused one of them to be tied up by his wrists with his feet partly raised from the ground for some six hours, and the other to be so tied up for about one hour and to be immersed several times in a water-hole. Held that such action was wholly without justification, the punishment inflicted not being sanctioned by law or usage, or warranted by the circumstances of the case, and that the officer was clearly amenable to trial under the 62d Article of War. 60, 257, June, 1893.

1193. A soldier, who had been improperly allowed with others of a detachment to enter a saloon and drink, became disorderly and insubordinate in public, without however committing violence. The captain commanding, in attempting to repress him, assaulted him by striking him on the head with a government rifle with such force as to fell him to the ground and render him senseless, at the same time inflicting a severe contused lacerated wound on his right ear which rendered it deaf for several days. There was nothing like a mutiny and no serious disorder in the command. Held that the violence of the officer was

1See Taunton . Plymouth, 15 Mass., 204.

So held by Attorney-General Cushing, 6 Opins., 607.