It is not contended that, if the soldier was twenty-one years of age when he was enlisted, his enlistment was in any manner illegal, but his discharge is sought solely on the ground that he was in fact under twenty-one years of age, and was enlisted without the consent of his parents.
The act of February 13, 1802 (12 Stat. 339, § 2), provides, that “the oath of enlistment taken by the recruit shall be conclusive as to his age.” It is as conclusive and binding upon this court as it is upon the recruit or upon the United States. The intent of congress manifestly was, that no evidence should be received to contradict a statement as to the age of the recruit, contained in the oath taken by him on his enlistment This view of the act of 1802 was taken by Judge Daly, in the case of George Reilly, in the court of common pleas, in the city of New York, in March, 1867, and also by my predecessor, Judge Betts, in January, 1867, in the cases of Michael J. Conley and John Jump. I am. entirely satisfied that the view is a sound one. In the present case Cline swore, in his oath of enlistment, that he was then twenty-two years of age. That oath is conclusive that he was not then a minor, and no evidence is admissible to show that he was.
An objection is taken to the validity of the enlistment of Cline, on the ground that the act of June 12, 1SDS, section three, does not authorize an officer of the army to administer the oath of enlistment to a recruit unless the services of a civil magistrate authorized to administer the same cannot be obtained; that the act of August 3, 1S31, section eleven, does not authorize an officer of the army to administer an oath of allegiance, unless it appears that he could not obtain the attendance of a civil officer authorized by law to administer oaths; and that the return should show that the attendance of such civil officer could not bo obtained. It is a sufficient answer to this objection to say, that the presumption is in favor of the regularity of the proceeding, when it appears that the oath was administered by the military officer, and that, in such case, the intendment is, that the services of a civil magistrate could not be obtained, and the burden is upon the recruit to show that such services could be obtained, and not upon the United States to show that they could not be obtained. In this case, nothing appeal’s on the subject except what is shown on the face of the enlistment papers. The enlistment of Oline was, in all respects, regular, and he must be remanded to service under his proper military officer.