Page:Federal Reporter, 1st Series, Volume 4.djvu/523

 m EE DAVISOK. fîO.9^: �years, and that lais enlistment was illegal and voîd, and there- fore that he is not liable to be arrested or held as a deserter; and, secondly, that. more than two years have elapsed sinco the commission of the alleged offence, and before the issuing of an order for his trial, and that therefore he is not legally liable to be arrested and held for trial as a deserter. �1. As to the first ground, it is objected by the respondent that the oath of the petitioner at the time of his enlistment is made conclusive upon him by the statute in this proceed- ing. Such has been held in this court to be the proper con- struction of the statute. In re Cline, 1 Ben. 338; In re Stokes, Id. 341. It is also insisted that the enlistment of a minor over 18 years of age, without the consent of his parents, was not illegal under the laws in force at the time the peti- tioner enlisted. Such has been held to be the law in this court. In re Riley, Id. 408. �It is insisted on the part of the petitioner that more recent decisions to the contrary have been made on both these points, of such weight and authority as to make it proper for thia court to re-examine the questions. Seavey v. Seymour, 3 Cliff. 439; Turnery. Wright, 2 Pittsb. 370, 5 Phil. 296; Heu- derson v. Wright, 2 Pittsb. 440, 5 Phil. 299; Com'rs y.Leake, 8 Phil. 523. It is, however, unnecessary to consider this point, because the other ground for discharging the prisoner is well taken. �2. The one hundred and third ariicle of war (Kev. St. § 1342) provides that "no person shail be liable to be tried and punished by a general court-martial for any offence which appears to have been committed more than two years before the issuing of the order for such trial, unless by reason of having absented himself, or of some other manifest impedi- ment, he shaU not have been amenable to justice within that period." �It is insisted on the part of the respondent that by "ab- sence" is here meant absence from the post of duty, and that this article has no application to desertions. It is certainly a startling proposition that there is no limitation at ail upon prosecution for the offence of desertion; that one who has ����