This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
The statutes of the United States allow minors over sixteen to enlist in the army if the parent or guardian consents to such enlistment. This clearly recognizes the capacity of the minor to bind himself by a contract of enlistment.1 The practical question arising most often under these statutes is whether in cases of enlistment without such written consent the infant can himself avoid the contract. The better line of authorities holds that he cannot, and that the privilege of avoiding the contract belongs to the parent or guardian; accordingly if he deserts, this does not avoid the contract and he may be punished therefor.2 Other authorities hold that the minor may avoid such contract without being punished for desertion,3 and that he may avoid it either before or after he arrives at majority.4 In any event, one appointed guardian after the enlistment of a minor cannot give the written consent required by statute,5 while the delay of a father who does not by habeas corpus procure the discharge of his son who was enlisted in the navy under the age of eighteen, before that age, does not validate the enlistment.6 Whether the same rules on this point apply to the volunteer service as to the regular army is in dispute.7 It has been held, under different statutes, that in the navy, a minor over eighteen, enlisting without consent of parent or guardian cannot be discharged on habeas corpus on suit of the parent.8
1 Morrissey v. Perry, 137 U. S. 157; In re Dowd, 90 Fed. 718; Solomon v. Davenport, 87 Fed. 318; Lanahan v. Birge, 30 Conn. 438; Ex parte Anderson, 16 la. 595; In re Graham, 8 Jones (N. C.) 416; Commonwealth v. Gamble, 11 Serg. & R. (Pa.) 93; In re Tarble, 25 Wis. 390; 3 Am. Rep. 85.
2 Morrissey v. Perry, 137 U. S. 157; In re Dowd, 90 Fed. 718; Solomon v. Davenport, 87 Fed. 318; In re Kaufman, 41 Fed. 876; In re Cosenow, 37 Fed. 668: In re Zimmerman, 30 Fed. 176; Ex parte Anderson, 16 la. 595; In re Graham, 8 Jones L. (N. C.) 416; Commonwealth v. Gamble, 11 Serg. & R. (Pa.) 93; United States v. Blak-eney, 3 Gratt. (Va.) 405.
3 United States v. Hanchett, 18 Fed. 26; In re Davison, 21 Fed. 618; In re Baker, 23 Fed. 30; In re Chapman. 37 Fed. 327; 2 L. R. A. 332; In re Von Dieselskie, 5 Mack. (D. C.) 485; Commonwealth v. Fox, 7 Pa. St. 336.
4In re Chapman, 37 Fed. 327; 2 L. R. A. 332.
5 In re Perrone, 89 Fed. 150.
6 In re Falconer, 91 Fed. 649.
7 That they do, In re Burns, 87 Fed. 796. Contra, Lanahan v. Birge, 30 Conn. 438.