UC-NRLF 
 
 B 3 IID 321 
 
 MlIE ■ AEMY BEG-ULATIONS 
 
 AND 
 
 EXECUTIVE JffiGUUTlONS IN GENERi^l 
 
 X^IEBBPt 
 
LIBRARY 
 
 OF THE 
 
 University of California. 
 
 Received 
 
 LUAX^ 
 
 Accession hJo. y^/ 6 y Z. . CLus No. 
 
REMARKS 
 
 The Army Regulations 
 
 EXECUTIVE REGriATIOXS IN GENERAL. 
 
 G. NORMAN LIEBER, 
 
 JUDGE-ADVOCATE GENERAL, 
 U. S. ARMY. 
 
 WASHINGTON: 
 
 Government Printing Office. 
 

 7/4/z. 
 
 WAR DEPARTMENT. 
 
 Document No. 63. 
 
 Office of the Judge-Advocate Genebal. 
 
TABLE OF CONTENTS. 
 
 CHAPTER I. 
 
 Pago. 
 
 Classification and Source of Authority of Army 
 Regulations ^ 
 
 CHAPTER II. 
 Executive Regulations in General 3l 
 
 CHAPTER III. ■' 
 Approval of Regulations by Congress 51 
 
 CHAPTER IV. 
 The Different Editions of Army Regulations. 61 
 
 CHAPTER V. 
 
 The Interpretation and Construction of Regula- 
 tions 85 
 
 Appendix A.— Letter of the Secretary of War with regard 
 to General Order No. 32, Adjutant-General's Office, 1873- 103 
 
 Appendix B.— Extract from the Judge- Advocate General's 
 remarks on revocable licenses 131 
 
 Appendix C— Opinion of Hon. J. M. Dickinson with refer- 
 ence to the constitutionality of the act of Congress giving 
 the Secretary of "War powers in regard to obstructions to 
 navigation 139 
 
 Appendix D.— Extract from the Regulations for the Rev- 
 enue-Cutter Service 139 
 
 (3) 
 
4 
 
 Page. 
 
 Appendix E.— Explanation of General Scott with reference 
 to the Amiy Regulations of 1831 145 
 
 Appendix F. — Letter of Secretary of War Belknap, accom- 
 panying proposed regulations of 1873 149 
 
 Appendix G. — Report of Military Committee of the House 
 of Representatives, Forty-third Congress, first session, on 
 " Revised Army Regulations " 151 
 
 Appendix H. — Letter of General Schofield in regard to pro- 
 posed regulations of 1876 185 
 
 Appendix I. — Remarks of Secretary of War McCrary in his 
 
 annual report of 1877 187 
 
CHAPTER L 
 
 CLASSIFICATION AND SOURCE OF AUTHORITY OF 
 ARMY REGULATIONS. 
 
 The words regulate and regulation are used in several 
 places in tlie Constitution of the United States. Thus, 
 Congress has power to " regulate " commerce, to "reg- 
 ulate" the value of money, to make rules for the gov- 
 ernment and "regulation" of the land and naval forces, 
 to make "regulations" with regard to the elections of 
 Senators and Representatives, to make "regulations" 
 with reference to the jurisdiction of the Supreme Court 
 in certain cases, and to make needful rules and "reg- 
 ulations" respecting the territory and other property 
 of the United States. In all these cases regulation is 
 
 legislation. 
 
 By virtue of its power to make rules and regula- 
 tions for the land and naval forces, Congress covers a 
 laro-e field of legislation relating to the administration 
 of military aflPairs. When this is done, there, how- 
 ever, remains a mass of matters appertaining to the 
 militarv establishment, which it is necessary to ' 'regu- 
 late " legislation can not enter into all the details of 
 this regulation, and, if it could, it would not be desir- 
 able, because a legislative code, controlling the whole 
 subject of military administration, would not have 
 the necessary elasticity. The Constitution provides 
 a way of supplementing this power of Congress, the 
 President, as Executive and Commander-in-Chief of 
 
 (6) 
 
6 
 
 the Army, having the power to make regulations for 
 its government.' 
 
 The regulations for the transaction of the public 
 duties and business relating to the military establish- 
 ment, adopted by the President in the exercise of this 
 power, are designated as the Army Regulations. They 
 may be divided into several classes, viz : 
 
 1. Those which have received the sanction of Con- 
 gress. These cannot be altered, nor can exceptions 
 to them be made, by the executive authority, unless 
 the regulations themselves provide for it. In reality, 
 the approval of Congress makes them legislative 
 regulations, and they might therefore be more strictly 
 classified with other statutory regulations with refer- 
 ence to subjects of military administration. They 
 are, however, included under the general head of 
 Army Regulations, as approved codes of executive 
 regulations. Examples of regulations having this 
 sanction are given post. 
 
 2. Those that are made pursuant to, or in execution 
 of, a statute — meaning by the latter expression, those 
 that are supplemental to particular statutes, and, in 
 
 ' "Regulations are administrative rules or directions as distin- 
 guished from enactments. They exist in all the Executive De- 
 partments and are of very material service in the efficient admin- 
 istration of the Government. Army regulations are authorita- 
 tive directions as to the details of military duty and discipline. 
 The aiithority for Army regulations is to be f ound'in the distinctive 
 functions of the President as Commander in Chief and as Execu- 
 tive. His function as Commander in Chief authorizes him to 
 issue, personally or through his military subordinates, such or- 
 ders and directions as are necessary and proper to insure order 
 and discipline in the Army. His function as Executive empowers 
 him, personally or through the Secretary of War, to prescribe 
 rules, where requisite, for the due execiition of the statutes re- 
 lating to the military establishment. " (Winthrop's Abridgment 
 of Military Law, p. 8. ) 
 
the cabsence of sufficient legislative regulation, pre- 
 scribe means for carrying them out. These, if it be 
 not prohibited by the statute, may be modified by the 
 executive authority,' but until this is done they are 
 binding as well on the authority that made them as 
 on others. It has been held that a regulation of the 
 Treasury Department, made in pursuance of an act of 
 Congress, "becomes a part of the law, and of as bind- 
 ing force as if incorporated in the body of the act 
 itself. '" So it has been held that the civil service rules, 
 promulgated under the Civil Service Act, "became a 
 part of the law," and that removal from a position 
 placed under the act and the rules can only be made 
 agreeably to the terms and provisions of both the act 
 and the rules, =" and an Army regulation made pursuant 
 
 1 "The power to establish implies, necessarily the power to 
 modify or ?epeal, or to create anew. " (United States v. Eliason, 
 
 16 Pet, 302.) „ . ^ -,A1Q 
 
 •2 United States v. Barrows, 1 Abbott, 351 ; 34 Fed. Cases, 1018. 
 3 Bntler v White, 83 Fed. Rep. , 578. See also United States v. 
 Wade ^^Fecl Rep, 261; Boody r. United States 3 Fed. Cases. 
 860 United States r Webster, 28 Fed. Cases, 509, A len t^. Colby 
 47 N H 544 • The Thomas Gibbons, 8 Cr. , 421 ; Parker v United 
 States IP 293 297; United States r. Freeman, 25 Fed Cases, 
 ini Lockinston-s Case, Bright, 269 ; Low v. Hanson, 72 Me 104 ; 
 United StaTeT' Williams, 6 Mont., 379; .Cal- ^^ United S^aes, 
 15'^ TT S 211 221 Bnt as to the conclusion m Bntlei r. White 
 irregard to removals from office under the civil service act and 
 
 "Bl'acTJf"on|res; o? March 1, 1823, it was prescribed, " That 
 
 if Sy persons shall swear or affirm falsely, touching the expend^ 
 
 tuie of public money, or in support of any claim against the 
 
 United States, he or she shall, ^^PO^^^^^^^^VSatfJlfe lunreme 
 for willful and corrupt per.iury. It was held by the Supieme 
 Court that under this legislation, the Sef'etary of the Tiejiry 
 had the power to make a regulation authorizing ni^sticeh ot the 
 peace of slates to administer oaths to affidavits m support of 
 Ss, and that perjnry might be assigned on an affidavit so 
 taken, (United States r. Bailey, 9 Pet., 238). And see uniteu 
 States V. Breen, 40 Fed. Rep., 402. 
 
8 
 
 to a provision contained in an act of Congress is of the 
 same force. Examples of regulations of this class are 
 those relating to the examination of enlisted men for 
 commissions, under the act of Congress of Jnly 30, 
 1892, and the Executive order of March 30, 1898, pre- 
 scribing limits of punishment. 
 
 3. Those emanating from, and depending on, the 
 
 Such regulations must of course be consistent with the law, 
 as is pointed out in the follownng extract from a report of the 
 Jiidge -Advocate G-eneral's Office, dated November 22, 1888. 
 
 "Paragraph 2454, Army Regulations of 1881, was first promul- 
 gated by direction of the Secretary of War on June 22, 1872, in 
 General Orders No. 51, A. Gr. O. These orders prescribed rules 
 for the execution of the provisions of the act of Congress approved 
 May 15, 1872 (17 Stat., 116), now embraced in sections 1280- 
 1284, Revised Statutes. Although this statute was silent as to 
 the execution of the details of its provisions, yet as the execution 
 thereof, from the nature of the enactment, required to be specifi- 
 cally methodized, the authority for prescribing rules to effec- 
 tuate the objects of the law resulted by legal implication in 
 connection with the constitiitional duty of the executive depart- 
 ment to ' take care that the laws be faithfully executed. ' (1 Win- 
 throp, 19; McCall's Case, 2 Phila., 269; 10 Wheat., 42; 7 Pet., 2; 
 9 id., 238; 1 Pet., C. C, 471 ; 1 W. & M., 164; 11 Mich., 298; 16 
 Wis., 423 ; 5 Phila., 287; 47 N. H., 544; Cooley's Principles Con- 
 stitutional Law, 44 ; 1 Opin. Atty. Gen., 478 ; 2 id., 225, 243-245, 
 421 ; 4 id., 225, 227; 6 id., 365; 16 id., 39.) 
 
 "It is obvious that the regulations under discussion were 
 made in aid of the law cited and therefore belong to the class 
 of regulations termed by the Court of Claims in its opinion, 
 heretofore mentioned, as ' supplementary to the statutes which 
 have been enacted by Congi-ess in reference to the Army. ' But 
 in order that such regulations shall have the force of law, they 
 must, under the authorities cited, be consistent with the statute 
 in aid of which they were made. 
 
 ' ' It will appear from the report of this office of October 9, 
 1888, that ijaragraph 2454, Army Regulations of 1881, was origi- 
 nally issued under a misapprehension of the intent and effect of 
 the provisions of the act of Congress approved May 15, 1872 
 (sec. 1280-1284, Rev. Stat.). To make this paragraph consistent 
 with the statute a project for an amendment was submitted and 
 substantially adopted by the Secretary of War by the publica- 
 tion of General Orders No. 95, of November 10, 1888, amending 
 Army Regulation, 2454. " 
 
 See also Dig. Opin. Judge-Advocate General, 168. 
 
9 
 
 constitutional authority of the President as Com- 
 mander-in-Chief of the Army and as Executive, and 
 not made in supplement to particular statutes. These 
 constitute the greater part of the Army regulations. 
 They are not only modified at will by the President, 
 but exemptions from particular regulations are given 
 in exceptional cases ; the exercise of this power with 
 reference to them being found necessary. "The au- 
 thority which makes them (regulations) can modify 
 or suspend them as to any case, or class of cases, or 
 generally."' 
 
 1 5 Dec. First Comptroller, 29, and see art. 1 of Circ. No. 4, 1897, 
 A. G. O. ; Circ. No. 2, 1885; United States v. Eliason, 16 Pet, 302; 
 Davis's Military Laws, 146, and Military Law, 6; 3 Dec. Comp. 
 Treas., 305; Smith v. United States, 24 Ct. Cls., 209; Arthur v. 
 LTnited States, 16 Ct. Cls., 422; Opin. Judge -Advocate General, 
 March 5, 1896, concurred in by the War Department (2074). 
 
 The following is an extract from the opinion last cited : 
 
 ' ' Regulations may be divided into different classes with respect 
 to this question. There are, or may be, those which have re- 
 ceived the sanction of Congress, and it is evident that the Secre- 
 tary of War would have no authority to make an exception to 
 one of these. There are also those that are made piirsuant to 
 and in aid of a statute. These may be modified, but, until this 
 is done, are binding as well on the authority that made them as 
 on others. (United States v. Barrows, 1 Abbott, 351). There is 
 also a large body of other regulations emanating from, and de- 
 pending solely on the authority of the President as Commander 
 in Chief. With reference to such regulations, it has, I believe, 
 been sometimes claimed that the same rule should be applied that 
 is api)lied to the regulations made piirsuant to statute. But this 
 has not been done in practice, and I do not think that it should be 
 done, for the reason that it would seem to be an unnecessary, 
 embarrassing, and perhaps unconstitutional limitation of the 
 authority of the President as Commander in Chief. To exempt 
 from compliance ^vith a particular regulation in an exceptional 
 case would seem to be a lawful exercise of that authority." 
 
 In United States v. Burns, 12 Wall., 24(5, the Supreme Court 
 held with reference to an Army regulation, prohibiting persons 
 in the military service from making contracts for supplies, etc. , 
 with other persons in the military service, that the regulation 
 did not apply to contracts on behalf of the United States, which 
 required for their validity the approval of the Secretary of War ; 
 
10 
 
 To which are sometimes added : 
 
 4. Departmental regulations, made by virtue of the 
 authority conferred by section 101, Revised Statutes, 
 on the head of each Department ' ' to prescribe regula- 
 tions not inconsistent with law, for the government of 
 his Department, the conduct of its officers and clerks, 
 the distribution and performance of its business, and 
 the custody, use, and preservation of its records, pa- 
 pers, and property apijertaining thereto." ' 
 
 Mere repetitions of legislative enactments are not 
 included under any of these heads. 
 
 A long continued practice has been held equivalent 
 to a specific regulation." 
 
 that tliouf^h contracts of that character are usually negotiated 
 by subordinate officers or agents of the Government, they are in 
 fact and in law the acts of the Secretary, whose sanction is essen- 
 tial to bind the United States ; and that the Secretary, though 
 the head of the War Department, is not in the military service 
 in the sense of the regxilation, but, on the contrary, is a civil 
 officer with civil duties to perform, as much as the head of any 
 other of the Executive Departments. This decision is sometimes 
 referred to as sustaining the view that Army regulations are not 
 in any case binding on the authority that makes them, whereas 
 all that was held is that the regulation in question was not 
 intended to restrain the Secretary of War. (See the case of 
 Smith V. United States, 34 Ct. Cls., 209.) 
 
 ' Section 1059, Revised Statutes, vests the Court of Claims with 
 jurisdiction to hear and determine claims founded upon any reg- 
 ulation of an Executive Department, which the court has con- 
 strued as meaning any regulation within the lawful discretion 
 of the head of an Executive Department. (20 Ct. Cls., 199.) 
 
 See also act of March 3, 1SH7, "to provide for the bringing of 
 suits against the Government of the United States." 
 
 ■■^United States v. Macdaniel, 7 Pet., 1 ; United States v. Web- 
 ster, 28 Fed. Cases, 515; 3 Dec. Comp. Treas., 316. 
 
 See also Martin v. Mott, 12 W. 19, and United States v. Bab- 
 cock, 24 Fed. Cases, 928. 
 
 "A regulation is a rule. It may be written, and no reason is 
 perceived why it may not exist in parol or by usage. " (Decision 
 First Comptroller, Vol. V, p. 311.) The "ciistom of war," that 
 is to say, the custom of the service, is recognized l)y the eighty- 
 fourth Article of War as being a ijart of the law military. 
 
11 
 
 As to the subject-matter of regulations for the gov- 
 ernment of the Army, no distinct line can be drawn 
 
 But usage can not be relied on in justification of an act forbidden 
 by express law. (Walker r. The Transportation Company, 3 
 Wall.. 150: Clark's Browaie on Usages and Customs, p. 27, note; 
 27 Am. and Eng. Enc. of Law, 798. ) A noticeable in.stance of the 
 disregard of this principle is to be found in a work on ' ' The Mili- 
 tary Law of England," piiblished in London in 1810, in which, 
 after stating the law relating to duelling, as containeu in the 
 Articles of War. it is said that "there are cases in which, not- 
 withstanding the exi:)licit declarations of the written law. the 
 custom i)f the service would seem to demand a reference to arms, " 
 and, accordingly, "General Rules and Instructions for Seconds 
 in Duels" are given. 
 
 ' 'A usage or custom, at military law. must consist of a fixed 
 and uniform practice of long standing, which is not in conflict 
 with exi.sting statute law or regulation. A custom of the serAnce 
 can not be establi.shed by proof of isolated or occasional instances, 
 but must be built up out of a series of precedents. It must also 
 be a usage of the Anny, or of some separate and distinct branch 
 of the military establishment. Moreover, no illegal or unauthor- 
 ized practice, however frequent or long continued, can make a 
 usage."" (Winthrop"s Abridgment of Military Law, p. 14.) 
 
 In connection ^\'ith the above classification of Armv regula- 
 tions, see the decision of the Court of Claims in Maj.' William 
 Smith"s Case, 23 Ct. Cls. , 452. in which the court said : 
 
 ' ■ The Con.stitution provides, in Article I, section 8, paragraph 
 14, that Congress shall have power 'to make rales for the gov- 
 ernment and regulation of the land and naval forces. ' 
 
 • • It has been argued here and elsewhere that this pro%asion 
 deprives the President of authority to make such rales of his own 
 motion, or even when previously authorized by legislative action, 
 on the ground that the power is exclusive in Congress and can 
 not be delegated : and so that all rules for the government and 
 regulation of the land and naval forces made by the Executive 
 are void and of no effect ^vithout the enactment by Congress in 
 the form of approval or otherwise. 
 
 • • Congress has established rules and articles for the govern- 
 ment of the armies of the L'nited States, commonlv called Arti- 
 cles of War' (act of April 10, 1806, chapter 20, 2 Stat. L., 359, now 
 Rev. Stat., sec. 1342). 
 
 ' ' For the making of other and ordinary regulations Congress 
 has from an early day proceeded upon the idea that the power 
 might be delegated to the President, and has passed several acts 
 expre.ssly confen-ing such authoritv (act of March 3, 1.S13, chap- 
 ter 52, section 5 (2 Stat. L.. 819): act of April 24, 1816. chapter 
 69, section 9 (3 Stat. L., 298) : act Julv 15, 1870, chapter 294. sec- 
 tion 20 (16 Stat. L., 319) : act of Marcli 1, 1875, chapter 115 (Supp. 
 
12 
 
 separating tlie President's constitntional power to 
 make them from the constitutional power of Congress 
 
 Rev. Stat., 149), and the act of June 33, 1879, chapter 35, section 
 2 (Supp. Rev. Stat., 494), under vs^hich the edition of 1881 was 
 published. ) 
 
 "Congi-ess has three times recognized or approved existing 
 regulations : 
 
 onoN^- ^^^^- ^*^* °^ ^P"^ ^"^- ^^^^'' chapter 69, section 9 (3 Stat. L., 
 398) , provided that ' the regulations in force before the reduction 
 of the Army be recognized, as far as the same shall be found 
 applicable to the service, subject, however, to such alterations 
 as the Secretary of War may adopt, with the approbation of the 
 President. ' 
 
 "3. The act of March 3, 1821, chapter 13, section 14 (3 Stat. L., 
 616), enacted 'that the system of "general regulations for the 
 Army" compiled by Major-General Scott shall be, and the same 
 IS herel^y, approved and adopted for the government of the Anny 
 of the United States and of the militia, when in the service of the 
 United States. ' This section was unconditionally repealed by the 
 act of May 7, 1822, chapter 88 (3 Stat.L., 686). As to this act 
 Attorney General Wirt advised that, notwithstanding such re- 
 peal, the regulations having received the sanction of the Presi- 
 dent, continued in force by the authority of the President in all 
 cases where they did not conflict with positive legislation (1 
 Opin., 549). 
 
 "3. The act of July 28, 1866, chapter 299, section 37 (14 Stat 
 L. , 337, 338) , required the Secretary of War to prepare a code of 
 regulations for the government of the Army, and enacted ' the 
 existing regulations to remain in force until Congress shall have 
 acted on said report. ' No such action has been taken. 
 
 "It is well settled that Army regulations when directly ap- 
 proved by Congress have the absolute force of law equally with 
 other legislative acts until repealed by the same power. Con- 
 gress so treated them when it passed the act of June 8, 1873 
 chapter 348 (17 Stat. L., 337), providing that the fifth section of 
 the act of May 8, 1872 (17 Stat. L., 83), should not be held to 
 repeal that part of paragraph 1030 of the Revised Army Regula- 
 tions of 1863 with which it appeared to be in conflict, thus recog- 
 nizing the regulations approved by Congress in that year as 
 having the same force as Congressional enactments. 
 
 "On the other hand, it is just as well .settled that regulations 
 not so approved have the force of law only when founded on the 
 President's constitutional powers as Commander in Chief of the 
 Army, or are 'consistent with and supplementary to the statutes 
 which have been enacted by Congress in reference to the Army ' 
 (Symond's Case, 120 U.S., 46, affirming 21 Ct. Cls., 151; Reed's 
 Case, 100 U. S., 32; Smith t>. Whitney, 116 id., 180; United States 
 V. Whitney, 120 id., 47; Wayman v. Southard, 10 Wheat., 43; 
 
13 
 
 "to make rules for the government and regulation" 
 of the land forces. Regulations are, when they relate 
 
 United States r.Eliason, 16 Pet., 291; United States v. Freeman, 
 3 How., 556; Kurtz r. Moffitt, 115 U. S., 508; United States v. 
 Webster, 3 Ware, 66; United States v. Maurice, 2 Brock, 108; 
 Ferreu's Case, 8 Benedict, 447 ; Gates v. Fletcher, 1 Minn. , 204 ; 
 1 Opin. Atty. Gen., 469, 547; 2 id., 225; 8 id., 85; 6 id., 10, 215, 
 365; 10 id., 415; 16icZ., 38.) 
 
 "Whether a regiilation, the validity of which is drawn in 
 question, is within the constitutional power of the President to 
 proniiilgate, or whether it has been approved by Congress, or 
 whether it ' is consistent with and supplementary to the statutes,' 
 are judicial questions not always free from difficulties of deter- 
 mination. 
 
 "In the light of these views and the adjudicated cases we shall 
 examine the existing regulations. 
 
 "The present regulations are contained in the edition of 1881, 
 published under authority of the act of March 1, 1875, chapter 
 115 (Supp. Rev. Stat. , 149) , which directs the President ' to make 
 and publish regulations for the govermnent of the Army in ac- 
 cordance with exi.sting laws,' and under the act of June 28, 1879, 
 chapter 85, section 2 (Supp. Rev. Stat., 494), which further directs 
 the President to ■ cause all the regulations of the Army and gen- 
 eral orders now in force to be codified and published to the Anny , ' 
 and provides for the exi:)enses of the work. 
 
 ' ' As promulgated in this edition they contain orders and regu- 
 lations of four different classes intermingled. At the end of each 
 the earlier authority for it is specified by a note in brackets. 
 
 "1. General orders which he (the President) has a right to 
 issue under his constitutional prerogative of ' Commander in 
 Chief of the Army and Navy of the United States.' (Constitu- 
 tion, Art. II, sec. 2, par. 1.) 
 
 "2. Departmental regulations, under section 161, Revised 
 Statutes, authorizing the head of each Department to ' prescribe 
 regulations, not inconsistent with law, for the govenmient of his 
 Department, the conduct of officers and clerks, the distribution 
 and performance of its business, and the custody, iise, and preser- 
 vation of its records, papers, and property appertaining thereto. ' 
 
 ' ' 3. Regiilations not approved by Congress, biit made by the 
 President in the exercise of legislative authority conferred by the 
 acts above cited. 
 
 "4. Regulations expressly approved by Congress." 
 
 The executive regulations of the British military administra- 
 tion consist, principally, of the Rules of Procedure, the Queen's 
 Regulations, Royal Warrants, and Orders in Coimcil. The Rules 
 of Procedure are authorized by the Anny Act, and prescribe the 
 regulations for the fonnatiou of military courts, the trial of 
 
14 
 
 to subjects witliiu the constitutional jurisdiction of 
 Congress, unquestionably of a legislative character, 
 
 offenders, and the execution of sentences; the Queen's Regula- 
 tions relate to the interior economy of cortjs, the maintenance of 
 discipline, and the powers and duties of commanding officers, and 
 supplement the Army Act as to offences against enlistment and 
 the disposal of prisoners : Royal Warrants prescribe the perma 
 nent regiilations as to the government, discipline, pay. promotion, 
 and conditions of ser^-ice ; and Orders in Council are regulations 
 made by the Crown with the advice of the Privy Council, in 
 regard to matters of great importance, such as the duties of the 
 military when on board public ships, the duties of the office of 
 commander-in-chief and other great military offices, etc. Royal 
 Wan-ants. General Orders (affecting duty, discipline, and general 
 efficiency), and amendments of the Queen's Regulations, are pub- 
 lished in Army Orders. Besides the above there are separate 
 regulations for the Militia. Yeomanry, and Volunteer Forces. 
 (Pratt's Military Law. London, 1S9'2: Gunter's Outlines of Mili- 
 tary Law, is9r.) 
 
 L'ntil toward the close of the last century there appears to have 
 been no authorized system of general army regulations in exi.st- 
 ence in England, each colonel having his own standing orders for 
 the discipline and exercise of the regiment, so that "• there was 
 not any standard of uniformity or of efficiency by which progress 
 in the military art could be tested." (Clode's Militarv and Mar- 
 tial Law, 2d ed., p. 55.) In 1788 "A Collection of Regulations 
 and Orders " was issued, and this seems to have been the first 
 authoritative issiie of such a system. The war office regulations 
 were collected and issiied in 1807, and the " General Regulations 
 and Orders for the Anny, Adjutant General's Office, Horse 
 Guards," in 1811. A collection of army regulations by Thomas 
 Simes was published in 1772. under the "title, •'The' Military 
 Guide for Young Officers." but this publication had no official 
 sanction. 
 
 By the term "system of army regulations " is meant an author- 
 ized publication, such as our Amiy Regulations, consisting of 
 general rules, made by the executive authority, for the govera- 
 ment, interior economy, and instruction of tlie army, and the 
 administration of its affairs. The most noted executive regula- 
 tions of the British military service, which, ^^^thin a less compre- 
 hensive, but most important field, were indeed a very complete 
 system, were the Articles of War, which, before the enactment 
 of the ai-niy discipline act of 1879, constituted, together with the 
 mutiny act, the code of discipline by which the British army was 
 governed. The sovereign still has (under the Army Act) power 
 to make Articles of War, but, owing to the elaborateness of the 
 statutory code, it is regarded as improbable that the exercise of 
 this power, for the purpose of prescribing the punishments for 
 
15 
 
 aud if it -were practicable for Congress completely to 
 regulate the methods of military admiuistratiou, it 
 might, under the Constitntion, do so. But it is 
 
 militarj- offences, will ever again be necessary. For a short, 
 but very good, sketch of the history of this law-making by pre- 
 rogative and by executive regulation authorized by statute, see 
 Encyclopedia Britanuica. title "Military Law." In 1686 a work 
 entitled "An Abridgment of the English Military Discipline ' 
 was published. It consisted priucijially of drill regulations, but 
 also related to encamping, garrisons, g-nards. and " • councels of 
 war or courts-martial. ' Some interesting regulations of the time 
 of Queen Anne, recently discovered in the record office of the 
 British Museiim. are pubKshed in the Joiuiial of the Military 
 Sers"ice Institution for Xovember. 1S97. 
 
 The Rules of Procedure are authorized by the Army Act. in the 
 following teiTus ; 
 
 ■'1. Subject to the provisions of this act Her Majesty may. by 
 rules to be signified under the hand of a secretary of state, from 
 time to time make, and when made rei.>eal. alter, or add to. pro- 
 visions in respect of the following matters or any of them : that 
 is to say, 
 
 (a) The assembly and procedure of courts of inquiry; 
 
 (6) The convening and constituting of courts-martial: 
 
 (e) The adjourament. dissolution, and sittings of courts- 
 martial : 
 
 (d) The procedure to be observeii in trials by coiut-martial : 
 
 (e) The confirmation and revision of the findings and sentences 
 of courts-martial ; and enabling the authority having power under 
 section o7 of this act to commute sentences to substitute a valid 
 sentence for an invalid sentence of a court-martial : 
 
 (/) The carrying into effect sentences of courts-martial: 
 
 (gj The forms of orders to be made under the jirovisions of this 
 act relating to cotirts-maitial. i>enal servitude, or imprisoiunent : 
 
 (/i) Any matter in this act directed to be prescribed: 
 
 ( Any other matter or thing ex^iedient or necessary for the 
 purpose of carrj-ing this act into execution so far as relates to the 
 investigation, trial, and punishment of offenses triable or pun- 
 ishable by military law : 
 
 ■ ' 2. Provided always, that no such rules shall contain anything 
 contrary to or inconsistent with the provisions of this act." 
 
 '•3. All rules made in pxirsiiance of this section shall be jndi- 
 ciaDy noticed. 
 
 "4. All rules made in pursuance of this .-section shall belaid 
 before Parliament as soon as practicable after they are made, if 
 Parliament be then sitting, and if Parliament be not then sitting, 
 as soon as practicable after the beginning of the then next session 
 of Parliament. "" 
 
16 
 
 entirely impracticable, and therefore it is in a great 
 measure left to the President to do it. So far as Con- 
 gress chooses to exercise its jurisdiction in this respect 
 it occupies the field, and the President can not encroach 
 on it. ' But when it does not see fit to do so, the Presi- 
 dent's power is of necessity called into action. It is, 
 indeed, of the commonest occurrence for Congress to 
 regulate a subject in i^art and for the Executive to 
 regulate some remaining part, and this without any 
 pretense of statutory authority, but upon the broad 
 basis of constitutional power. We thus have a legis- 
 lative jurisdiction and, subject to it, an executive 
 jurisdiction extending over the same matter. " It could 
 not be otherwise. Congress can not regulate all the 
 details for the execution of all the laws, and the 
 authority charged with their execution must therefore 
 come to its aid.^ 
 
 ' 2 Opin. Atty. Gen., 231 ; 6 id., 10, 215. 
 
 '' The Wai' Department has recognized this by its api)roval of 
 the following views ; ' ' The issne of duplicate discharges, or cer- 
 tificates in lieu of lost discharges, is a matter over which both 
 Congress and the President have control, the former by virtue 
 of the power ' to make rules for the government and regulation 
 of the land and naval forces,' and the latter by virtue of his 
 power as Executive and Commander in Chief. The power of 
 Congress is, however, the superior power, and therefore nothing 
 in conflict Avith any regulation on the subject made by Congress 
 can legally be prescribed by the President, but the fact that Con- 
 gress has made a regulation partly covering the subject does not 
 take away from the President his power to make a regulation 
 relating to the part not covered." 
 
 "Winthrop's Military Law, p. 20, note: 
 
 "If it is difficult, " says Judge Cooley, ' ' to point out the precise 
 boundary which separates legislative from judicial duties, it is 
 still more difficult to discriminate, in particular cases, between 
 what is properly legislative and what is properly executive duty. 
 The authority that makes the laws has large discretion in deter- 
 mining the means through which they shall be executed ; and 
 the perfonaiance of many diities which they may provide for by 
 law they may refer either to the chief executive of the State, or, 
 
ir 
 
 St), also, as between the legislative and judicial 
 powers, Congress may regula,te the procedure of the 
 Federal courts, but in so far as it does not do it the 
 courts may prescribe their own regulations. And 
 this is in fact the existing condition. Congress has 
 exercised the power in i^art, leaving it to the courts 
 to regulate what it has not provided for. Courts can 
 not exercise their jurisdiction without rules of proce- 
 dure, and necessarily have the original power of 
 adopting their own when the legislature does not pre- 
 scribe them; just as the President can not exercise 
 
 at their option, to any other executive or ministerial officer, or 
 even to a person specially named for the duty. What can be 
 definitely said on this subject is this : That such powers as are 
 specially conferred by the constitution upon the governor, or upon 
 any other specified officer, the legislature can not reqiiire or 
 authorize to be performed by any other officer or authority ; and 
 from those duties which the constitution reiiuires of him he can 
 not be excused by law. But other powers or duties the executive 
 can not exercise or assume except by legislative authority, and 
 the power which in its discretion it confers it may also in its dis- 
 cretion withhold, or confide to other hands. Whether in those 
 cases where power is given by the constitution to the governor, 
 the legislature have the same authority to make rules for the 
 exercise of the power that they have to make rules to govern the 
 proceedings in the courts, may perhaps be a question. It would 
 seem that this must depend generally upon the nature of the 
 power, and upon the qiiestion whether the constitution, in con- 
 ferring it. has furnished a sufficient rule for its exercise. Where 
 complete power to pardon is conferred iii)on the executive, it may 
 be doubted if the legislature can impose restrictions under the 
 name of rules or regulations; but where the governor is made 
 commander in chief of the military forces of the State, it is 
 obvious that his authority must be exercised under such proper 
 iTiles as the legislature may prescribe, because the military forces 
 are themselves under the control of the legislature, and military 
 law is prescribed by that department. There would be this clear 
 limitation upon the power of the legislature to prescribe riiles 
 for the executive department; that they must not be such as, 
 under pretense of regulation, divest the executive of. or preclude 
 his exercising, any of his constitutional prerogatives or powers. 
 Those matters which the constitution specifically confides to him 
 the legislature can not directly or indirectly take from his con- 
 trol. " ( Cooley's Constitutional Limitations, p. 138.) 
 
 13190 — 2 
 
18 
 
 liis power as commander-in-cliief witliout the power 
 to make orders for the regulation of the Army. In 
 fact, each branch of the Government — the legislative, • 
 executive, and judicial — has the original power of 
 making regulations for the transaction of its busi- 
 ness — most manifestl}^ so when the business is of 
 direct constitutional origin — but the legislative has 
 sometimes a jurisdiction over the regulations of the 
 other branches, and when this happens its jurisdic- 
 tion is superior.' 
 
 In speaking of the power of Congress over the ad- 
 ministration of the affairs of the Army, it is, of course, 
 not intended to include what would properly come 
 under the head of the direction of military move- 
 ments." This belongs to command, and neither the 
 power of Congress to raise and support armies, nor 
 the power to make rules for the government and reg- 
 ulation of the land and naval forces, nor the power to 
 declare war, gives it the command of the Army. Here 
 the constitutional power of the President as com- 
 mander-in-chief is exclusive. 
 
 When Congress fails to make regulations with refer- 
 ence to a matter of military administration, but either 
 expressly or silently leaves it to the President to do it, 
 it does not delegate its own legislative power to him, 
 because that would be unconstitutional, ' but expressly 
 
 ' Under the Constitution, each house of Congress determines 
 its own rules of proceedings. 
 
 ''Fleming v. Page, 9 How., 615. 
 
 nn McCall's Case (2 Philad., 269), the court said: "Of course 
 Congress can not constitutionally delegate to the President legis- 
 lative powers ; but it may, in conferring powers constitutionally 
 exercisable by him, prescribe, or omit prescribing, special rules 
 of their administration, or may specially authorize him to make 
 the rules. When Congress neither prescribes them, nor expressly 
 
19 
 
 or silently gives liim the opportunity to call his execu- 
 tive power into play. It is perhaps not easy to explai n 
 why, if regulations may, under the Constitution, be 
 made both by the legislative and executive branches, 
 one should have precedence over the other ; but it is to 
 be noticed that the power of Congress is the express one 
 "to make rules for the government and regulation of 
 the land and naval forces," whereas the power of the 
 President is a construction of his position as Executive 
 and Commander-in-Chief. The legislative power, by 
 the words quoted, covers the whole field of military 
 administration, but it is not always certain how far 
 the executive power may go. It is not as well defined 
 as the legislative power, but it is undoubtedly lim- 
 ited to so much of the subject as is not already con- 
 
 aiTthorizes him to make them, he has the authority, inherent in 
 the powers conferred, of making regulations necessarily incidental 
 to their exercise, and of choosing between legitimate alternative 
 modes of their exercise. Whether his authority extends further, 
 and enables him, without express authority from Congress, to 
 make regulations which, though incidental, are not necessarily 
 so, is a different question. When, however. Congress, in confer- 
 ring a power which it may constitutionally vest in him, not only 
 omits to prescribe regulations of its exercise, but, as in the pres- 
 ent case, expressly authorizes him to make them, he may. within 
 the limits of , and consistently with, the legislative power declared, 
 make any such regulations incidental, though not necessarily so, 
 to the power conferred, as Congress might have specially pre- 
 scribed." 
 
 "When statutes confer powers, impose duties, and provide for 
 the accomplishment of various objects, they are necessarily 
 couched in general terms, but they carry with them, by impli- 
 cation, all the powers, duties, and exemptions necessary to accom- 
 plish the objects thereby sought to be attained. " (In re Neagle, 
 39 Fed. Rep., 834.) 
 
 ' ' The difference between the departments undoubtedly is that 
 the legislature makes, the executive executes, and the judiciary 
 construes the law ; but the maker of the law may commit some- 
 thing to the discretion of the other departments, and the precise 
 boimdary of this power is a subject of delicate and difficult in- 
 (liiiry, into which a court will not enter unnecessarily." (Way- 
 man u. Southai-d, 10 W. , 46 (Marshall, C.J.).) 
 
20 
 
 trolled by the latter. ' The jurisdiction of the executive 
 power is not, however, within this limit coextensive 
 with that of the legislative power, because the legis- 
 lative branch of the Government has a constitutional 
 field of operation peculiar to itself, and yet there are 
 army regulations which seem to be of a legislative 
 character. It is because of this that difficulty some- 
 times occurs — a difficulty which has in the past quite 
 often taken the form of a difference of views between 
 the War Department and the accounting officers of the 
 Treasury. 
 
 ^ See opinion of Attorney General Wirt, 1 Opin. , 549; of At- 
 torney General Berrien, 2 Opin., 22.'), and of Attorney General 
 Gushing, 6 Opin., 10, 15. "The authority of the Secretary 
 to issue orders, regulations, and instructions, \s"ith the ap- 
 proval of the President, in reference to matters connected with 
 the naval establishment, is subject to the condition, necessarily 
 implied, that they must be consistent with the statutes w^hich 
 have been enacted by Congress in reference to the Navy. He 
 may, with the approval of the Pi-esident, establish regulations 
 in execution of, or supplementary to, but not in conflict with, 
 the statutes defining his powers or conferring rights upon others. 
 The contrary has never been held by this court. What we now 
 say is entirely consistent with Gratiot v. United States, 4 How., 
 80, and Ex imrte Reed, 100 U. S., 13, upon which the Government 
 relies. Referring in the first case to certain amiy regulations, 
 and in the other to certain navy regiilations, which had been 
 approved by Congress, the court observed that they had the 
 force of law. See also Smith r. Whitney, 116 U. S., 181. In 
 neither case, however, was it held that such regulations, when 
 in conflict with the acts of Congi'ess, could be upheld." (United 
 States r. Symonds, 120 U. S., 46-49.) And see Winthrop's Mili- 
 tary Law, pp. 29, 30, and note; and Dig. Opin. J, A. G., p. 168, 
 §6. 
 
CHAPTER 11. 
 
 EXECUTIVE REGULATIONS IN GENERAL. 
 
 Before further considering the regulations rehating to 
 one branch— the military branch— of the public service, 
 it will perhaps not be uninstructive briefly to examine 
 the subject of executive orders and regulations in gen- 
 eral.' There is an important distinction which should 
 be kept in mind in this connection, namely, the distinc- 
 tion between offices created by statute and those created 
 by the Constitution. As to the former, the extent of 
 their authority and the manner of its exercise are sub- 
 ject to the control of the legislative branch ; but as to 
 an office created by the Constitution, and whose gen- 
 eral powers are named in it, and which is not by the 
 Constitution made dependent on legislation for its 
 jurisdiction, its authority can not, as to these constitu- 
 tional powers, be thus controlled, except in so far as 
 the legislative branch may refuse to vote the means or 
 furnish the opportunity necessary for their exercise, 
 or unless the Constitution itself vests the legislative 
 branch with a superior authority as to some sub- 
 ject-matter over which both it and the executive or 
 judicial branch have jurisdiction. When Congress, 
 by its exercise of the legislative power, creates new 
 subjects of political action, it may, for the execution 
 of the laws relating to them, vest the President with 
 
 ' See article on 'Executive Regulations" in tlie American Law 
 Review, November-December, 1897. 
 
 (21) 
 
22 
 
 new powers ; but where the President is vested with a 
 distinct power by the Constitution, Congress can not 
 control it otherwise than as indicated/ 
 
 In the Neagle case the United States Circuit Court 
 (39 Fed. Rep., 833) said: "The power and duty im- 
 posed on the President to 'take care that the laws are 
 faithfully executed,' necessarily carries with it all 
 power and authority necessary to accomplish the 
 object sought to be attained." And on the appeal of 
 this case the Supreme Court (135 U. S., 63) said : "The 
 Constitution, section 3, Article II, declares that the 
 President 'shall take care that the laws be faithfully 
 executed,' and he is provided with the means of ful- 
 filling this obligation by his authority to commission 
 all the officers of the United States, and, by and with 
 the advice and consent of the Senate, to appoint the 
 
 ' ' ' The theory of the Constitution undoubtedly is, that the 
 great powers of the Government are divided into separate depart- 
 ments ; and so far as these powers are derived from the Consti- 
 tution, the departments may be regarded as independent of each 
 other. But beyond that, all are subject to regiilations by law, 
 touching the discharge of the duties required to be performed. 
 
 ' ' The executive power is vested in a President ; and as far as 
 his powers are derived from the Constitution, he is beyond the 
 reach of any other department, except in the mode prescribed by 
 the Constitution through the impeaching power. But it by no 
 means follows, that every officer in every branch of that depart- 
 ment is under the exclusive direction of the President. Such a 
 principle, we apprehend, is not, and certainly can not be claimed 
 by the President. 
 
 "There are certain political duties imposed upon many officers 
 in the executive department, the discharge of which is under the 
 direction of the President. But it would be an alarming doc- 
 trine, that Congress can not impose upon any executive officer 
 any duty they may think proper, which is not repugnant to any 
 rights secured and protected by the Constitution ; and in such 
 cases, the duty and responsibility grow out of and are subject to 
 the control of the law, and not to the direction of the President. 
 And this is emphatically the case, where the duty enjoined is of 
 a mere ministerial character." (Kendall v. United States, 12 
 Pet., 010.) 
 
23 
 
 most important of tliem and to fill vacancies. He is 
 declared to be commander-in-cliief of the army and 
 navy of the United States. The duties which are thus 
 imposed upon him he is further enabled to perform by 
 the recognition in the Constitution, and the creation 
 by acts of Congress, of executive departments, which 
 have varied in number from four or five to seven or 
 eight, the heads of which are familiarly called cabi- 
 net ministers. These aid him in the performance of 
 the great duties of his office, and represent him in a 
 thousand acts to which it can hardly be supposed his 
 personal attention is called, and thus he is enabled to 
 fulfill the duty of his great department, expressed in 
 tlie phrase that ' he shall take care that the laws be 
 faithfully executed.' 
 
 " Is this duty limited to the enforcement of acts of 
 Congress or of treaties of the United States according 
 to their express terms, or does it include the rights, 
 duties, and obligations growing out of the Constitu- 
 tion itself, our international relations, and all the 
 protection implied by the nature of the Government 
 under the Constitution?" 
 
 And the court, Mr. Justice Miller delivering the 
 opinion, then give a number of examples of proper 
 occasions for the exercise of this executive power, and 
 conclude that, while there is no express statute author- 
 izing the appointment of a deputy marshal, or any 
 other officer to attend a judge of the Supreme Court 
 when traveling in his circuit, and to protect him 
 against assaults or other injury, the general obligation 
 imposed upon the President of the United States by the 
 Constitution to take care that the laws are faithfully 
 executed, and the means placed in his hands, both by 
 
24 
 
 the Constitiition and the laws of the United States, to 
 enable him to do this, impose upon the executive 
 department the duty of protecting a justice or judge 
 of any of the courts of the United States, when there 
 is just reason to believe that he "will be in personal 
 danger while executing the duties of his office. 
 
 In Wilcox V. Jackson, 13 Pet., 498, the Supreme 
 Court held that the President could legally set aside 
 public lands for a military post or Indian agency, in 
 the execution of laws authorizing him to establish 
 them at such places as he might deem best, but not 
 expressly authorizing him to reserve public lands. 
 And in Grisar v. McDowell, 6 Wall., 381, the same 
 court call attention to the fact that from an early 
 period in the history of the Government it had been 
 the practice of the President to order, from time to 
 time, as the exigencies of the public service required, 
 parcels of land belonging to the United States to be 
 reserved from sale and set apart for public uses, his 
 authority in this respect being recognized in numer- 
 ous acts of Congress. Thus, in the Preemption Act of 
 May 29, 1830, it was provided that the right of pre- 
 emption contemplated by the act should not "extend 
 to any land which is reserved from sale by act of 
 Congress, or by order of the President, or which may 
 have been appropriated for any purpose whatever." 
 Again, in the Preemption Act of September 14, 1841, 
 "lands included in any reservation by any treaty, 
 law, or proclamation of the President, or reserved for 
 salines or other purpose," were exempted from entry. 
 So by an act of March 3, 1853, it was declared that all 
 public lands in California should be subject to pre- 
 emption, and offered at public sale, witli tlie exception, 
 
25 
 
 among others, ' ' of lands reserved by competent author- 
 ity^^'' and tlie court say tliat by " conij)etent authority" 
 was meant the authority of the President and officers 
 acting under his direction. As to the reservations then 
 in question the court say that they were indirectly 
 approved by the legislation of Congress in appropriat- 
 ing moneys for the construction of fortifications and 
 other public works upon them. And in the case of 
 Swaim v. United States,' it has been finally settled 
 that the President, as commander-in-chief, has the 
 constitutional power to convene courts-martial — a 
 striking illustration of an undefined constitutional 
 power, for it is nothing less than the power to consti- 
 tute tribunals with judicial jurisdiction extending 
 even to trials for capital ofi^ences. 
 
 The President, said Mr. Gushing, "is limited in the 
 exercise of his powers by the Constitution and the 
 laws : but it does not follow that he must show a stat- 
 utable provision for everything he does. The Govern- 
 ment could not be administered upon such a contracted 
 principle. The great outlines of the movements of 
 the Executive may be marked out, and limitations 
 imposed upon the exercise of his powers, yet there are 
 numberless things which must be done, which can not 
 be anticipated and defined, and are essential to useful 
 and healthy action of government." 
 
 •165U. S., 553. 
 
 "-Q Opin. Atty. Gen., 10, 865; 8 id., 343; \Oid., 413. See also 
 Appendixes A and B. 
 
 In United States ^\ Macdaniel, 7 Pet. , 14, the Supreme Court 
 said : "A practical knowledge of the action of any one of the great 
 departments of the Government, must convince every person that 
 the head of a department, in the distrihution of its duties and 
 responsibilities, is often compelled to exercise his discretion. He 
 is limited in the exercise of his powers by the law ; but it does 
 
26 
 
 It is well established that ' ' the Secretary of War is 
 the regular constitutional organ of the President for 
 the administration of the military establishment of 
 the nation ; and rules and orders publicly promulged 
 through him must be received as the acts of the Ex- 
 ecutive, and as such, be binding upon all within the 
 sphere of his legal and constitutional authority." ' 
 
 not follow that he must show a statutory provision for every- 
 thing he does. No government could be administered on such 
 principles. To attempt to regulate, by law, the minute move- 
 ments of every part of the complicated machinery of government 
 would evince a most unpardonable ignorance on the subject. 
 Whilst the great outlines of its movements may be marked out, 
 and limitations imposed on the exercise of its powers, there are 
 numberless things which must be done, that can neither be antici- 
 jiated nor defined, and which are essential to the proper action of 
 the Government. Hence, of necessity, usages have been estab- 
 lished in every department of the Grovemment, which have become 
 a kind of common law, and regulate the rights and duties of those 
 who act within their respective limits. And no change of siich 
 iisages can have a retrospective effect, but must be limited to the 
 future. " 
 
 In Caha v. United States, 152 U. S., 211, the Supreme Court, 
 through Justice Brewer, said : ' ' The rules and regulations pre- 
 scribed by the Interior Department in respect to contests before 
 the Land" Office were not formally offered in evidence, and it is 
 claimed that this omission is fatal, and that a verdict should have 
 been instriicted for the defendant. But we are of opinion that 
 there was no necessity for a formal introduction in evidence of 
 such rules and regulations. They are matters of which coiirts of 
 the United States take judicial notice. Questions of a kindred 
 nature have been frequently presented, and it may be laid doAvn 
 as a general rule, deducible from the cases, that wherever, by 
 the express language of any act of Congress, power is intrusted 
 to either of the principal departments of G-overnment to prescribe 
 rules and regulations for the transaction of business in which 
 the public is interested, and in respect to which they have a right 
 to participate, and by which they are to be controlled, the rules 
 and regulations prescribed in pursuance of such authority become 
 a mass of that body of public records of which the courts take 
 jiidicial notice." 
 
 ' United States v. Eliason, 16 Pet., 302 : United States r. Fletch- 
 er, 148 U.S., 84; Opinion of Attorney General Cushing, 7 Opin.. 
 4o3. The latter is an especially full and interesting discussion of 
 this point. 
 
27 
 
 So that if section KU of the Revised Statutes, above 
 mentioned, can be said to liave any reference to the 
 administration of military affairs, it would seem to be 
 to this extent unnecessary, the President already hav- 
 ing the constitutional authority to prescribe regula- 
 tions for this purpose through the Secretary of War. ' 
 An act of Congress, professedly conferring on the 
 President the power to do an act which he already 
 may do by virtue of his constitutional authority, is no 
 more than a declaration of the existing power^ But 
 the Secretary of War does not hold an office created 
 and defined by the Constitution. His office is a statu- 
 tory one, and its authority is subject to the control of 
 Congress, except in so far as his acts are acts of the 
 President, in the exercise of a constitutional function, 
 in a matter over which Congress has not a superior 
 constitutional power. Therefore, section IGl of the 
 Revised Statutes may be regarded as conferring the 
 authority described directly on him as one of the heads 
 of departments referred to, and this is not to be 
 regarded as a delegation of legislative power ; a dis- 
 tinction, although not a well-defined one, existing be- 
 tween those important subjects which must be entirely 
 regulated by Congress and those of less interest, in 
 reference to which a general provision is made and 
 power is given to those who may act under it to fill 
 up the details as incidental to its execution. This 
 matter is fully discussed in Griner's case, IG Wis., 
 447.'' But the regulations which the Secretary of 
 War is thus emjDowered to make are purely depart- 
 
 ' 6 Dec. First Comptroller, 13. 
 
 - See also United States v. Webster, 2 Ware, 40 : 28 Fed. Cases, 
 515, 517. 
 
28 
 
 raental regulations for the transaction of the depart- 
 mental business of the War Department. They are 
 not Army regulations proper. 
 
 Regulations made pursuant to, or in execution of, 
 statutes are very common. (See title "Regulations," 
 in the index of the Revised Statutes ; and see the opin- 
 ion of Mr, J. M. Dickinson, Acting Attorney General, 
 dated October 34, 1896, Appendix C.) 
 
 In the case of the United States v. Breen ' the con- 
 stitutionality of such regulations, made pursuant to 
 legislation declaring any violation of them a misde- 
 meanor and punishable by fine and imprisonment, 
 was fully recognized. In that case Mr. Justice Lamar 
 said : 
 
 "The only ground relied uj^on in behalf of the de- 
 fendant is, that the authority conferred by the act of 
 Congress on the Secretary of War to make and pro- 
 mulgate said rules and regulations is legislative, and 
 can not, under the Constitution of the United States, 
 be, by act of Congress, conferred upon the Secretary of 
 War or anyone else, so as to make a violation thereof 
 a crime against the United States. Whether this is 
 so or not is the only question to be determined. 
 
 ' ' If the law empowered the Secretary of War, l)y 
 rule or regulation, to make a certain act criminal, and 
 punishable as such, then this prosecution would not 
 be maintainable ; but it is not the rule and regulation 
 which declares the violation thereof a crime, and j)un- 
 ishable. All that the Secretary is authorized to do is 
 to make the rule and regulation. It is the act of Con- 
 gress which declares that the unlawful and willful 
 violation of such rule and regulation, after it is pro- 
 
 '40 Fed. Rep., 402. 
 
29 
 
 niuliiati'd, shell! V)o lield a misdemoauor by the person 
 viohiting the same, and that such person shall he sen- 
 tenced to pay a fine not exceeding $500, and shall suffer 
 imprisonment not exceeding six months as a penalty 
 therefor. Numerous acts of Congress have been 
 passed authorizing the Postmaster General, and other 
 members of the executive department, to make rules 
 and regulations for the business pertaining to their 
 respective departments, and declaring that, when 
 made and promulgated, a willful and unlawful viohi- 
 tion of them should be held a crime against the United 
 States, and the violators punished as prescribed in the 
 act. The Supreme Court of the United States is 
 authorized by act of Congress to adopt certain rules 
 for the government of the inferior courts, which, when 
 made, have the force and effect of law as much as if 
 such rules were directly enacted by Congress, and ap- 
 proved by the President. The same effect is to be 
 given to the rule and regulation made by the Secre- 
 tary in this case. The act of Congress denounces the 
 violation of it as a crime, and prescribes the penalty. 
 The criminality of the violation of the rule, and the 
 liability of the offender to indictment and to punish- 
 ment upon trial and conviction, result directly and 
 exclusively from the legislation of Congress.'" 
 
 ' In Woods V. Gary, Mr. Jiistice Cox of the supreme court of 
 the District of Columbia, said : 
 
 "If an act of Congress, presumed to he approved by the Presi- 
 dent, vests in the judges or heads of the departments authority 
 to appoint subordinate officers, then, by constitutional authority, 
 the power to appoint them is taken away from the President; 
 and it follows, according to this case, that the power of removal 
 would be equally taken away. The President might dismiss the 
 head of a department who would refuse at his request to dismiss 
 a subordinate or inferior officer, but would have no power di- 
 rectly to dismiss such officer himself. 
 
30 
 
 "It may be regarded, then, as the settled law that the power 
 of removal is incident to the power of appointment, and, there- 
 fore, that any law which confers upon the head of a department 
 a power of appointment, ipso facto, conveys a power of removal, 
 as effectually as if that power were expressly given by the statute! 
 The power of removal is intrenched in the law. It is created by 
 an act of legislation, and it can onlv be taken away or modified 
 by similar authority. The acts of Congress, therefore, author- 
 izing the appointment of complainant as inspector of mails, of 
 themselves gave the Postmaster General authority to remove him 
 at pleasure, unless that or some other act of Congress has im- 
 posed some limitation, condition, or restriction upon that power. 
 
 "And this brings us to the inquiry whether and how far, if at 
 all, the act of January 16, 1883, commonly known as the Civil 
 Service Act, affects the power of removal at pleasure which the 
 Postmaster General would possess under his general authority 
 to appoint this class of officers. It does, indeed, very materially 
 modify the power of appointment theretofore existing, but it 
 does not purport to affect the power of removal, except in a single 
 particular. 
 
 "In section 13 it provides that: ' No officer or employee of the 
 United States mentioned in this act shall discharge or promote 
 or degrade, or in any manner change the official rank or compen- 
 sation of any other officer or employee, or promise or threaten to 
 do so, for giving or withholding or neglecting to make any con- 
 tribution of money or other valuable thing for any political pur- 
 pose. ' 
 
 "Substantially the same is directed to be provided by rules, to 
 be established by the Commission and the President, in clause 3 
 of the second section. In no other single respect is the power of 
 removal affected by any substantive and direct enactment of this 
 law. 
 
 "But it is claimed that the Commission is empowered to pre- 
 pare rules in aid of the President for carrying this act into effect, 
 and that said rules, when prepared and promulgated, have the 
 force and effect of law, and that such effect is to be given to the 
 rules under which the complainant seeks relief. 
 
 "There can be no doubt as to the power of Congress or any 
 other legislative body to delegate to subordinate authorities the 
 power to make rules and regulations within certain limits, which, 
 when made, will have the force of law. Thus, corporations, mu- 
 nicipal or private, may be authorized to make by-laws, and 
 police commissioners, boards of health, and fire commissioners 
 may be authorized to make regulations which have the effect 
 of laws. 
 
 ' • But if any rule prepared by this Commission, whether pub- 
 lished by the President or not, should have the effect of repealing 
 or modifying an act of Congress, it would be an act of legislation, 
 and not a regulation of a mere executive character, which it was 
 
31 
 
 clearly the object of «»«!»» to a„th«i.e^ ^^SJt^^V^ 
 
 iSfaSE^SiS/E^ncydo'iX^f Law, volmne 8. „age m. 
 "' " "it";! i;re°tabHSie<l proposition ot constitntional law that 
 
 that ^„^" ^4»Xfe Comme rcrc^^^^^^ Railway Company 
 
 midue preferences etc It cieateati.e^ ^^^^ management 
 
 w£ett^- th^CoZSm^ had the jnrisclictional P0^7r to make 
 '•^wTliave therefore, these considerations presented : First 
 
33 
 
 function, and, having respect to the large amount of property 
 invested in raih'oads, the various companies engaged therein 
 the thousands of miles of road, and the millions of tons of freight 
 carried, the varying and diverse conditions attaching to such 
 carriage, is a power of supreme delicacy and importance. Second. ■ 
 That Congress has transferred such a power to any administrative 
 body IS not to be presumed or implied from aiiv doul)tful and 
 uncertain language. The words and phrases efticacious to make 
 such a delegation of power are well understood and have been 
 frequently used, and if Congress had intended to grant such a 
 power to the Interstate Commerce Commission it can not be 
 doubted that it would have used language open to no miscon- 
 struction, but clear and direct. Third. Incorporating into a 
 statute the common -law obligation resting upon the carrier to 
 make all its charges reasonable and just, and directing the Com- 
 mission to execute and enforce the provisions of the act, does not 
 by implication carry to the Commission or invest it with the power 
 to exercise the legislative function of prescribing rates which 
 shall control in the future. ' 
 
 ' ' And so, with eipial emphasis, it may be said that the author- 
 ity to the Civil Service Commission to aid the President in pre- 
 paring rules for carrying the act creating that Commission into 
 effect, does not by implication confer upon the President a right 
 to virtually repeal an existing law, especially when, as we shall 
 see, that is not at all necessary to the effectual operation of the 
 act itself. And lastly, there is nothing in the language of the 
 act or the objects w-hich it professes to attain which make it 
 necessary to attribute such executive power to the Commission 
 or the President. The act nowhere requires that the power of 
 removal vested in the head of a department shall be abridged 
 except m the single particular of removal, because of the refusal 
 to contribute for partisan purposes; and therefore it is not 
 necessary, in order to carry the act into effect, that any rule 
 should be adopted abridging the power of removal of the" Post- 
 master General or other head of a department in any other 
 respect. 
 
 ' ' The second section contains an enumeration of the objects 
 for which the rules are to provide. They are : For competitive 
 examination, for appointment by selection from those grades 
 highest as the result of such examinations, for apportionment of 
 the appointments among the States and Territories and the Dis- 
 trict of Columbia, according to population, for a period of pro- 
 bation before absolute appointment, for exemption of persons in 
 the public service from any obligation to contribute to any 
 political fund and from being coerced into any political action, 
 and for noncompetitive examination in certain cases, and for 
 notice to the Commission of all appointments made bv the 
 appointing power. 
 
 "It would be a very irrational interpretation which would give 
 to the words 'and among other things,' which are prefixed to this 
 
33 
 
 enumeration, snch a scope of meaning as to convey by implica- 
 tion an unlimited authority to establish rules having no relation 
 to the objects of the law. If that were a proper interpreta- 
 tion of the law, these riiles might be made to impose new con- 
 ditions to the power of appointment, and even take it away 
 from the heads of the departments and vest it in the Commission 
 itself. The absurdity of such a i^roceeding would be manifest, 
 and yet it would be no more obnoxious to criticism than rules 
 modifying the power of removal, as it existed before the act was 
 passed, or in a manner not warranted by the law itself. 
 
 "The law seems to contemplate the preparation of these rules 
 as the joint act of the Commission and the President. It directs 
 that when promulgated they shall be observed by all the officers 
 in the departments. It does not in terms declare by whose au- 
 thority they are to be promiilgated and to go into effect, but it is 
 to be presumed that it is to be by the President. It makes no 
 difference, however, whether they are to emanate from the Pres- 
 ident or the Commission, for Congress is just as incapable of 
 surrendering its legislative authority to the President as to the 
 Commission; and is just as little to be understood as intending 
 to do so in the one case as in the other. The simple inquiry is 
 whether the rules invoked by the complainant, whether the Pres- 
 ident or the Commission, or both, be the authors of them, are 
 such as the act of Jamiary 16, 1883, known as the Civil Service 
 Act, authorized to be established. In my judgment they are 
 ultra vires and void. 
 
 ' ' I have no doubt that the President may lay down rules for 
 the internal policy of his Administration, and may require his 
 chief executive officers, dependent upon his pleasures for their 
 tenure of office, to conform to them, or else to sever their ofBcial 
 relations with him, and in that sense the rules relied on by the 
 complainant were within his political and execl^tive authority. 
 But the enforcement of such rules is a matter between the Presi- 
 dent and his Cabinet, and not a matter for the courts, or one in 
 which the complainant has any legal interest. All that I mean 
 to state in this opinion is that the rules in question were not such 
 as the Civil Service Act authorizes, and do not derive any efficacy 
 from that act. 
 
 ' ' I know of nothing more important to the true interests of 
 the country than the policy which the civil-service legislation 
 was intended to initiate and loromote, and it is perhaps a matter 
 for great regret that the act of January 16, 1883, has not gone 
 further than it does. But it is my duty to construe it as it is. 
 
 "To sum up, I conclude that, apart from the Civil Service Act, 
 the Postmaster General had the authority to remove the com- 
 plainant from office at his pleasure; that this act makes no 
 change in this respect, except to forbid removals for refusal to 
 contribute to partisan objects ; that the power to the Commission 
 and the President to establish rules to carry that act into effect 
 
 13190 — 3 
 
 •f. '.! V Vf 
 
34 
 
 does not authorize any rnle which shall make a change in the 
 law in this respect, and that even if this coiirt had jurisdiction 
 in a case like the present, the complainant is not entitled to the 
 relief prayed." . .-,.,, ^ 
 
 In Carr v. Gordon, 82 Fed. Rep., 379, it was said with reference 
 to a civil service rule : tt -^ ^ c.l i. 
 
 "But on July 27, 1897, the President of the United States pro- 
 mulgated an order announced as an amendment to rule 11, as 
 follows : ' No removal shall be made from any position subject to 
 competitive examination except for just cause, and upon written 
 charges filed wnth the head of the department or other appoint- 
 in"- officer, and of which the accused shall have full notice, and 
 an" opportunity to make defense.' This is an authoritative ex- 
 pression by the Executive of the United States of his desire and 
 command to his subordinates with respect to removal from office 
 of those coming within the scope of the civil service regulations. 
 Possessed by the Constitution of the power of appointment and 
 removal, except, possibly, as he may be therein restricted by act 
 of Congress, the Executive has the right to regulate for himself 
 the manner of appointment and removal. He may direct his 
 subordinates, who exercise under him, in certain cases, the power 
 of appointment and removal, ■v\ath respect thereto, and may reg- 
 ulate the manner in which they may act for him ; but this is an 
 administrative order of the Executive, not made m compliance 
 with any law, or in regulation of the execution of any law enacted 
 by Congress restricting his right of removal, but is simply an 
 instruction to those who hold positions by virtue of his appoint- 
 ment of the manner in which they shall discharge their duties in 
 respect to the removal of their subordinates. The order is not 
 the law of the land ; it is not the emanation of the law-making 
 power, but is merely a regulation adopted by the Executive, as 
 he rightfully might, in regulation of the conduct of those who 
 are subject to his authority. He made it, and may, at his pleas- 
 ure, rescind it. The law of the land is not subject to repeal by 
 theExecutive. The regulation and orders of the Executive or 
 heads of departments under authority granted by Congress- 
 such as the order under consideration here— are regulations pre- 
 scribed by law in the sense that acts done under them are upheld ; 
 and in that light they may have the force of law. But the failure 
 to do the act thereby enjoined, or the doing of the act thereby 
 prohibited does not render one liable to the law. United States 
 V Eaton, 144 U. S., 677, 688, 12 Sup. Ct., 764. Consequently, no 
 vested right to hold office indefinitely is acquired by the incum- 
 bent by virtue of the executive regulation in question. This 
 executive order or regulation, therefore, confers no right upon 
 the incumbent of office of which a court of equity can take cog-, 
 nizance He who disobeys such order of the President is respon- 
 sible to, and must be dealt with by, him. Courts of equity are 
 not constituted to regulate the departments of the government. 
 
35 
 
 Their jurisdiction is limited to the protection of the rights of 
 property. They have no concern, as I understand the boundaries 
 of their jurisdiction, over the appointment and removal of public 
 officers. " 
 
 See also Taylor v. Kercheval, 83 Fed. Rep., 497, in which case 
 the court said: "It needs neither argument nor citation of 
 atithority to demonstrate that neither the President nor the 
 Civil Service Commission is clothed with legislative powers. 
 Neither can change the law, either by repeal or by making a 
 new enactment. And it is equally elementary that Congress 
 can not delegate its legislative powers either to the President or 
 the Civil Service Commission. The rules promulgated which 
 place office deputies in the marshal's office in the classified civil 
 list are not a statute, nor have they the force of law. They are 
 merely executive rules and regulations, promulgated by author- 
 ity of law, and are effective, if at all, only as rules and regula- 
 tions for the internal control and government of the civil service 
 and the executive departments. The courts of chancery have 
 no jurisdiction or authority to enforce such rules or regulations. 
 Their enforcement lies within the domain of the executive 
 departments, which possess ample power to enforce the proper 
 observance of and subordination to the rules and regiilations 
 promulgated by the Executive for the government of those 
 employed in any executive department of the government. If 
 the marshal, by the removal or threatened removal of the com- 
 plainant, has violated, or is about to violate, those rules and 
 regulations, there is ample power in the Department of Justice 
 to redress the wrong, without any resort to a court of chancery." 
 
 But see the case of Butler v. White, 83 Fed. Rep., 578, in 
 which the court held : 
 
 ' ' First, that the act known as the ' Civil Service Act, ' is con- 
 stitutional; second, that Congress has not delegated to the 
 President and the Commission legislative powers ; third, that by 
 rule 3, sec. 1, the Internal Revenue Service has been placed 
 under the Civil Service Act and rules made in pursuance of it ; 
 fourth, that the plaintiffs in these actions are officers of the 
 Government in the Internal Revenue Service; fifth, that they 
 cannot be removed from their positions except for causes other 
 than political, in which even their removal must be made under 
 the terms and provisions of the Civil Service Act and the rules 
 promulgated under it, which, under the act of Congress, became 
 a part of the law; sixth, that the attempt to change the position 
 and rank of the officers in these cases is in violation of law; 
 seventh, that a court of equity has jurisdiction to restrain the 
 appointing power from removing the officers from their positions 
 if such removals are in violation of the Civil Service Act." 
 
36 
 
 But it is not necessary to give further examples of 
 regulations made pursuant to, or in execution of, stat- 
 utes. Tliey are to be met with, throughout our polit- 
 ical system, and are a necessary part of its machinery.' 
 
 The power to make regulations is not, indeed, con- 
 fined to political bodies or officers. It enters into other 
 relations of life — wherever, in fact, government is 
 necessary.^ (See post, page 82, note). Thus, corpora- 
 tions possess the power of making regulations, includ- 
 ing by-laws. Social clubs have the power, and their 
 regulations are recognized by the courts as binding.' 
 We here speak of by-laws as regulations. In one 
 
 ' It would require too ranch space to enumerate all the statu- 
 tory provisions of this class do^\^l to the present time, in which 
 " regulations," as such, are authorized to be prescribed. For the 
 principal of those enacted iirior to 1886, reference may be had to 
 the first edition of this work, page 18-19, note 3. Repeated 
 instances also occur in the statutes where, though the word 
 "regulations" is not employed, the same meaning is conveyed by 
 some equivalent term or expression ; as by the term " directions," 
 "instructions," "forms," "requirements," "restrictions," "con- 
 ditions," "limitations," "by-laws." Not unfrequently a thing 
 is required by the statute to be done in such manner, etc. , as a 
 head of a department, etc. , ' ' may prescribe. " The ' ' Regulations 
 for the Government of the Re venue -Cutter Sei'vice of the United 
 States," issued by the Secretary of the Treasury, April 4, 1894, and 
 resting on no aiithority more express than is found in the terms of 
 sections 2758 and 2762, placing this corps (consisting of the offi- 
 cers and crews of thirty-six vessels) under the general direction 
 of the Secretary, is a striking illustration of the discretion exer- 
 cised by heads of departments in making regulations as to matters 
 of detail. (Winthrop's Military Law and Precedents, p. 18.) 
 
 ^ ' 'A regulation is merely a ' governing direction. ' It implies 
 authority on one side — subjection on the other. * * * It is 
 distinguished from contract, which implies the right of all par- 
 ties to stipulate for terms. * * * A regulation is an order by 
 authority." (Hon. William Lawrence, 1 Dec. First Comp., 55.) 
 
 ^ Every public assembly has the power to make and enforce 
 certain rules for the transaction of business and the preservation 
 of order. (Jameson on Constitutional Conventions, p. 463.) 
 Passenger-carriers may prescribe reasonable regulations for the 
 control of passengers, and employers for their employees. 
 
37 
 
 sense a distinction has been made between them in the 
 law of corporations, the by-law being held to be more 
 nsually establislied for the government of the internal 
 affairs of the corporation, while the regulation is 
 regarded as intended for the government of its busi- 
 ness with the public. ' But the word reg idation is here 
 used in a broader sense and as including the by-law. 
 
 In the case of Yturbide v. The Metropolitan Club, 
 the court of appeals of the District of Columbia said : 
 "There is no longer any question of the right of a 
 corporation, such as that of the respondent in this case, 
 to make by-laws, even in the absence of express stat- 
 utory power, and to exercise the power of amotion, as 
 incident to the corporation. This has been regarded 
 as the settled law since the case of Lord Bruce, 2 
 Strange, 819, and the subsequent exposition of the 
 whole doctrine in the case of Rex v. Richardson, 1 
 Burr., 517, 539, by Lord Mansfield, speaking for the 
 Court of King's Bench in 1758. In this last mentioned 
 case, after reviewing the former decisions and the pre- 
 vious doctrine upon the subject, and showing that the 
 older cases had maintained a doctrine that had been 
 modified by the more recent cases, the Lord Chief 
 Justice said : ' We all think this modern opinion is 
 right. It is necessary to the good order and govern- 
 ment of corporate bodies, that there should be such a 
 power (that of amotion), as much as the power to make 
 by-laws. Lord Coke says (Bagg's Case, 11 Co. 98a) 
 'there is a tacit condition annexed to the franchise 
 which, if he breaks, he may be disfranchised.' But 
 where the offence is merely against his duty as a cor- 
 porator, he can only be tried for it by the corporation. 
 
 1 Thompson on Corporations, sec, 937. 
 
38 
 
 Unless the power is incident, franchises or offices 
 might he forfeited for offences, and yet there would 
 he no means to carry the law into execution. Sup- 
 pose a hy-law made to give power of amotion for 
 just cause, such a by-law would be good. If so, a cor- 
 poration, by virtue of an incidental power, may raise 
 to themselves authority to remove for just cause, 
 though not expressly given by charter or prescription.' 
 The doctrine of that celebrated case lias never been 
 questioned from the time it was announced, and it is 
 the law, both in England and in this country, at the 
 present day. Com. v. St. Patrick Ben. Soc, 2 Binn., 
 448, 449; 2 Kent. Com., 297." 
 
 As already stated with reference to Army regula- 
 tions made pursuant to statute, regulations of this 
 kind may be modified, but exceptions to them in indi- 
 vidual cases can not legally be made.' There is, 
 
 ^ This is illustrated by the following newspaper coraments 
 (1897): 
 
 The appointment of General Tyner to be Assistant Attorney 
 General for the Post Office Department has been criticised by 
 some as a violation of the civil service law, in that the place 
 being under the Post Office Department was inchided within 
 the classified service by an order of President Cleveland. 
 
 Civil Service Commissioner Procter to-day stated that when 
 President Cleveland ordered the classification of the Post Office 
 Department, it was not supposed that the place of Assistant 
 Attorney General for that Department was within the scope of 
 that order. When it was found that such was the case, the 
 matter was broiight to the attention of President McKinley, who 
 excepted the place, allowing the appointment to be made with- 
 out examination by the Civil Service Commission. 
 
 The announcement that the President had excejited this place 
 after it had been included in the classified service, even if such 
 classification was the result of a mistake, has created surprise, 
 as the Commission has contended that when once a place was 
 included in the classified service by order of the President, under 
 authority of the civil service law, such action had the force of 
 law and could not be rescinded except by act of Congress. 
 
 At the office of the Civil Service Commission to-day it was 
 stated that this view of the effect of once including a place in 
 
39 
 
 however, a difEerence to be observed m this respect 
 between general regulations and specific acts Ordi- 
 narily when an executive officer is empowered by law 
 to do one specific act, as, for example, to reserve pub- 
 lic land for a specific public use, bis doing this act 
 exhausts his power as to the subject-matter So 
 where he is empowered to do a specific set of acts. 
 But when he is given a general discretionary power 
 to make regulations in execution of a law the power 
 to modify regulations once made is included m it. 
 
 A distinction should, however, be made between 
 essential regulations made in aid of a statute, such as 
 are necessary to the execution of the statute and thus 
 have the appearance of being of a decidedly legislative 
 character, and regulations which are merely supple- 
 mental to these and relate to the minor detai s of the 
 machinery for the execution of the statute. These are, 
 to be sure, made in aid of it also, but are not of the 
 character referred to. It is, however, impossible to 
 lay down any rule which would enable us, at a glance, 
 to distinguish in every case the one from the other. 
 There is not always a clear-cut line of demarcation. 
 The distinction exists, but its application must be con- 
 trolled by the facts of each case. 
 
 The Judge- Advocate General's Oflice has applied the 
 principle of the binding character of regulations made 
 In execution of statutes to regulations made for the 
 disbursement of an appropriation, holdmg that when 
 
 could make "necessary" exceptions. 
 
40 
 
 Congress makes an appropriation, but leaves it to the 
 Executive to prescribe regulations for its disbursement, 
 such regulations should be regarded as made in execu- 
 tion of a statute (although not actually pursuant to it), 
 and therefore as falling under the rule that they 
 are binding on the authority who made them as well 
 as on others, and that they may be modified, but 
 that individual excei)tions to them can not be made. 
 And the action of the War Department is under- 
 stood to have been a confirmation of this view. The 
 regulations in question related to the expenditure for 
 the transj)ortation of deceased soldiers to the place 
 of burial.' Another example of a regulation of this 
 
 ' The Judge-Advocate General's views were, on this occasion, 
 stated as follows : 
 
 "Paragraph 162, Army Regulations, provides that the remains 
 of deceased soldiers will be transported by the Quartermaster's 
 Department to the nearest military post or National Cemetery 
 for burial, unless the commanding oflBcer deems burial at the 
 place of death proper. It also prescribes that the expense of 
 transporting the remains is payable from the appropriation for 
 Army transportation. 
 
 ' ' In the case i)resented in this communication transportation 
 for the remains of a deceased soldier from Fort Walla Walla to 
 Middletown, Pennsylvania, is asked for, and my opinion is 
 desired as to whether the Secretary of War has authority to 
 grant the request. 
 
 ' ' The regulation cited is one for the disbursement of a public 
 fund. The appropriation act does not prescribe regulations for 
 this disbursement, but leaves it to the Executive to do so. This 
 is the same, in effect, as if Congress had expressly authorized 
 the Executive to make regulations. Therefore, regulations made 
 by the Secretary of War, determining the amounts of the dis- 
 bursements of the appropriation should, it is believed, be 
 regarded as made in aid of a statute. Such parts of the regula- 
 tion as relate to the purely administrative machinery for the 
 expenditure of the appropriation may, however, in my opinion, 
 be distinguished from the quasi legislative part prescribing the 
 amounts of the disbursements. To the former I have no doubt 
 the Secretary of War can make exceptions ; to the latter I am of 
 opinion that he can not. Regulations of this kind should, for 
 the purposes of such inquiry as is made in this case, be classed 
 
41 
 
 kind is that fixing the fees of civilian witnesses hefore 
 conrts-martial, for, although in deference to the views 
 of the Comptroller of the Treasury these fees have 
 been made to conform to those of witnesses before the 
 Federal courts, as regulated by the RevisBd Statutes, 
 this regulation is none the less an exercise of the exec- 
 utive power in carrying out an appropriation, and has 
 
 with those made pursnant to statiite, as to which I am of opinion 
 that they should be held to have become a part of the law, and 
 to be of the same force as the stattite itself, and that, although 
 they may be changed by the authority making them, they are 
 binding, on such authority so long as they are not changed, and 
 that he can not gi-a»t exceptions to them. (See my remarks on 
 the Army Regulations, page 4, section 2, aufe, p. 6.) 
 
 " It is true that in cases like the present the regulation is not 
 actually made pursuant to statute. The statute does not itselt 
 expressly provide for the making of the regulation, but leaves it 
 to be doiie by the Executive in the exercise of the constitutional 
 power vested in him as commander-in-chief and by the require- 
 ment that he shall ' take care that the laws be faithfully execu- 
 ted ' But the regulation is none the less in aid of the statute 
 in the relation which I have indicated— prescribing an essential 
 rule for the disbursements to be made under the statute, and 
 not merely relating to the administrative means of applying the 
 
 "This seems to me to be the sound view to take of this matter. 
 The action of the War Department has, however, not been con- 
 sistent Avith reference to regulations of this class— possibly 
 because the difference between them and purely administrative 
 reo'ulations, having no such intimate relation %\nth statutes, has 
 not been noticed. With reference to the regulations made pur- 
 suant to the act of Congress relating to the examination ot 
 enlisted men for promotion, it has been held that they can not 
 be waived in individual cases, and, on the other hand, as I am 
 informed, the regulation prescribing the per diem allowances ot 
 civilian employees when traveling under orders has been waived 
 in individual cases. (I understand that the right to make this 
 waiver has been recognized bv the Comptroller of the Treasury, 
 although in a decision of the Assistant Comptroller with refer- 
 ence to the transportation of officer's baggage the latter seemsto 
 recognize the distinction which I have made, for he admits the 
 right of the Secretary of War to make an exception to a regu- 
 lation prescribing the'method of transporting an officer s baggage, 
 while apparently not admitting his right to make an exception 
 increasing the money allowance for it in an individual case. ) 
 
42 
 
 no dependence on tlie statute with which it has been 
 made to conform.' And another example of such a 
 
 "The practice of the War Department does not therefore 
 appear to be uniform, but, in my opinion, its action in the mat- 
 ter of the regulations made in aid of the statute relating to the 
 promotion of enlisted men is based on the coiTect view of this 
 question, and, applying what was held in that matter, to the 
 present case, I am of opinion that the exception to a regulation, 
 asked for, would be contrary to the true conception of the force 
 of such regulations and therefore unauthorized. "' 
 
 As to the President's power to make regulations prescribing 
 allowances, see United States v. Webster, 28 Fed. Cases, 509; 
 United States v. Ripley, 7 P., 18; 24 Ct. Cls., 209. 
 
 1 The following is an extract from a report of the Acting Judge- 
 Advocate G-eneral, dated February 6, 1893, when this subject 
 was iinder discussion : 
 
 "In the Army Appropriations Act an appropriation is each 
 year made for the 'compensation of reporters and witnesses 
 attending upon courts-martial and coiirts of inquii-y. ' No rate 
 of compensation is prescribed, nor is it in terms indicated by 
 whom the rate shall be fixed; but these appropriations have 
 from year to year been made with the knowledge and in recog- 
 nition of the fact that the law was being supplemented by regu- 
 lations fixing the rates of compensation. This has been done for 
 many years, and the propriety of such regulations has thus been 
 distinctly recognized bv Congress. 
 
 "To me it seems to be entirely clear that the appropriation 
 was intended to be expended under rules prescribed by the head 
 of the Department charged with the expenditure, and that the 
 rate of compensation was a matter left to the discretion of the 
 Secretarv of War. The Second Comptroller does indeed refer to 
 section 848 of the Revised Statutes as though it might be held to 
 fix the compensation of ci\dlians attending as A\atnesses before 
 courts-martial, but that section relates entirely to the Federal 
 judiciary, of which courts-martial form no part, and is no more 
 applicable to courts-martial than any other provision of the title 
 (' Judiciai-y') in which it is found. 
 
 "The fixing of the rate of compensation has, it seems to me, 
 been purposely left bv Congress to the Secretary of War. It 
 has been intrusted to his discretion, and whenever, in the exer- 
 cise of that discretion, he established a certain rate, that decision 
 is legally conclusive on all. In my opinion the Second Comp- 
 troller, in announcing his intention not to allow payments made 
 according to the rates established by the Secretary of War, is 
 exceeding his authority. 
 
 "The disallowance of such payments will give much trouble, 
 and yet I can not recommend the recognition of a right on the 
 
43 
 
 regulation was that by which the reward for the appre- 
 hension of deserters was regulated, before Congress 
 
 part of the Second Comptroller to set aside ^ T^^^^jlf ^9^^^^^^ ^y 
 the Secretary of War in the exercise of a legal discretion 
 
 The powe/of the President to determine the amount ot fees and 
 allowances for specified services, when an appropriation for them 
 fs Se but Congress does not itself deternune the rates ot such 
 feeJand allowances, is beyond all question and l^as been recog- 
 nized by the practice both of Congress and the Executive, as well 
 II L the decisions of the court.. In UnUed States^. Webst^^^^^^ 
 Ware 46- 28 Fed. Cases, 509, Judge Ware, of the United btates 
 Sk-t court of Maine, held, with reference to an Army regula- 
 tion making a certain allowance, as follows: . i • i +• 
 ' m? do I see how it can be overcome but by a direct denial o 
 the aiithoritv of the Department to establish any such rule, with 
 respect to exti a allowances, by general regulations aiixl orders 
 Tf miliars to me that it is fairly within the authority of the 
 WaTKartme^t: under the sanction of the President to estab- 
 lish geneial rules upon this subject, which, when duly promul- 
 gated will be binding on the rights of the ofdcers. It is not 
 fonteiicSl that an orcfer of the Executive can control an act of 
 legislature, or deprive a party of a right acquired under the 
 law Biit as has been remarked, the legislation of Congress can 
 neTer go into all the minute detail of regulation, mvolved in the 
 JmnpliSted service of the Army. Much must unavoidably be 
 let^ to the discretion of the high officers, ^'l^^^^P^"]^ f^J^i^^?* 
 branch of the public service; and as these matters of detail are 
 lefTto the regulation of the Department, it seems to me reason- 
 able when officers are required to perform services which do not 
 fall ^tMn the range of their ordinary duties, that it is properly 
 .Jithhi the discretion of the Department to determine what, and 
 ^iX r anreSra compensation should be allowed for such extm 
 
 service, taking care that the rule be ^^\\*<^™i' ^"i^^JJ^Sd eems 
 same way to all similar cases. An authority ot this kind seems 
 to me to'i^e clearly implied, in the reasoning of the court in the 
 cases which have been before mentioned. The amount ot com 
 Snsation ' says Mr. Justice McLean, 'in the military service. 
 Say depend hi some degree upon the regulations of the War 
 Separtiient; but such regulations must be "^"f, «™;' ,^^^ f.f^^g^^ 
 cable to all officers under the same circumstances. (United 
 States .Ripley, 7 Pet. (33U. S.), 35.) And in still broader terms 
 he savs in the opinion before quoted, ' Hence, of necessity, usages 
 Save been established in every Department of the Government 
 wMch have become a kind of common law, and regu ate the 
 lights and duties of those who act withm respective limits ; and 
 no change of those usages can have a retrospective effect, but 
 must be limited to the future. ' (United States v. McDainel, ul. , 
 
44 
 
 was induced to take to itself the determination of tlie 
 amount of the reward. 
 
 It is said that regulations made under a statute may 
 be referred to as a practical interpretation of the stat- 
 ute,' In executing the laws it is often necessary for 
 executive officers to interpret and construe them, and 
 this may be done by means of regulations. Such reg- 
 ulations are valid and binding, unless declared by the 
 courts to be erroneous interpretations of the law. Each 
 new tariff act, for example, necessitates many such 
 regulations, and we have a good illustration of this in 
 the Treasury Circular of September 4, 1897, with ref- 
 erence to the entry of personal effects under the act of 
 July 24, 1897. In this circular we find the following 
 definition of the phrase, ' ' residents of the United States 
 returning from abroad," as it occurs in the act: 
 
 "The proviso in paragraph 697 contains special pro- 
 visions and limitations concerning residents of the 
 United States returning from abroad. It therefore 
 
 15. ) If usage is to govern, in what manner does usage become 
 established ? Obviously in no other way than by the practice of 
 the Department. Apply the remark to the case now in judgment. 
 A usage of allowing extra pay, for extra services of any particu- 
 lar kind, is established, by its being charged in various instances, 
 and allowed and ordered to be paid, by the Department. It is 
 obvious, therefore, that no usage can be established but by the 
 concurrence of the Department : for no number of charges, how- 
 ever numerous, on the part of the officers, can ever constitute a 
 usage, under which any right can be claimed, unless they have 
 been allowed. It is the allowance which constitutes the usage." 
 This case was carried to the circuit court by writ of error, but 
 did not come to a hearing until after the decision in the case of 
 United States v. Eliason, 16 Pet. (41 U. S.), 291, made in 1842. 
 It was then affirmed, without argument, upon the aiithority of 
 that decision. 
 
 'United States v. Cottingham. 1 Rob. (Va.), 635; Winthrop, 
 19, note. 
 
45 
 
 becomes necessary to define the term ' residents of the 
 United States returning from abroad,' in order that 
 customs officers may have a reasonable guide in the 
 practical application of the proviso. The word ' resi- 
 dent' has, in law, more than one meaning, much de- 
 pending upon the connection and purpose in which it 
 is used. As used in this proviso to paragraph 697, it 
 is held by the Department to include all persons leav- 
 ing the United States and making a journey abroad, 
 and, during their absence, having no fixed place of 
 abode. Persons who have been abroad two years or 
 more, and who have had, during that time, a fixed 
 place of abode for one year or more, will be considered 
 as nonresidents within the meaning of this law." 
 
 So, Article 243 of the Naval Regulations of 1896 pre- 
 scribes as follows: "The title 'commander-in-chief,' 
 when occurring in naval laws, regulations, and other 
 documents, shall be held to refer to the officer in chief 
 command of a fleet or squadron." And the United 
 States circuit court, district of Massachusetts (Colt, 
 J.), recognized this regulation as conclusive, in re 
 Jesse G. Grain, December 31, 1897. 
 
 And so it is in all the Executive Departments. In 
 making regulations to carry out a statute it is often 
 necessary to place some express interpretation on it ; 
 and this interpretation holds good until judicially 
 reversed. But, of course, great care should be taken 
 to avoid strained interpretations. 
 
 Many systems of regulations, besides Army and 
 Navy regulations, have been issued, for the transac- 
 tion of the business of different branches of the Gov- 
 ernment, such as the postal, patent office, pension 
 office, land office, Indian office, civil service, customs. 
 
46 
 
 internal revenue, revenue-cutter service," and other 
 treasury and consular regulations, etc. But these 
 systems of regulations, as they are here called, form 
 by no means the whole of that mass of regulation 
 law which constitutes so large and important a part 
 of our administrative law. All regulations are not 
 
 ' The regulations for the government of the Revenue-Cutter 
 Service are in one respect unique : they establish a penal system, 
 including a code of penalties and a system of procedure. No 
 other regulations have ever undertaken to go to this extreme, 
 and it may well be doubted whether the executive power can 
 legally be carried so far. An extract from these regulations is 
 given in Appendix D. 
 
 The regulations of the United States Military Academy do, 
 indeed, also prescribe a system of punishments, certain of which 
 may be imposed by the Superintendent, without the intervention 
 of any trial court, but these are regulations for the control of a 
 school, and stand in this respect on a different footing from the 
 regulations for the government of the Revenue-Cutter Sers-ice. 
 Moreover they are substantially based on statute, except, more 
 particiilarly, in those respects in which the authority for the 
 regulations adopted is the power to prescribe the necessary rules 
 for a public institution peopled with persons whom it is neces- 
 sary to govern and control. They are issued by authority of the 
 President, but, had none been so issued, the Superintendent him- 
 self would have had the power to make such reasonable regula- 
 tions for the government and maintenance of the discipline of 
 the institution as would not be inconsistent with statute or regu- 
 lations emanating from a higher source, and he now actually has 
 the power as to matters necessary to regulate but which have not 
 been covered by prescribed regulations. 
 
 The Superintendent of the Naval Academy has a verj- compre- 
 hensive authority in this respect, which is expressly delegated 
 to him by the Secretary of the Xavy. In the exercise of this 
 authority he issues a complete system of ' ' Regulations for the 
 Interior Discipline and Government of the U. S. Naval Academy," 
 covering subjects which, at the Military Academy, are governed 
 by regiilations " ' adopted by the President. " Both of these Super- 
 intendents, in addition to being in control of schools, are com- 
 manding officers of posts, with the authority appertaining to 
 them in that capacity. 
 
 See note, page 82. 
 
 The regulations for the government of the Revenue -Cutter 
 Service are issued in the exercise of the general executive power 
 of the President, whereas his power to make army regulations 
 
47 
 
 collected together in systems or groups, but an enor- 
 mous mass of them consists of individual regulations, 
 the knowledge of whose existence even is ordinarily 
 limited to the few who have to apply them to the sub- 
 jects to which they relate. 
 
 It is difficult to form a true conception of the vast- 
 ness and importance of all this great body of executive 
 regulation law, controlling, as it does, the admmistra- 
 tion of all the executive departments with its rules ot 
 action And when we consider that these rules of 
 action are in general made, construed, and apphed by 
 the same authority, thus combining quasi-legislative, 
 quasi-judicial, and executive action, we cannot fail to 
 be very much impressed with the extent of the juris- 
 diction covered by them. 
 
 In what has been said only the regulation law ot the 
 federal government has been considered. When we 
 examine the State systems we find there also a great 
 deal of regulation law— not in such large masses, nor 
 in general of such importance as the federal regula- 
 tion law, but nevertheless occupying no insignificant 
 place in the State systems.' JTh^whole^ubject is one 
 
 notWd on legislation is derived from his constitutional author- 
 ftv as commander-in-chief. How far this power would extend 
 weie Co ™?not vested with a superior power over the subjec^t 
 OT if be^i? so vested, it should entirely fail to exercise the power 
 Snd to provide any svstem of government for the Army, it w'ould 
 be difficult to estimate. Would he have a power already exer- 
 cfsecWtii apparently less authorization, in the r™"-lg;«j;/ 
 regulations for the government ot the Revenue-Cuttei beiMce. 
 
 'In many of the States the governors have e^P^ff,«j^^*^,^??_y 
 authority to make regulations for the Soyernmer^ofthema^^^ 
 as for example, in New Hampshire, where The commancler 
 fn chief irauhorized to establish and prescribe such rules 
 regulations, forms, and precedents as he may decern ^ovev^^^ 
 the use government, and instruction of the New Hampshiie 
 National Guard," and "to make such changes and alterations m 
 
48 
 
 of exceptional interest, and offers an enormous field 
 for investigation. 
 
 The Supreme Court lias repeatedly recognized the 
 legality and force of Army regulations : 
 
 ' ' The Army regulations, when sanctioned by the 
 President, have the force of law, because it is done by 
 him by the authority of law. The regulations of 1825, 
 then, were as conclusive upon the accounting officer 
 of the Treasury, whilst they continued in force, as 
 those of 1836 afterwards were, and as those of 1841 
 now are. When, then, an officer presents with his 
 account, an authentic document or certificate of his 
 having commanded a post or arsenal, for which an 
 order has been issued from the War Department, in 
 conformity with the provisions of the Army Regula- 
 tions, allowing double rations, his right to them is 
 established, nor can they be withheld without doing 
 him a wrong, for which the law gives him a remedy." 
 (United States v. Freeman, 3 How., 567.) 
 
 "As to the Army regulations, this court has too 
 repeatedly said that they have the force of law to 
 make it proper to discuss that point anew." (Gratiot 
 V. United States, 4 How., 118.) 
 
 such rules and regulations from time to time as he may deem 
 expedient ; but such rules and regulations shall conform to this 
 act, and to those governing the United States Army, and shall 
 have the same force and effect as the provisions of this act. " 
 
 In Michigan a "State military board" is created, with power 
 ' ' to prepare and promulgate all articles, rules, and regulations 
 for the government of the State troops, not inconsistent with the 
 laws of the United States, or of this State, and which articles, 
 rules, and regulations, when approved by the commander in chief, 
 shall be in force. " 
 
 Some of the States have no military regulations of their own, 
 but use the United States Army Regulations, so far as applicable. 
 
49 
 
 "The power of the Executive to establish rules and 
 regulations for the government of the Army is un- 
 doubted." (United States v. Eliason, IG Pet., 301.) 
 
 "The Army Regulations derive their force from the 
 power of the President as commander-in-chief, and 
 are binding upon all within the sphere of his legal 
 and constitutional aiithority." (Kurtz v. Moffitt, 115 
 U. S., 503.) See also Swaini v. United States, 165 
 
 U. S., 553.' 
 
 With reference to Navy regulations, issued under 
 section 1547 of the Revised Statutes, Attorney Gen- 
 eral Devens said that what Congress had conferred 
 on the Secretary of the Navy was not any portion of 
 its general power of legislation, but only the right to 
 make appropriate regulations for the performance of 
 their duties by those whom Congress had placed 
 under his official control. But if it is true that the 
 source from which the President derives his authority 
 to make regulations is statutory, in the absence of 
 statute he would have no authority, and this we 
 know not to be so. There is no similar existing pro- 
 vision of law relating to the Army, but the power 
 of the President to make regulations for the Army is 
 unquestioned. 
 
 ' See also United States v. Landers, 92 U. S., 77; ex parte Reed, 
 100 U. S., 13; United States r. Svnonds, 120 U. S.. 46; and Am. 
 andEng. Enc. of Law, " Military Law— Army Regulations. " 
 
 13190 1 
 
CHAPTER III. 
 
 APPROVAL OF REGULATIONS BY CONGRESS. 
 
 An impression lias existed that a peculiar "force of 
 law" is given to regulations by their approval by Con- 
 gress, but it seems to be an erroneous one. If, as above 
 stated, the making of regulations is within the juris- 
 diction both of Congress and the President, but the au- 
 thority of Congress is superior to that of the President, 
 it follows that when regulations are approved by Con- 
 gress they can not be altered by him until the aj)proval 
 is removed. To this extent regulations approved by 
 Congress may be said to have a superior force of law 
 to those not thus approved, but this is not the errone- 
 ous impression referred to. Precisely what it is, is 
 not clear, but it seems to have been believed that the 
 approval of regulations by Congress makes them of 
 higher obligation. This, however, is not true. 
 Whether approved by Congress or not, they have, so 
 long and so far as they are in force, the force of law, ' 
 and are therefore binding. The distinction, in this 
 resx^ect, that has sometimes been made between regu- 
 lations approved by Congress and those not thus ap- 
 proved is misleading, 
 
 'Gratiot v. United States, 4 How., 118; United States r. Bar- 
 rows. 24 Fed. Cases, 1018; United States v. Wade, 75 Fed. Rep., 
 261 ; McCall's Case, 2 Phila. , 269 ; and other authorities cited ante, 
 and in Winthrop's Military Law, vol. 1, p. 20, note 2. 
 
 (51) 
 
52 
 
 Congress has on several occasions given its sanction 
 to Army regulations : 
 
 1. An act of March 3, 1813 (2 Stat. L., 819), pro- 
 vided, " That it shall be the duty of the Secretary of 
 the War Department, and he is hereby authorized, to 
 prepare general regulations, better defining and pre- 
 scribing the respective duties and powers of the several 
 officers in the adjutant general, inspector general, 
 quartermaster general, and commissary of ordnance 
 departments, of the topographical engineers, of the 
 aids of generals, and generally of the general and 
 regimental staff; which regulations, when approved 
 by the President of the United States, shall be 
 respected and obeyed, until altered or revoked by the 
 same authority. And the said general regulations, 
 thus prepared and approved, shall be laid before Con- 
 gress at their next session." 
 
 A system of regulations was laid before Congress, 
 as required by the act. It was published (together 
 with the statutes relating to the military establish- 
 ment) in book form, from the Adjutant and Inspector 
 General's Office, May 1, 1813, and may also be found 
 in Vol. I of the American State Papers on Military 
 Affairs. 
 
 2. By act of April 24, 1816 (3 Stat. L., 298), it was 
 prescribed "that the regulations in force before the 
 reduction of the Army be recognized, as far as the 
 same shall be found applicable to the service, subject, 
 however, to such alterations as the Secretary of War 
 may adopt, with the approbation of the President." 
 The reduction referred to was made in June, 1815, 
 pursuant to an act of March 3. 
 
53 
 
 The act of April 24, 1810, did not relate to any par- 
 ticular code of Army Regulations, but to all the regu- 
 lations which were in force. 
 
 3. As stated in some brief remarks on the differ- 
 ent editions of Army Regulations, made on a former 
 occasion : 
 
 On the 22d December, 1819, the House of Represen- 
 tatives resolved that "the Secretary of War be 
 instructed to cause to be prepared and laid before this 
 House, at the next session of Congress, a system of 
 martial law, and a system of field service and police, 
 for the government of the Army of the United States." 
 
 On the 22d December, 1820, the Secretary of War 
 (Calhoun) accordingly submitted a system of "mar- 
 tial law," prepared by Judge- Advocate Major Storrow 
 (which was never adopted), and a system of field serv- 
 ice and police, which had been prepared by General 
 Scott, and submitted to the War Department in Sep- 
 tember, 1818.' ^ 
 
 ' General Scott, in submitting his code, said : . . ' , 
 
 " T have the honor to inclose, herewith, the analysis of a work 
 long since projected by me. The accomplishment of some simi- 
 lar design seems an important desideratum in our code of military 
 instruction or legislation. But, on this point, the analysis, com- 
 pared with existing regulations, will best speak for itself. I can 
 only say that the formation of it has cost me much study and 
 reflection, aided by the experience of a ten years' service, m peace 
 and in war, in the line and in the staff, in the infantry and m the 
 
 artillery. , ■, ■ -n i, • 
 
 "When in Europe I collected every work, m French or m 
 English, (not obsolete) on the service, police, discipline, instruc- 
 tion and administration, of an army. These have been carefully 
 read and collated, and, under the sanction of the War Depart- 
 ment, I am now ready to compile a book, to correspond with the 
 several articles of the accompanying analysis; taking, as a basis, 
 our own laws, regulations, orders, and practice, as far as the 
 paucity of the materials may suflBce. . . 
 
 "Should the idea of a Board occur, in connection with this 
 offer, I would beg leave to suggest, that, joint labors, ot the 
 
54 
 
 December 26, 1820, the Speaker laid tliem before 
 the House. The document was in manuscript and 
 was ordered to be j^rinted, and a copy laid upon the 
 desk of each member. (It is reprinted in the third 
 volume of the State Papers on Military Affairs.) 
 When the book was printed several copies were sent 
 to General Scott, who made certain corrections, and 
 on the 20th February, 1821, returned a corrected copy 
 (of which he retained a duplicate) to the War Depart- 
 ment for the Committee of the House. It was re- 
 ceived by the chairman of the Committee on the 23d 
 of February^ 1821. 
 
 February 27, 1821, the chairman of the Military 
 Committee of the House reported the Senate bill, ' ' To 
 reduce and fix the military peace establishment," with 
 certain amendments, among which was the addition 
 of a section approving and adopting "the system of 
 
 literary kind, but rarely siTCceed ; and that I have, personally, a 
 repugnance to that sort of employment, which nothing but a 
 positive order could induce me again to forego. Indeed, I am 
 persuaded (and from a personal experience somewhat in point) 
 that, of five individuals, of equal qualifications, either might 
 make a better book than the five taken together. " 
 
 "Perhaps it might be well to give the titles, etc., of the works 
 from which I should expect to compile ; but, as this might also 
 seem ostentatious, without a more apparent necessity, I will, at 
 present, confine myself to the mention of the two following, 
 which are the principal : 
 
 "1. 'Legislation Militaire, ou recueil methodique et raisonne 
 des lois, decrets, arretes, reglemens et instructions actuellement 
 (1812) en vigueur, sur toutes les branches de I'etat militaire, ' par 
 Berriat, etc., five large 8vo volumes, pp. 2509. Notwithstand- 
 ing the title and the bulk of this manual of the French army, it 
 does not contain, except by reference, a syllable of the tactique 
 of the several corps. 
 
 "2. 'General Regulations and Orders for the Army;' edition 
 of 1813 ; pp. 326, in 8vo. The British manual, like that above, 
 merely refers to the regulations on tactics. In the execution of 
 the work now proposed, similar references would, occasionally, 
 be necessary." 
 
55 
 
 General Regulations for the Army, compiled by Major- 
 General Scott." The bill, including this (the four- 
 teenth) section, became law 3farch 2, 1821. Early in 
 that month, General Scott received directions to put 
 the book to press for the use of the Army, and, hav- 
 ing received a letter from the chairman of the Mili- 
 tary Committee of the House, informing him that the 
 corrected copy had been received and section 14 added 
 to the Army bill by way of amendment, he caused 
 the book to be reprinted from his retained duplicate 
 corrected copy. 
 
 The Regulations were then— July, 1821— issued by 
 the War Department, ivith the corrections, as "form- 
 ally approved by Congress," except as to fourteen 
 articles, which, it was stated in an order of Secretary 
 of War Calhoun, prefacing the work, had received 
 the sanction of the President. 
 
 This gave rise to the question. Was the corrected 
 copy the one approved by Congress? In 1823, a com- 
 mittee of the House of Representatives was appointed 
 to investigate the circumstances attending its publi- 
 cation. Gen. Alexander Smyth, the chairman of the 
 Military Committee, stated that when he proposed 
 section 14, of the act of 1821, to the committee as an 
 amendment, he had reference to the corrected Regu- 
 lations which he had then received, and that he did 
 not recollect exhibiting them to the committee, but 
 thought he had, and believed that when he reported 
 the amendments to the House, he had the corrected 
 copy and deposited it with the Clerk with the intent 
 that from that copy the system should be i^ublished. 
 These recollections were not, however, sustained by 
 the other members of the committee nor by the Clerk 
 
66 
 
 of the House, None of tliem apparently had ever 
 seen the corrected copy before the passage of the law, 
 but the Clerk of the House thought he had seen it 
 subsequently, when General Smyth made a return to 
 him of various papers which had been before the 
 committee, and he refused to receive it, not consider- 
 ing himself the proper repository. Search had been 
 made in his office, but it could not be found. 
 
 The select committee reported that it was an act 
 of omission, and not of design, on the part of the 
 chairman of the Military Committee in not submit- 
 ting the corrected copy to the committee. 
 
 The committee reported. May 6, 1822,' and Congress 
 immediately passed an act — which was approved May 
 7 — repealing the fourteenth section of the act of 1821. 
 
 General Gaines was accused by General Scott with 
 being instrumental in raising the opposition to these 
 regulations. 
 
 4. By an act of Congress of July 28, 1866, the 
 Secretary of War was directed to have prepared, and 
 to report to Congress, at its next session, a code of 
 regulations for the government of the Army and of 
 the militia in actual service, including rules for the 
 government of courts-martial, the existing regula- 
 tions (those of 1863) to remain in force until Congress 
 should have acted on such report — not, as it has been 
 erroneously stated, until Congress should otherwise 
 provide. 
 
 It was said by the Court of Claims (13 Ct. Cls., 6), 
 and repeated by Attorney General Brewster, that 
 
 ' For the report of tliis committee (containing General Scott's 
 explanation), see American State Papers, Vol. XIII, p. 432. 
 General Scott's explanation is given in Appendix E. See also 
 Wintlirop's Military Law and Precedents, p. 23. 
 
57 
 
 under the act of 18GG a report of a code of regulations 
 for the government of the Army was made but not 
 acted on. This was evidently a mistake ; a system of 
 regulations was prepared by a board consisting of 
 Generals Sherman, Sheridan, and Augur, but it does 
 not appear to have been submitted to Congress. A 
 revision of the Articles of War was reported, but not, 
 it would seem, a code of regulations. 
 
 The act of 1866 was construed by the Court of 
 Claims, the Attorney General, the Second Comp- 
 troller, and Secretary of War Belknap' to have had 
 the effect of an adoption by Congress of the regula- 
 tions of 1863, but there has been little agreement as 
 to how long the regulations so adopted remained in 
 force. The legislation has sometimes been regarded 
 as repealed by the repeal x)rovisions (section 5596) 
 of the Revised Statutes, if not already superseded by 
 the act of July 15, 1870, which again provided for the 
 preparation of a system' of regulations, to be reported 
 to Congress "at its next session." It has also been 
 held that the regulations of 1863 remained in force, by 
 
 iJn submitting to Congress, February 17, 1873, a system of 
 regulations prepared in accordance with the provisions of an act 
 of Jiily 15, 1870, Secretary Belknap said: "The regtilations then 
 and now in force are those of 1863. They are ten years old, and 
 no longer adapted to the condition of Army affairs, but under 
 the act of 1866 it is impossible for the Executive to change them. 
 The length of a letter on a knapsack, for example, bemg pre- 
 scribed therein, the Executive has no power to alter its size until 
 Congress shall authorize it, and the regulations now presented 
 will be subject to precisely the same objection, and if they are to 
 be made law, not to be altered or amended save by act of Con- 
 gi-ess, there are many provisions that it would be wise not to pre- 
 sent, as experience may show that alterations may be necessary. 
 The Secretary of War, therefore, earnestly recommends to Con- 
 gress that, if formally approved by that body, they be made 
 subject to such alterations as the President may from time to 
 time adopt. " 
 
58 
 
 virtue of the legislation of 1866, until superseded by 
 the regulations of 1881, issued under the act of July 
 23, 1879, authorizing the Secretary of War to cause 
 all the regulations of the Army and general orders 
 then in force to be codified and published.' And they 
 have been treated as in force subsequently to this. 
 According to Second Comptroller Maynard, in 1886 
 (Dig. Opin, Second Comptroller, VIII, sec. 867), and 
 the Court of Claims, in 1888 (23 Ct. Cls., 461), they 
 were in force at those dates, by virtue of the legisla- 
 tion of 1866. 
 
 Two codes of regulations have been issued since 
 then, but not under any act of Congress." If, there- 
 fore, the regulations of 1863 were in fact in force, by 
 legislative adoption, at the time of the issue of the last 
 two codes (1889 and 1895), as they were if the Second 
 Comptroller and the Court of Claims were correct, 
 they were not legally alterable by the later codes, and 
 are not legally alterable by executive action now, and 
 all the actual alterations of rules that have been thus 
 in fact made are invalid, and the regulations of 1863 
 are still legally in force. But they were not. 
 
 The legislation of 1866 was undoubtedly repealed 
 by section 5596 of the Revised Statutes, if it was in 
 force up to the date of their enactment. That it was 
 repealed by the legislation of 1870 does not appear to 
 be true, because the provisions of the latter never 
 took effect. But it would seem to have expired by 
 virtue of its own terms at the end of the second ses- 
 sion of the Thirty-ninth Congress, when the report 
 
 ' Attorney General Brewster, 17 Opin., 463. 
 
 ^ The legislation of 1875, hereafter described, considered by the 
 light of its history, is believed to have been carried out, and satis- 
 fied by the promulgation of the regulations of 1881. 
 
59 I 
 
 1 
 
 called for not liaving been made, and it being no longer 
 possible to make it at that session, as required, the 
 legislation became inoperative. The regulations of 
 1863 existed from that time on (and, if not, certainly 
 after the enactment of the Revised Statutes) as an 
 ordinary executive code, not stamped with legislative 
 adoption, but liable to be superseded, and m fact 
 superseded, by the first code issued thereafter. 
 
CHAPTER IV. 
 
 THE DIFFERENT EDITIONS OF ARMY REGULATIONS. 
 
 The following informatiou with reference to the 
 different editions of Army Regulations, although but 
 a brief sketch of the history of their adoption, will, 
 it is believed, present the matter in a form convenient 
 for future use. 
 
 Prior to the adoption of the Constitution, Congress 
 (which then constituted the Government) provided, 
 from time to time, for regulations for the Army, prin- 
 cipally for the government of the staff corps. In some 
 cases the Board of War, then consisting of civilians, 
 was directed to make regulations. (2 Journals of 
 Congress, 432, 520; 3 id., 328.) In others, chiefs of 
 the different corps were so authorized ; as the Quar- 
 termaster General, for certain classes of his employees 
 {id., 126; 3 id., 253, 496) ; the Inspector General (3 id., 
 203, 523, 525) ; the Director of Military Hospitals {id., 
 527) ; and the Medical Board {id., 705). The Secretary 
 of War, after one was appointed by Congress, was, in 
 addition to his general duties, required to ' ' regulate, " 
 or "direct," as to certain special subjects — as the mak- 
 ing of payments and returns and keeping of accounts 
 by regimental paymasters (4 Journals, 7), the making 
 and transmitting of returns by officers generally {id., 
 
 (61) 
 
62 
 
 9), and the duties of fhe commissary general of 
 prisoners (id.).^ 
 
 In 1779 (March 29) the Continental Congress adopted 
 certain "Regulations," to "be observed by all the 
 troops of the United States." These had been pre- 
 pared by Baron Steuben, and were published in the 
 same year as "Regulations for the order and discipline 
 of the troops of the United States." They were, for 
 the greater part, a system of tactics and rules for the 
 camp and on the march, but contained " Instructions" 
 for the different regimental officers and enlisted men. 
 Another edition of these "Regulations " was published 
 in 1809, by M. Carey, of Philadelphia. 
 
 On the increase of the Army in 1798, in contempla- 
 tion of war with a foreign power. President Adams 
 issued manuscript regulations, supplemental to Baron 
 Steuben's, containing many rules jirescribing duties 
 of the different grades of officers and enlisted men in 
 service, and particularly as to the administration in a 
 garrisoned post or barracks. 
 
 In 1808 a little volume containing the Articles of 
 War and certain regulations with reference to allow- 
 ances and promotion was published in Washington — 
 apparently by authority — by ' ' Dinsmore and Cooper. " 
 
 Many of the regulations in force at the beginning 
 of the year 1810, and which had been issued at different 
 times since 1797, in the form of General and Executive 
 Orders, are given in Duane's Military Dictionary.^ 
 
 ' Winthrop's Military Law, p. 21, note 3. And see, generally, 
 the subject of "Regulations for the Army," as discussed by this 
 author. 
 
 ■^ In this work (published in Philadelphia in 1810) it was said: 
 ' ' There is no coherent or consistent system of regulations in 
 existence for the military establishment of the United States. 
 
63 
 
 In 1812 the statutes relating to the military estab- 
 lishment and the existing regulations relating to allow- 
 ances, promotion, and the duties of the staff were col- 
 lected together and published in book form. These 
 regulations are also to be found in the appendix to 
 Maltby on Courts-Martial. 
 
 The regulations of 1813 have already been men- 
 tioned. They may be regarded as the first of our 
 series of codes of Army Regulations, the preceding 
 publications, of 1808 and 1813, making no pretense to 
 the establishment of a complete system, but merely 
 
 The economy of military arrangement is as essential as the dis- 
 cipline of the field, to assure the effects of military operations. 
 There should be a well digested system of regulations, and upon 
 that system should be engrafted a staff, susceptible of adaptation 
 to the peace or the war establishment, to the smallest or the 
 largest force. The French have derived the greatest advantage 
 from their regulations, which have been formed by a well digested 
 body of principles adapted to all circumstances, and the enforce- 
 ment and execution of which is always distinctly appropriated 
 to the proper officers of the staff. At present the regulations ot 
 the United States Army is confined to a few general orders from 
 the War Department, on detached points of service ; and of occa- 
 sional orders of the commander-in-chief, issued upon some exi- 
 gency, at remote periods, and adopted into permanent use. In 
 many instances these regulations have been altered by the War 
 Office, in others the circumstances which gave rise to them have 
 ceased and the regulations become obsolete or inappropriate. 
 In 1810, an attempt was made, by the establishment of a Quarter- 
 master General's Office, to commence something like a system ; 
 should this be accomplished it may be beneficial, though the 
 want of information in the duties of a staff, particularly if those 
 heretofore arranged under the Quarteniiaster General's Depart- 
 ment alone are to be adopted, that it is to be feared the system 
 may remain defective, should the old English model, now exploded 
 by the British themselves, be kept in view instead of the more 
 enlarged system introduced in modern wars. The treatise on the 
 staff by Grirnoard, contains the best body of regulations extant. 
 It has' been translated and will form a part of the American 
 Military Library. . 
 
 " The following are among the principal regulations m torce 
 at the beginning of the year 1810: " 
 
 [Then follow the regulations referred to.] 
 
64 
 
 republishing a few existing regulations. The greater 
 part of this publication is, however, also taken up with 
 a republication of statutes. The part of it devoted to 
 regulations would not equal 20 pages of our present 
 Regulations. 
 
 Editions of Army Regulations were also issued in 
 1814, 1816, 1817, and 1820. Those of 1817 and 1820 
 were republications of the edition of 1816, with the 
 addition of regulations issued by the War Department 
 subsequently. These Regulations may be found in the 
 Library of Congress. Another edition Avas published 
 in 1815, by Webster & Skinners, of Albany, New York, 
 but this was not an authorized edition. 
 
 An edition was also issued in 1821, under the cir- 
 cumstances already described. 
 
 The next edition was that of 1825. It was a revis- 
 ion by General Scott of his Regulations of 1821.' 
 
 In 1834 a system of general regulations for the 
 Army was published by Francis P. Blair, of Wash- 
 ington. A copy of it is in the War Department 
 Library. It was not an authorized edition, but seems 
 substantially to coincide with that which was pub- 
 lished in 1835 by authority and is known as the 
 
 > A number of important regulations were published in 1833, 
 in Order, No. 48, of tbat year— "The 48th Connnandmant, " as it 
 seems to have been called. (Military and Naval Magazine, Sep- 
 tember, 1834.) In an article copied into this magazine from the 
 ' 'American Quarterly Review, " in 1833, it was said : ' ' Under the 
 presidentship of Mr. Monroe, and the secretaryship of Mr. Cal- 
 houn, a new era was formed in our national defence, the bene- 
 ficial influences of which will continue to be felt as long as we 
 are a free nation. Our present system of accountableness and 
 responsibility was then established. * * * From that period 
 the War Department has held a new rank in the Cabinet, and 
 assumed a corresponding elevation in popular opinion. Pre- 
 viously, it had been regarded merely as the headquarters of the 
 Army. " 
 
65 
 
 Macomb Regulations, having- been revised by General 
 Macomb. Some amendments to these were made in 
 an order from the War Department, dated December 
 31, 1836, in which it was declared that the General 
 Order prefixed to the Regulations of 1835 had never 
 been promulgated, nor been in force, and directing 
 the page containing it to be canceled, and the order 
 of December 31, 1836, to be inserted in its place. 
 
 Another edition of Army Regulations was issued in 
 1811, and a revision by Gen. E. D. Townsend in 1847. 
 
 The next edition was that of 1857, when Jefferson 
 Davis was Secretary of War, and sometimes, on this 
 account, called the " Jeff. Davis Regulations." Tra- 
 dition seems to connect Gen. Don Carlos Buell with 
 the preparation of these Regulations, but there is no 
 
 record of it. 
 
 The Regulations of 1817 contained the following 
 
 article: ^„ ^ 
 
 ARTICLE X. 
 
 THE COMMANDER OF THE ARMY. 
 
 IS The military establishment is placed under the 
 orders of the Major-General Commanding-in-Chief, 
 in all ^hat regards its discipline and military control. 
 Its fiscal arrangements properly belong to the admin- 
 istrative departments of the staff, and to the Treasury 
 Department under the direction of the Secretary ot 
 
 War. 
 
 49 " The General will watch over the economy of 
 the service, in all that relates to the expenditure ot 
 money, supply of arms, ordnance, and ordnance- 
 stores, clothing, equipments, camp-equipage, medical 
 and hospital stores, 1 )arracks, quarters, transportation, 
 fortifications. Military Academy, pay and subsist- 
 ence—in short, everything which enters into the ex- 
 penses of the military establishment, whether personal 
 
 131'JO- 
 
6(3 
 
 or national. He will also see that the estimates for the 
 military service are based npon proper data, and made 
 for the objects contemplated by law, and necessary to 
 the dne support and useful employment of the Army. 
 In carrying into effect these important duties, he 
 will call to his counsel and assistance the staff, and 
 those officers proper in his opinion to be employed in 
 verifying and inspecting all the objects which may 
 require attention. The rules and regulations estab- 
 lished for the government of the Army, and the laws 
 relating to the military establishment, are the guides 
 to the Commanding General in the performance of 
 his duties. 
 
 This article (and General Scott laid stress on the 
 fact that it was drawn up with care under the eye of 
 Secretary Marcy, and approved by President Polk 
 during his absence in Mexico) was omitted from the 
 Regulations of 185T, and a bitter attack on the Secre- 
 tary of War by General Scott followed. An account 
 of the controversy which thus arose, as well as of the 
 circumstances that led up to it, is given in a paper 
 by Mr. W. A. DeCaindry, on "The establishment of 
 the War Department as one of the Executive Depart- 
 ments of the United States Government, with a 
 general view of its interior organization and adminis- 
 tration," published in 1878, as an appendix to the 
 report of the Joint Committee of Congress on the 
 Regulations of the Army. General Fry, in his work 
 on brevets, gives a copy of General Scott's objections 
 to the Regulations of 1857, and of Secretary Floyd's 
 reply, in which hitter occurs the following passage : 
 
 The failure to insert in the new regulations a defini- 
 tion of the duties and authority pertaining to the office 
 of Commander in Chief of the Army, which was con- 
 tained in the old regulations, I am satisfied, does not, 
 
67 
 
 in any degree, take from it any power, antliority, lionor 
 or command conferred npou that liigli office by law. 
 Definitions are always difficult, sometimes impossible. 
 The definitions in the old regnlations, attempting to 
 define the duties of the principal officers of the Army, 
 are not, in my judgment, satisfactory ; and I think the 
 new regulations wisely follow the example set by those 
 which you prepared in 1825, in which no definitions 
 were attempted." 
 
 The regulations in question were never restored. 
 The Regulations of 1861 were a repetition of those of 
 1857, with, however, some modifications. There is a 
 remarkable lack of information in the War Depart- 
 ment in regard to the preparation of this code. 
 
 The Regulations of 1863 were prepared by General 
 Breck, and were issued under the authority of Secre- 
 tary of War Stanton. They contain the previous Army 
 Regulations of 1861, except an entirely new regulation 
 for the Subsistence Department, which was approved 
 separately; and they omit those for the Engineer 
 Department, and are supplemented by an appendix 
 containing "changes and additions to the Army Reg- 
 ulations up to June 25, 1863." As this was not a com- 
 plete revision of the regulations, Mr. Stanton preferred 
 to leave the original order (of the Regulations of 1861) 
 for its observance in the new edition, and to publish 
 it as the Regulations of 1861, with the additions above 
 described. 
 
 The legislation of 1866, as affecting the Regulations 
 of 1863, has already been discussed. This legislation 
 required the Secretary of War to have prepared and 
 to report to Congress at its next session a code of reg- 
 ulations for the government of the Army. The draft 
 
68 
 
 of a code was prepared by General Townsend, and 
 was submitted to a board convened in December, 1867, 
 consisting of Generals Sherman, Sheridan, and Augur. 
 In February, 1868, the board reported the completion 
 of their duties, and submitted the regulations, revised 
 by them, and approved by General Grant. June 12, 
 1868, General Schofield, Secretary of War, made a 
 communication to Congress, in which he said : 
 
 ' ' A very carefully prepared system of Regulations 
 for the Army and Militia is now in my hands awaiting 
 the action which may be taken on the Rules and Arti- 
 cles of War, with a view to making any alterations in 
 them which may be required if the said Rules and 
 Articles should be changed. 
 
 "In my judgment, however, it would be unwise to 
 subject a code of General Regulations for the Army 
 to the formal action of Congress, thus giving them a 
 fixed character, unalterable except by the same formal 
 action. All matter in the Regulations which should 
 properly be bound by force of law is actually made 
 in exact conformity with military acts of Congress, 
 and is always, when practicable, in the precise lan- 
 guage of the laws. But there are very many matters 
 of detail which depend upon the daily changing neces- 
 sities of the service, and are regulated by the expe- 
 rience and intelligence of practical men in the Army, 
 which should be left for modification, as often as cir- 
 cumstances demand, to the discretion of the Secretary 
 of War and the President. It is a principle, well un- 
 derstood and invariably acted upon, that whenever a 
 regulation becomes in conflict with a law of Congress, 
 it is null and void. The law is thus, as it were, a 
 constitution, and regulations are simply the by-laws 
 based thereon. 
 
G9 
 
 '^ The jiutliority to niake alterations in the Regula- 
 tions was vestecfby act of April 24, IS 10, in the Sec- 
 retary of War, with the approval of the President, and 
 has l)een ever since so exercised with this exception, 
 that by an act of March 2, 1821, a system prepared by 
 General Scott, nnder an act of March 3, 1813, "was 
 approved and adopted." But this act of March 2, 
 1821, was repealed, in terms, by an act of May 7, 1822, 
 leaving the act of April 24, 181('., still in operation. 
 The Army Regulations are always public and easy of 
 reference, and Congress can readily at any time cor- 
 rect, by legislation, an objectionable feature which 
 may appear in them. 
 
 "I recommend that so much of section 37, act of 
 July 28, 18G(3, as requires this code of Regulations to 
 be reported to Congress, be repealed. Its several parts 
 have been prepared by officers of the largest experience 
 and greatest familiarity with the operations of their 
 particular branches of the Army, and the whole sys- 
 tem has been very carefully examined, arranged, and 
 harmonized by a board of the first officers in the Army. 
 It has received the approval of General Grant, who 
 has been consulted on all important points." 
 
 No further action was taken with reference to the 
 system of Regulations prepared by the Sherman 
 Board. In submitting it to the Secretary of War, the 
 board remarked : 
 
 "It has been our earnest endeavor to make this sys- 
 tem as simple, plain, and consistent in all its parts as 
 possible, and to make no changes from established 
 usages, except where we were convinced by actual 
 experience that they were necessary to the service. 
 The regulations for the staff departments are all 
 
70 
 
 based substantially on the recommendations of the 
 present heads of departments, save and except that we 
 place all the heads of departments in the same relation 
 to the General of the Army as the law already places 
 him, the General, in relation to the President, the 
 constitutional Commander-in-Chief. We have also 
 endeavored more clearly to define the relative duties 
 of the Secretary of War and the General-in-Chief. 
 Their relative spheres of duty are so important, and 
 harmony of action on their part is so directly reflected 
 by the Army itself, that we think too much impor- 
 tance can not be given to this branch of the subject." 
 The following were the regulations with reference 
 to the duties of the General-in-Chief proposed by this 
 board : 
 
 " 1 . The military establishment is under the orders 
 of the GeneraJ of the Army in all that regards its dis- 
 cipline and military control. Its fiscal arrangements 
 properly belong to the administrative departments of 
 the staff, and to the Treasury Department, under the 
 direction of the Secretary of War. 
 
 " 2. The headquarters of the General of the Army 
 shall be at the city of Washington, and all orders and 
 instructions relating to military operations issued by 
 the President or Secretary of War shall be issued 
 through the General of the Army, and, in case of his 
 inability, through the next in rank. The General of 
 the Army shall not l>e removed, suspended, or relieved 
 from command, or assigned to duty elsewhere than at 
 said headquarters, except at his own request, Avithout 
 the previous approval of the Senate ; and any orders 
 or instructions relating to military operations issued 
 contrary to these requirements shall be null and void ; 
 
71 
 
 and any officer who shall issue orders or instructions 
 contrary to the provisions of this law shall be deemed 
 guilty of a misdemeanor in office ; and any officer of 
 the Army who shall transmit, convey, or obey any 
 orders or instructions so issued contrary to the jDro- 
 visions of this section, knowing that such orders were 
 so issued, shall be liable to imprisonment for not less 
 than two nor more than twenty years, upon conviction 
 thereof in any court of competent jurisdiction. 
 
 " 3. The General will watch over the economy of the 
 service, in all that relates to the expenditure of money, 
 supply of arms, ordnance, and ordnance-stores, cloth- 
 ing, equipments, camp-equipage, medical and hospital 
 stores, barracks, quarters, transportation, fortifica- 
 tions, Military Academy, pay and subsistence — in short, 
 everything which enters into the expenses of the mili- 
 tary establishment. He will see that the estimates for 
 the military service are based upon proper data, and 
 made for the objects contemplated by law, and neces- 
 sary to the due support and useful employment of the 
 Army. He will call to his counsel and assistance the 
 staff, and those officers proper in his opinion to be 
 employed in verifying and inspecting all the objects 
 which may require attention. The rules and regula- 
 tions established for the government of the Arnij^, 
 and the laws relating to the military establishment, 
 are the guides to the General in the performance of 
 his duties." 
 
 The regulation numbered 2 was copied from a pro- 
 vision of the Army Appropriation Act of March 2, 18GT, 
 which, as the President declared in a message to Con- 
 gress, deprived him of his constitutional functions as 
 commander-in-chief, but which he was compelled to 
 
72 
 
 countenance, as "by withholding his signature he would 
 defeat necessary appropriations. The legislation, 
 enacted for a clearly unconstitutional purpose, was 
 repealed in the Army Appropriation Act of July 15, 
 1870, when the iJolitical conditions were changed. It 
 was not, indeed, quietly submitted to by the President, 
 who on the 3d of September, 1867, issued his procla- 
 mation in which officers of the Army and Navy were 
 reminded that in accepting their commissions they 
 incurred the obligation to observe, obey, and follow 
 such directions as they might from time to time 
 receive from the President, (u- the General, or other 
 superior officers set over them, according to the rules 
 and discipline of war, and were enjoined, in this direct 
 manner, to assist and sustain the courts and other civil 
 authorities of the United States in the administration 
 of the laws. 
 
 By an act of July 15, 1870 (16 Stat., 319), Congress 
 prescribed : 
 
 "That the Secretary of War shall prepare a system 
 of general regulations for the administration of the 
 affairs of the Army, which, when approved by Con- 
 gress, shall be in force and obeyed until altered or 
 revoked by the same authority ; and said regulations 
 shall be reported to Congress at its next session : Pro- 
 vided, That said regulations shall not be inconsistent 
 with the laws of the United States." 
 
 Pursuant to this legislation, the Marcy Board was 
 convened July 3, 1871. The members of this Board 
 were Col. R. B. Marcy, J. H. King, and H. J. Hunt, 
 and Majors R. I. Dodge and A. J. Alexander.' During 
 November and December, 1871, and January, 1872, 
 the report of the Board was critically considered by the 
 
73 
 
 Secretary of W:iv, hy wliom Asst. Adjt. Gen. Thomas 
 M. Vincent, as the representative of the Secretary, 
 had been associated with the Board for the pnrpose of 
 a further consideration of tlie proposed system. The 
 system of reguhitions thus finally prepared hy this 
 Board was submitted to Congress by Secretary of 
 War Belknap, February ITth, 187:5 (see Appendix F), 
 and was published as H. R. Report No. 85, Forty- 
 second Congress, third session. On the 13th of May, 
 1874, the Military Committee of the House made a, 
 report on the subject (Appendix G), concluding with 
 a recommendation of the legislation subsequently 
 (March 1, 1875) enacted. It provided: 
 
 "That so much of section twenty of the act approved 
 July fifteenth, eighteen hundred and seventy, entitled 
 'An act making appropriations for the support of the 
 Army for the year ending June thirtieth, eighteen 
 hundred and seventy-one, and for other purposes,' as 
 requires the system of general regulations for the 
 Army therein authorized to be reported to Congress 
 at its next session, and approved by that body, be, and 
 the same is hereby, repealed; and the President is 
 hereby authorized, under said section, to make and 
 publish regulations for the government of the Army 
 in accordance with existing laws." 
 
 In 1876, a compilation was prepared by Capt. K N. 
 Scott, and printed under the following authentication : 
 
 "War Department, July i, 1S7(>. 
 
 "These regulations are a compilation of all rules for 
 
 the government of the Army, which were in force 
 
 January 1, 1876, and are based upon the Army Regu- 
 
 tations of 1863, as altered or amended by orders, cir- 
 
74 
 
 ciilars, decisions, and laws passed since the latter year. 
 Compiled, under the direction of the Secretary of 
 War, by Capt. R. N. Scott, V. S. Army. 
 
 "H. T. Crosby, 
 
 ''Chief Clerk." 
 
 This compilation was printed, but was not published 
 to the Army, and, notwithstanding the foregoing 
 indorsement, was not an authorized code. The rec- 
 ords of the War Department seem to furnish no fur- 
 ther information with regard to the circumstances of 
 its preparation, but it may have been the final arrange- 
 ment of a compilation made by Mr. John Tweedale, 
 which consisted of the Regulations of 1863, brought 
 to date, agreeably to subsequent orders and amend- 
 ments. 
 
 Just a month before this General Sherman had called 
 attention to the necessity of a revision of the Army 
 Regulations, and had recommended that the work of 
 preparing a new code be assigned to General Schofield. 
 Fortunately, he said, the task would be rendered com- 
 paratively light by the fact that two systems of regu- 
 lations had already been prepared and were in print 5 
 one compiled in 18(38-60 by a board consisting of Gen- 
 erals Sherman, Sheridan, and Augur, and the other 
 compiled by the " Marcy Board" in 1873. It would, 
 he thought, be preferable to have a single officer 
 assigned to this work, rather than a board, because a 
 board would be apt to begin de novo and go again 
 over the very ground already well studied by jDre- 
 vious boards. 
 
 General Schofield entered upon this work, agreeably 
 to General Sherman's recommendations, but no system 
 
75 
 
 of regulations prepared by liim was published.' The 
 first five articles of such a system were, however, 
 printed, and referred to heads of staff departments for 
 remark. One of the articles was as follows : 
 
 " The chiefs of the several staff corps, departments, 
 and bureaus of the Army sustain the twofold relation 
 of chiefs of bureaus of the War Department and 
 chiefs of staff to the General of the Army. They act 
 under the immediate direction and control of the Sec- 
 retary of War, in respect to all matters of accounta- 
 bility and administration not immediately connected 
 with military operations; they report directly to and 
 act under the immediate orders of the General in Chief 
 in all matters appertaining to the command of the 
 Army ; they are the repositories of the laws and regu- 
 lations for the government of the military service and 
 of the knowledge which experience in their respective 
 departments affords ; they are the advisers and agents 
 alike of the Secretary of War and of the General m 
 Chief, and upon the proper exercise of their func- 
 tions, in this twofold relation, depends the harmo- 
 nious working of the complex system of military 
 administration and command." 
 
 This was opposed by most of the heads of the staff 
 departments, and was defended by General Schofield. 
 A part of the discussion, including General Schofield's 
 remarks, was published in the above-mentioned report 
 of the Joint Committee on the Reorganization of the 
 Army (of which General Burnside was chairman), as 
 were also the proposed articles which contained the 
 disputed propositions. In the elaborate bill which 
 
 •For General Schofield's recollection of this matter, see Appen- 
 dix H. 
 
76 
 
 was reported by the committee, and wliicli was in- 
 tended, together with certain unchanged chapters of 
 the Revised Statutes, to be a "condensed and complete 
 military code," the general oflacers' view was adopted. 
 On a later occasion the relation of the staff depart- 
 ments to the General in Chief was again the subject of 
 consideration, and on this occasion the Secretary of 
 War (Mr. Lincoln) gave his views at some length on 
 the other side of the question, and decided it accord- 
 ingly.^ 
 
 ■^For another discussion of the subject of the command of the 
 Army, see an article by General Schofield in the Century Maga- 
 zine for August, 1897. See also, "The Command of the Army " 
 in Fry's Miscellanies. 
 
 In Scotfs Military Dictionary, published in 1864. we find the 
 following statement: "Administration and command are dis- 
 tinct. Administration is controlled by the head of an executive 
 department of the government, under the orders of the Presi- 
 dent, by means of legally appointed administrative agents, with 
 or without rank, while command, or the discipline, military con- 
 trol, and direction of military service of officers and soldiers can 
 be legally exercised only by the militarv hierarchv, at the head 
 of which is the constitutional Commander in Chief of the Army 
 Navy, and militia, followed by the commander of the Army, and 
 other military grades created by Congress."' (Title "Adminis- 
 tration;" and see also titles "Regulations" and "Army Regu- 
 lations.") Colonel Scott did not recognize the constitutional 
 power of the President to make Armv regulations. 
 
 In England the powers of the ' ' commander in chief " [/. e the 
 commanding general of the army] were at first much more ex- 
 tensive than they are now ; in fact the King deputed to him all 
 his o\\m military powers in their full effect, and the commander 
 in chief exercised the functions which are now di^-ided between 
 the secretary-at-war and the commander in chief. He could 
 frame articles of war ; he could order out militia : he granted all 
 commis-sions, as well of administrative oflficers as of "others ; he 
 issued wan-ants for pajTuents ; and he prepared the estimates for 
 the establishment. When a secretary-at-war was appointed he 
 was made subordinate to the commander in chief ; in fact the 
 latter was independent of all control but that of the sovereign. 
 and was the sole head and chief of all militarv organization, ad- 
 ministrative as well as disciplinarv. (Walton's History of the 
 British Standing Annv, 166U to 1700.) 
 
77 
 
 About this time, namely, August 15, 1876, Congress 
 passed a joint resolution to the following effect: 
 
 "Whereas the President was, by an act of Congress, 
 approved March first, eighteen hundred and seventy- 
 five, authorized to make and publish regulations for 
 the government of the Army, in accordance with exist- 
 ing laws ; and 
 
 "Whereas by an act of Congress, approved July 
 twenty-four, eighteen hundred and seventy-six, a com- 
 mission was created to which has been referred the 
 whole subject-matter of reform and reorganization of 
 the Army of the United States ; therefore 
 
 ''Reaolved hy the Senate and House of Representa- 
 tives of the United States of America in Congress 
 assembled, That the President be requested to post- 
 pone all action in connection with the publication of 
 said regulations until after the report of said commis- 
 sion is received and acted on by Congress at its next 
 session." 
 
 On the 7th of March, 1878, a bill was introduced in 
 the Senate to provide for a code of Army Regulations. 
 The bill having been referred to the Secretary of War 
 for such suggestions as he might deem proper, Secre- 
 tary of War McCrary said that he adhered to the 
 opinion that the President should be authorized to 
 make and publish regulations for the government of 
 the Army, but if it be required that such regulations 
 should be submitted to Congress, to be by that body 
 approved before being issued, he recommended early 
 action. A copy of Secretary McCrary's remarks on 
 the same subject, in his annual report for 1877, will 
 be found in Appendix I. 
 
78 
 
 On the 15th of August, 1878, the clerk of the Com- 
 mittee on Military Affairs of the Senate transmitted 
 to the Secretary of War a copy of a Senate resolution 
 of June 18th, authorizing a subcommittee, for the pur- 
 pose of considering the revision of the Army Regula- 
 tions, and stated that he had been directed to cooper- 
 ate with the War Dej)artment in every possible way 
 and to report to the committee the revision of the 
 regulations made under the direction of the Secretary 
 of War. But by act of June 23, 1879 (21 Stats., 34), 
 Congress disposed of the whole matter by authorizing 
 and directing the Secretary of War to cause all the 
 regulations of the Army and general orders then in 
 force to be codified and published to the Army, 
 
 The Regulations of 1881 were the outcome of this 
 legislation. In July, 1880, a board was convened for 
 the purpose of examining and reporting upon the codi- 
 fication of the regulations made pursuant to its require- 
 ments. It consisted of Generals McDowell and Meigs, 
 Colonels Sackett, Hazen, and Upton, with Maj. A, 
 H. Nickerson as recorder. General McDowell was, 
 however, almost immediately relieved and General 
 Auger substituted in his stead. The board received 
 the following instructions, communicated to them by 
 the Adjutant General: 
 
 "In submitting the accompanying codification of 
 the laws, regulations, and orders made in pursuance 
 of the requirements of section 2 of an act approved 
 June 23, 1879, the Secretary of War instructs me to 
 say that he desires the board of officers to examine 
 the codification to ascertain whether its parts are 
 consistently arranged ; whether there are inaccuracies 
 resulting from misinterpretation; whether there are 
 
70 
 
 any repetitions or instances where tlie pliraseology 
 may not clearly express the exact meaning, and that 
 there are no contradictions. Wherever these defects 
 are discovered it will be the duty of the board to pro- 
 pose a substitute for the defective paragraph and sub- 
 mit it in its report for the Secretary's action. 
 
 "It is no part of the functions of the board to make 
 regulations, but simply by a careful examination to 
 detect errors and report what changes may be consid- 
 ered requisite for a proper fulfillment of the law under 
 which the codification was made. 
 
 "It is the Secretary's desire that when these regula- 
 tions are published to the Army they shall form as per- 
 fect a code as possible and be so free from errors as 
 not to require correction or immediate modification." 
 On the 13th of September the board was dissolved. 
 In a note at the beginning of the Regulations of 
 1881 it is stated that "the work of codification was 
 confided to the Adjutant General of the Army," and, 
 in fact, the codification submitted to the board by the 
 Adjutant General (Drum) was prepared by Adjutant 
 General Townsend. A characteristic of these regula- 
 tions, and one which makes them still valuable, is that 
 they give the source and authority of the individual 
 regulations. An "Abridged Edition" of them was 
 
 also issued. 
 
 After this no revision of the Regulations appears to 
 have been undertaken until December, 1886, when a 
 board was appointed, consisting of General Bene't, 
 Colonel (now General) Otis, Lieut. Col. R. N. Scott, 
 and Lieut, (now Lieut. Col.) George B. Davis, " for 
 the purpose of revising and condensing the Regula- 
 tions of the Army and preparing a new edition of the 
 
.80 
 
 same." Colonel Scott died two months later. The 
 work of this board finally took the form of the Regula- 
 tions of 1889. 
 
 There remains to be considered only the Regulations 
 of 1895. General Kelton, in December, 1891, called 
 attention to the necessity of a revision, and in Febru- 
 ary, 1892, General Schofield wrote as follows: 
 
 "The need has become urgent of a new edition of 
 the Revised Regulations. The need is not so much 
 for any revision of the existing regulations as for a 
 new publication of the regulations as they now exist ; 
 that is to say, the Regulations of 1889 as revised since 
 their publication. That edition having been very 
 hastily published, and hence very imperfect, it has 
 been amended in so many details and in some cas^ 
 frequently, that a new publication of the regulations 
 as they exist to-day is of vital importance. 
 
 " The revision that has been going on during the 
 last three years, or nearly three years, has involved 
 very great labor and very careful consideration of the 
 several subjects on the part of many officers, includ- 
 ing the chiefs of bureaus, the Commanding General, 
 and the Secretary of War. _ So much of the regula- 
 tions as have been so revised ought, in my judgment, 
 not to be changed without cogent reasons. 
 
 "The revision of regulations is a very delicate work, 
 and in past experience has generally resulted in an 
 exceedingly imperfect code, requiring numerous 
 amendments. Regulations are a matter of gradual 
 growth, and should be preserved as a rule in the form 
 which has resulted from such growth. In some cases, 
 doubtless, obsolete regulations may be eliminated and 
 others may be somewhat simplified, and some which 
 
81 
 
 were carelessly omitted in the last revision should be 
 restored The officer charged with the revision should 
 be instructed to consider very carefully all such ques- 
 tions, consult the chiefs of bureaus of the War De- 
 partment, and after obtaining concurrent views upon 
 each question, submit it for the consideration of the 
 Commanding General, and finally for the approval ot 
 the Secretary of War, before incorporating it m the 
 
 revised edition. 
 
 ' ' In this way, as suggested by the Adjutant General, 
 
 ' a satisfactory work may be accomplished, ready f or 
 
 publication as soon as it is completed and duly 
 
 indexed." ^ r^ ^ i 
 
 This revision passed through the hands of Col. (now 
 Adjutant General) H. C. Corbin, Maj. (now Lieut. Col ) 
 J C Gilmore, and Maj. (now Lieut. Col.) J. B. Bab- 
 cock, constituting a board, and afterwards through 
 the hands of the Adjutant General and the Major 
 General Commanding the Army. Gen. E. S. Otis also 
 went over the work. But the preparation of this 
 revision was finally in charge of the Assistant Secre- 
 tary of War, Maj. (now Lieut. Col.) George W. Davis, 
 and Capt. J. T. French. One of its distinguishing 
 features is that the regulations which relate more par- 
 ticularly to the management of the business of the staft 
 departments, and do not affect the Army at large, are 
 omitted from the general regulations and embodied m 
 separate manuals. Necessarily, however, these man- 
 uals cover a wider field than this would indicate 
 The o-eneral Regulations, with their accompaniment ot 
 manuals, may be regarded as forming the Regulations 
 of 1895. One of these manuals— the Manual tor 
 Courts-Martial— is not, indeed, a staff manual at all. 
 
 131! 
 
82 
 
 but is a general system of rules for the administration 
 of military justice. It is the first of its kind, promul- 
 gated by the War Dej^artment, and is an outgrowth 
 and enlargement of the directions on the subject which 
 it was formerly the practice to issue from the head- 
 quarters of military departments. Regulations, ap- 
 proved by the Secretary of War, had, however, before 
 this been issued by several of the staff departments for 
 their own government. 
 
 The regulations for the United States Military • 
 Academy also emanate from the President's consti- 
 tutional power.' 
 
 ' There can be no doubt, however, that, within limits, the Super- 
 intendent of the United States Military Academy, the same as 
 any olficer in control of a piiblic institution peopled vnih per- 
 sons whose good conduct is intrusted to his charge, may also lay 
 do\Aai riiles or regulations. He does in fact exercise this power 
 in issuing certain orders. A distinction has, indeed, been made 
 between regulations and orders, but it can not be said that there 
 is any essential difference between regulations and general or- 
 ders laying down general rules of action. 
 
 As a good illustration of this power, as vested in superintend- 
 ents of institutions of this character, we may take the various 
 Soldiers' Homes. For these certain regulations are prescribed by 
 statute and others by their boards of managers, necessarily, how- 
 ever, leaving a very considerable residue of matters, princij^ally 
 relating to discipline, to be regulated by the governors of the 
 institutions. It may, of course, sometimes be difficult to decide 
 what the limit of the power is, biit that the power exists seems 
 clear. Without it public institutions of this kind could not be 
 controlled, and therefore could not be managed for the purposes 
 for which they are established. 
 
 Commanding officers of military posts have this power in a 
 marked degree — limited, it is true, in their case also, by statute 
 and regulation of higher authority, but, subject to these, having 
 a distinct, necessary, and unquestioned Jiirisdiction. In this 
 case, however, as also in the case of the Superintendent of the 
 Military Academy, the power is a part of an independent system, 
 namely, the military system. But it is the same kind of power. 
 And it is the same kind of power that is exercised by the school 
 teacher in the maintenance of the discipline of his school. 
 ' ' When no rules and regulations have been prescribed by the 
 
83 
 
 board, the teacher is authorized to make such reasonable rules as 
 sliall best proiuote the welfare of his school and secure order and 
 discipline therein. And even where rnles have been i)rescribed 
 by the board, the teacher may, unless expressly prohibited, make 
 such additional rules and requirements as special cases or sudden 
 emergencies may render necessary." (Meachem on Public Offi- 
 cers, 728. ) And see American and English Encyclopedia of Law, 
 title, "Master and Servant," vol. 14, p. 858. 
 
 Ship cajitains possess this authority in a peculiar degree. 
 Justice Story, discussing the relation of the officers of a ship to 
 the seamen, said : 
 
 • ' The learned counsel for the defendant has asked the court to 
 direct the jury, that the officers of the ship are clothed, not 
 merely with a civil, but with a military power, over the seamen 
 on board. In my judgment, that is not the true relation of the 
 parties. The authority to compel obedience, and to inflict pun- 
 ishment, is, indeed, of a summary character, but, in no just sense, 
 of a military character. It is entirely civil ; and far more re- 
 sembles the aiithority of a parent over his children, or rather, 
 that of a master over his servant or apprentice, than that of a 
 commander over his soldiers. Properly speaking, however, the 
 authority of the officers over the seamen of a ship, is of a peciiliar 
 character, and drawn from the usages, and customs, and necessi- 
 ties of the- maritime naval service, and founded upon principles 
 applicable to that relation, which is full of difficulties and perils, 
 and rec^uires extraordinary restraints, and extraordinary disci- 
 pline, and extraordinary promptitude and obedience to orders. " 
 (United States v. Hunt, 26 Fed. Cases, 435.) 
 
 Commanders of naval vessels possess the power also, and being 
 officers in command of public armed ships they have even greater 
 discretion. (Wilkes r. Dinsman, 7 How. , 89. ) 
 
 In a greater or less degree, according to the conditions, the 
 power to make rules of action or regulations must exist wherever 
 there are rulers and ruled. In military commands the strictest 
 discipline is necessary, and for the purpose of maintaining this 
 discipline a military jurisdiction, or military law, exists, which 
 is quite independent and free from interference within its own 
 special scope. But in a general sense it is certainly true that 
 wherever the relation of ruler and ruled is legally established 
 there must be a power of control, in which, subj'ect to such limi- 
 tations as may legally be imposed, is included the power to make 
 regulations. 
 
CHAPTER V. 
 
 THE INTERPRETATION AND CONSTRUCTION OF 
 
 REGULATIONS. 
 
 " Interpretation is the art of finding ont the true 
 sense of any form of words; that is, the sense which 
 their author intended to convey, and of enabling oth- 
 ers to derive from them the same idea which the author 
 intended to convey." " Construction is the drawing of 
 conclusions respecting subjects that lie beyond the 
 direct expression of the text, from elements known 
 from and given in the text— conclusions which are m 
 the spirit, though not within the letter^^jTth e text. " ' 
 
 1 Legal and Political Hermeneutics, by Francis Lieber, pp. 
 
 ^^'"itterpretation differs from constrnction in that the former 
 is the art of finding oiat the true sense of any form of words 
 tliat is the sense which their anthor intended to convey ; and of 
 enabling others to derive from them the same ide^ ^^^^.^t 
 aShor fntended to convey. Consti^iiction o^^^Jl^^, "^l^^r ^^.^"^^^^^^^ 
 the drawing of conclusions, respectmg subjects that lie beyond 
 t e dhelt expressions of the text, from elements known from and 
 given in the text; conclusions which are in the BPi"t, though 
 S within the letter of the text. Interpretation only takes place 
 S the text conveys some meaning or other. But coiistruction is 
 resorted to when, in comparing two different writmgs of the 
 S^e- fndividual, m- two different enactments by the same legis- 
 iXe body there is found contradiction where there was evi- 
 dentlv no intention of such contradiction one of another, or 
 wherl i?Lpi ens that part of a writing or declaration contradic s 
 S rest When this is the case, and the nature of the document 
 or declaration, or whatever else it may be is f ^^\^.X\ oi- SS 
 us to consider the whole as bemg invalidated by a pai tial oi other 
 contradiction, then resort must be had to construction; so, too 
 if re' uired to act in cases which have not been foreseen by the 
 framers of those rules, by which we are nevertheless obliged, toi 
 ;re Wilding reason, faiffully to ^"eg-late as well as w^^^^^^ 
 action respecting the unforeseen case. (Cooley, Constitutional 
 Limit0.tions, 51.) 
 
86 
 
 ' ' There can be no sound interpretation witliout good 
 faith, and common sense. The object of all interpre- 
 tation and constrnction is to ascertain the intention of 
 the authors, even so far as to control the literal signifi- 
 cation of the words ; for verba ita sunt inieUigenda id 
 res magis valeat quam pereat. Words are, therefore, 
 to be taken as those who used them intended, which 
 must be presumed to be in their popular and ordinary 
 signification, unless there is some good reason for sup- 
 posing otherwise, as where technical terms are used; 
 quoties in verba nulla est ambiguitas, ibi nulla exposi- 
 tio contra verba fienda est. " ' 
 
 The underlying principles of true interpretation and 
 construction apply to all language, in whatever form 
 it may be used, although there are principles applica- 
 ble only to its special uses, as in constitutions, statutes, 
 executive regulations, or contracts. The rules for the 
 interpretation and construction of executive regula- 
 tions closely resemble those for the interpretation and 
 construction of statutes.'' 
 
 1. The first practical question which suggests itself 
 is : Does each new edition of the Army Regulations 
 entirely displace the preceding one, both as to the sub- 
 jects treated of and those omitted ? 
 
 It is a principle of statutory construction that when 
 the legislature makes a revision of a statute, and frames 
 a new statute upon the subject-matter, and from the 
 framework of the act it is apparent that the legisla- 
 ture designed a complete scheme for the matter, it is 
 a legislative declaration that whatever is embraced in 
 
 'Francis Lieber: subject, "Interpretation," Bouvier's Law 
 Dictionary. 
 ^ Devereux, 148. 
 

 the new law shall prevail, and whatever is exckided 
 is discarded.' And this principle is applied to codifi- 
 cations. The general rule seems to be that statutes 
 and parts of statutes omitted from a revision are to 
 be considered as annulled, and are not to be revived 
 by construction.^ The practice with reference to the 
 different editions of Army Regulations has conformed 
 to this principle, each new edition being regarded as 
 intended to be a substitute for the preceding one, 
 and to displace it, both as to matter included in both 
 editions, and matter included in the earlier but not 
 in the later edition. It is the substitution of one com- 
 pilation or system for another.' 
 
 2. What effect has such a new edition on existing 
 orders relating to subjects covered by it, and on orders 
 prescribing regulations not embodied in it ? 
 
 The former, it would seem, are displaced by the new 
 code, but the latter not; it being the understanding- 
 subject to which the code is made— that it does not 
 affect orders relating to subjects not embraced m it, 
 nor in the preceding code. Such a question, for exam- 
 ple is understood to have once arisen with reference 
 to General Orders No. 100, of 18G3 (Instructions for 
 the Government of the Armies of the United States in 
 the Field), and to have been decided in favor of the 
 permanencv of these regulations. 
 
 The non-user of a statute does not repeal it, although 
 it has been said that, on the principle that custom is 
 of o-reat force in the construction of statutes, long and 
 
 1 Bracken r. Smith, 39 N. J. Eq., 169. 
 
 ■^ EBcllich, Interpretation of Statutes, sec. 202. 
 
 ni Opin. Atty. Gen., 463. 
 
88 
 
 uniform disuse might in some cases amount to a prac- 
 tical repeal. This would seem to apply even more 
 strongly to regulations, which are made and executed 
 by the same authority. The circumstances may be 
 such that the long-continued disuse of a regulation 
 would be significant of the understanding of the exec- 
 utive authority that it has become obsolete and 
 inoperative. 
 
 3. The effect of the revocation of an army regula- 
 tion by which a preceding regulation was revoked. 
 
 The principles regulating this differ somewhat from 
 those of statutory construction. The latter have been 
 thus stated : 
 
 ' ' Where an act is repealed, and the repealing enact- 
 ment is repealed by another, which manifests no 
 intention that the first shall continue repealed, the 
 common-law rule was (and in the absence of any stat- 
 utory declaration to the contrary, the general rule still 
 is), that the repeal of the second act revives the first; 
 and revives it, too, ab initio, and not merely from the 
 passing of the reviving act. (The revival of the orig- 
 inal statute is also, in general, the eft'ect of the expira- 
 tion of a repealing statute by its own limitation, or of 
 the suspension of the repealing act ; and it is immate- 
 rial whether the repeal of the rej^ealing act be express 
 or by imj)lication. Moreover, it extends, not only to 
 statutes, but to the common law; so that, where an 
 act superseding in any particular the common-law 
 rule previously applicable is repealed, that rule io held 
 to be revived. The doctrine stated is, however, not 
 without exceptions, founded in the necessity of giving 
 effect to the legislative intent. Thus, it is said that 
 
89 
 
 an absolute affirmative repeal of a statute by a subse- 
 quent one will survive the expiration of the latter by 
 its own limitation; that the repeal of a statute which 
 was a revision of, and which was intended as a sub- 
 stitute for, a former act to the same effect, will not 
 revive the latter, such a result being manifestly con- 
 trary to the intent of the legislature; and that, for 
 the same reason, the repeal of an act "amending 
 another 'so as to read' in a given manner, which oper- 
 ates as a total merger of the amended act in the amend- 
 ing one, cannot revive the original statute.") (End- 
 lich, Interpretation of Statutes, sec. 475.) 
 
 But with reference to Army regulations it would 
 seem to be an established usage that the revocation of 
 a regulation or an order, by which a preceding regu- 
 lation or order was revoked, will not revive these, 
 unless there be some express evidence of such an inten- 
 tion. This usage is no doubt founded on the necessity 
 
 of certainty. 
 
 The revocation of a regulation which is simply 
 declaratory of an established custom of the service 
 would, however, in the absence of words indicating a 
 different intention, doubtless be held to leave the 
 custom in force. For example, a regulation of the 
 Manual for Courts-Martial, which constitutes a part of 
 the Army Regulations, says that the judge advocate of 
 a court-martial swears the witnesses. This is declara- 
 tory of the custom of the service, for the ninety-second 
 article of war, which prescribes the oath to be admin- 
 istered to witnesses, does not say by whom it shall be 
 administered. Undoul)tedly, the revocation of the 
 regulation would leave the custom of the service m 
 force. 
 
90 
 
 4, Expressio unins est exclusio alterius. This rule 
 applies in the construction of the Army Regulations, 
 as well as in the construction of statutes. Where, for 
 example, certain allowances are specified, other allow- 
 ances for the same thing are excluded. Thus, it has 
 been held by the War Department that the very fact 
 that the Army Regulations do not provide for certain 
 allowances claimed, raises a presumption that it was 
 not the intention, when Army Regulations were jjub- 
 lished and promulgated by the direction of the Secre- 
 tary of War, to make such allowances.' 
 
 But, apparently, even in the matter of allowances, 
 a regulation, which has not been approved by Con- 
 gress and is not made pursuant to an act of Congress, 
 may be modified in a particular case, or the case 
 may be taken out of its operation. Thus, it was held 
 by the Assistant Comptroller of the Treasury (Mr. 
 Bowers), with reference to the regulation prohibiting 
 the reimbursement of Army officers who, when chang- 
 ing station, ship and pay for the transportation of 
 their baggage, that " as the regulation Avas made by 
 the Secretary of War, that officer has the power to 
 amend it, or to waive its provisions in particular 
 cases, but so long as the regulation stands as it does, no 
 reimbursement can rightfully be made without the 
 specific waiver of the regulation by the Secretary of 
 War, when shipments are made by officers. " "^ * It is 
 to be observed, however, that the Assistant Comp- 
 troller . did not here make any distinction between 
 regulations made pursuant to, or in execution of, a 
 
 ' Claim of Captain Morton. 
 «3 Dec. Comp. Treas., 305. 
 
91 
 
 statute — in this case an appropriation act — and other 
 regulations. 
 
 5. In construing Army regulations it is often 
 necessary to consider to wliich of the classes named at 
 the beginning of this work they belong; i. e., those 
 which have been approved and adoj)ted by Congress ; 
 those made pursuant to, or in execution of, a statute ; 
 and those made by the President as commander-in- 
 chief, but not falling under either of the other heads. 
 
 (a) Those which have been approved and adopted 
 by Congress. These can not be modified or amended 
 until the Congressional sanction has been removed. 
 (See ante.) 
 
 (h) Those made pursuant to, or in execution of,. a 
 statute. These may be modified or amended, but indi- 
 vidual exceptions to them can not be made. (See ante.) 
 
 (c) Those made by the President as commander-in- 
 chief, and not falling under (a) or {h). These may 
 be modified, and exceptions to them may be made. 
 (See ante.) 
 
 We are ordinarily in the habit of regarding the 
 different paragraphs of the Army Regulations as on 
 the same footing in this resj^ect, that is to say, as 
 having the same degree of immutability ; but this is, 
 for the reason stated, believed to be a mistake likely 
 to lead to faulty action. When we are considering the 
 power of the President to modify, or make an excep- 
 tion to, a regulation, we ought to know to which of 
 the above classes it belongs. 
 
 G. Authentic interpretation and construction. 
 
 " Authentic interpretation is called that which pro- 
 ceeds from the author or utterer of the text himself ; 
 properly speaking, therefore, it is no interpretation. 
 
92 
 
 but a declaration. If a legislative body, or monarch, 
 give an interpretation, it is called authentic, though 
 the same individuals who issued the law to be inter- 
 preted may not give the interpretation ; because the 
 successive assemblies or monarchs are considered as 
 one and the same, making the law and giving the 
 interpretation in their representative, and not in their 
 personal characters. Authentic interpretation, there- 
 fore, need not always be correct, though it has, if 
 formally given, binding power. Still it may be re- 
 versed by a subsequent law." ' 
 
 In 1861 and 1862 the pay of officers of the Army was 
 made up of pay proper and certain allowances, one of 
 which was for a certain number of servants at the 
 rate of pay, etc., of private soldiers. In 1861 the pay 
 of private soldiers was increased, and in 1862 it was 
 enacted that the legislation making this increase 
 "shall not be so construed, after the passage of this 
 act, as to increase the emoluments of the commissioned 
 officers of the Army. " This was an instance of authen- 
 tic legislative construction. Executive construction 
 of regulations is much more common, and is not lim- 
 ited to cases arising subsequently to the construction, 
 but, on the contrary, is applied to existing cases. 
 Because of this, and because there is in general no 
 remedy in the nature of an appeal, it is incumbent 
 on the authority construing the regulation to take 
 great care to construe correctly. 
 
 7. Army regulations, like statutes, are not to be 
 given a retroactive effect unless their language clearly 
 requires it. (United States v. Webster, 28 Fed. Cases, 
 509; United States v. Davis, 132 U. S., 334; Dig. Opin. 
 
 ' Lieber's Hermeneutics, p. 62. 
 
93 
 
 Judge-Advocato General, 168.) We must, however, 
 make an exception to this rule in favor of curative 
 and declaratory regulations, the former being intended 
 to cure matters of form, and the latter being explana- 
 tory of other regulations. But the presumption always 
 is that the intention of the regulation is to lay down 
 a rule for the future. If the intention is to give it a 
 retroactive effect, it must clearly appear. This is 
 applying to executive regulations a familiar rule of 
 statutory construction. 
 
 " It is a proposition too well settled by authority to 
 admit of dispute, or call for extended discussion, that 
 curative acts, especially upon matters of public con- 
 cern, are to be allowed the retroactive effect they are 
 clearly intended to have, even though vested rights 
 and decisions of courts be set aside by them, so long 
 as they do not undertake to infuse life into proceed- 
 ings utterly void for want of jurisdiction, and do not 
 contravene the constitutional provisions against laws 
 impairing the obligation of contracts and ex post facto 
 laws, or any other provision of the particular consti- 
 tution to which the legislature passing them may be 
 subject. The purpose of these sections is merely to 
 point out the effect, upon the construction of such, 
 and acts declaratory of former statutes or rules of 
 law, of the presumption against an intention to legis- 
 late retrospectively, and, possibly, of a constitutional 
 prohibition against retrospective operation in the par- 
 ticular class of cases to which the act is to be applied, 
 coupled with the necessity of giving, if practicable, 
 a lawful and reasonable operation to the expression 
 of the legislative will." (Endlich, Interpretation of 
 Statutes, sec. 291.) 
 
94 
 
 These principles apply, mutatis mutandis, to execu- 
 tive regulations. But it would be a violation of prin- 
 ciples of a mucli liiglier degree of obligation, if they 
 were to be resorted to in disregard of those mentioned 
 in rule 4 and at the beginning of these remarks. Such 
 a violation could not, indeed, be properly regarded as 
 curative or declaratory. 
 
 8. The Army Regulations are, as the order of pro- 
 mulgation by the Secretary of War announces, "Reg- 
 ulations for the Army." Their provisions would not 
 relate to the business of the War Department, unless 
 it should expressly appear that such is the intention. 
 Thus, it was held that paragraph 670, Army Regula- 
 tions, only relates to the public property in the custody 
 of the military establishment, and does not relate to the 
 property held by the War Department proper, which 
 is a civil institution, (piite distinct from the military, 
 and to which, in the absence of express words to that 
 effect, the regulation mentioned does not apply. (Opin. 
 Judge-Advocate General, January 10, 1898.) 
 
 9. Executive regulations are not in general imj)era- 
 tive, so as to render actually invalid acts provided for 
 by the regulations, but done without a compliance 
 witli their requirements. They are in general direc- 
 tory only. In this respect they resemble statutory 
 rules for the performance of public duties. To affect 
 with invalidity acts done in neglect of such rules 
 would work serious general inconvenience or injustice 
 to persons who have no control over those intrusted 
 with the duty, without promoting the essential aims 
 of the legislature. In such case, they are said not to 
 be of the essence, or substance of the thing required ; 
 and, dejjending upon this quality of not being of the 
 
95 
 
 essence or substance of the thing required, conii)liance 
 being rather a matter of convenience, and the direc- 
 tion being given with a view simply to proper, orderly, 
 and prompt conduct of business, they seem to be gen- 
 erally understood as mere instructions for the guid- 
 ance and government of those on whom the duty is 
 imposed, or, in other words, as directory only. (End- 
 lich on Interpretation of Statutes, sec. 436.) 
 
 In general, statutes directing the mode of proceed- 
 ing by public officers are deemed advisory, and strict 
 compliance with their detailed provisions is not indis- 
 pensable to the validity of the proceedings themselves, 
 unless a contrary intention can be clearly gathered 
 from the statute construed in the light of other rules 
 of interpretation. {Id., sec. 437.) 
 
 A provision in a statute, rule of procedure, or the 
 like, is said to be directory when it is to be considered 
 as a mere direction or instruction of no obligatory 
 force, and involving no invalidating consequence for 
 its disregard, as opposed to an imperative or manda- 
 tory provision which must be followed. The general 
 rule is that the prescriptions of a statute relating to 
 the performance of a public duty are so far directory 
 that, though neglect of them may be punishable, yet 
 it does not affect the validity of the acts done under 
 them, as in the case of a statute requiring an officer 
 to prepare and deliver a document to another officer 
 on or before a certain day. (Black's Law Dictionary.) 
 
 Many statutory requisitions, intended for the guid- 
 ance of officers in the conduct of business, do not limit 
 their power or render its exercise in disregard of 
 the requirements ineffectual. Such are regulations 
 designed to secure order, system, and dispatch in 
 
96 
 
 proceedings. Provisions of this character are not 
 mandatory unless accompanied by negative words im- 
 porting that the acts shall not be done in any other 
 manner or time than that designated. (Anderson's' 
 Law Dictionarv.) 
 
 As with statutes, so with executive regulations, 
 when it is the intention that acts shall be invalid 
 unless done in the way prescribed, and therefore the 
 way prescribed is of the essence of the regulation, the 
 regulation is imperative, and not merely directory. 
 
 These rules have been applied in the construction 
 of Army regulations. So held with reference to para- 
 graph 746 of the Army Regulations of 1889, forbidding 
 purchases of supplies to be made from, or contracts 
 for supplies or services to be made with, persons in 
 the military service, that it was directory merely, and 
 that a contract might still be legal and binding, though 
 entered into in contravention of its terms. (Dig. Opin. 
 Judge- Advocate General, 296.) But a regulation which 
 has been adopted by Congress, even though directory 
 only, should not be deliberately set aside, any more than 
 the directory requirements of a statute. Nor should 
 a directory regulation made pursuant to or in aid of a 
 statute be deliberately repudiated in an individual 
 case. Such action would be unauthorized (and de- 
 structive to system), although the thing done would 
 not thereby be rendered invalid. It has been held by 
 the War Department that certain regulations made 
 for the purpose of carrying out the law with reference 
 to appointments from the ranks, and which prescribe 
 requirements relating to the examination of candi- 
 dates, can not be set aside in individual cases. This 
 decision is manifestly correct, whether it rests on the 
 
97 
 
 ground that the regulations were intended to be im- 
 perative, or on the ground that the Department has 
 no authority thus, in individual cases, to set aside 
 regulations made pursuant to a statute, even though 
 they be directory only/ 
 
 10. When there is a doubt as to the meaning of a 
 regulation, reference may be had to the order, if any 
 there be, on which it is based, for an explanation of 
 the doubtful language. This is an application of a 
 rule of statutory construction. Thus, Justice Miller, 
 speaking of the Revised Statutes of the United States, 
 
 said : 
 
 " Where there is a substantial doubt as to the mean- 
 ing of the language used in the revision, the old law 
 is a valuable source of information. The Revised 
 Statutes must be treated as the legislative declaration 
 of the statute law on the subjects which they embrace 
 on the 1st day of December, 1873. When the mean- 
 ing is plain, the courts can not look to the statutes 
 which have been revised to see if Congress erred in 
 that revision, but may do so when necessary to con- 
 strue doubtful language used in expressing the mean- 
 ing of Congress." (United States v. Bowen, 100 U. S., 
 
 513.) 
 
 So, where there is a doubt as to the meaning of a 
 regulation, reference may be had to the antecedent 
 history of the subject. This is not uncommonly a 
 source. of information in the construction of regula- 
 tions, and recourse is often had to it as a matter of 
 historical illustration and confirmation, even when 
 the language of the regulation is entirely free from 
 
 doubt. 
 
 1 See G. C. M. O. No. 27, Navy Dep't, 1898. 
 
 13190 7 
 
98 
 
 11. "He knows not the law who knows not the rea- 
 son for the law." In construing a regulation the 
 reason for it may be taken into account, and cases 
 excluded from it which, although within the letter of 
 the regulation, are not within the reason for it. This 
 also is the application of a principle of statutory con- 
 struction. "It is a familiar rule," say the Supreme 
 Court, "that a thing may be within the letter of the 
 statute and yet not within the statute, because not 
 within its spirit, nor within the intention of its 
 makers. This has been often asserted, and the reports 
 are full of cases illustrating its application. This is 
 not the substitution of the will of the judge for that 
 of the legislator, for frequently words of general 
 meaning are used in a statute, words broad enough to 
 include an act in question, and yet a consideration of 
 the whole legislation, or of the circumstances sur- 
 rounding its enactment, or of the absurd results 
 which follow from giving such broad meaning to the 
 words, makes it unreasonable to believe that the legis- 
 lator intended to include the particular act." ' 
 
 12. When the punctuation is such as to interfere 
 with true interpretation, it should be disregarded. 
 This rule of statutory interpretation is applicable to 
 the interpretation of regulations. But the evidence 
 of the interference should be clear. As stated by 
 Black and the authorities cited by him: "In the 
 interpretation of written instruments, very little con- 
 sideration is given by the courts to the punctuation, 
 and it is never allowed to interfere with or control 
 the sense and meaning of the language used. The 
 words employed must be given their common and 
 
 1 143 U. S., 459. 
 
99 
 
 natural effect, regardless of the punctuation or gram- 
 matical construction; and considerations based on the 
 l)unctuation alone must never be allowed to violate 
 the well-settled rale tliat, where it is possible, effect 
 must be given to every sentence, phrase, and word, 
 and the parts must be compared and considered with 
 reference to each other. Pimctuation is a most falli- 
 ble standard by which to interpret a writing; it may 
 be resorted to when all other means fail ; but the court 
 will first take the instrument by its four corners, in 
 order to ascertain its true meaning; if that is apparent 
 on judicially inspecting the whole, the punctuation 
 wili not be suffered to change it. 
 
 "If, therefore, the words of the act, taken in them- 
 selves alone, or compared with the context and read 
 in the light of the spirit and reason of the whole act, 
 convey a precise and single meaning, they are not to 
 be affected by the want of proper punctuation or by 
 the insertion of incorrect or misplaced marks." ' 
 
 "Punctuation in written instruments may some- 
 times, in cases of ambiguity, shed light upon the 
 meaning of the parties, but it is never allowed to 
 overturn what seems the plain meaning of the whole 
 instrument. It may be resorted to when all other 
 means fail."' 
 
 13. The Army Regulations consist of a great num- 
 ber of individual regulations, derived from a great 
 variety of sources, and reduced to words by many dif- 
 ferent persons. They, to a large extent, relate to the 
 business of the different staff departments of the 
 Army, the regulations relating to one department 
 
 1 Black's Construction and Interpretation of the Laws, p. 186. 
 •^ Am. and Engl. Enc. of Law, vol. 11, p. 531, and authorities 
 cited. 
 
100 
 
 often not affecting others. Words may sometimes, 
 in consequence of this, be differently used in different 
 connections, or, perhaps, with meanings qualified by 
 their surroundings. The rule of statutory construc- 
 tion, Nosciter a sociis, here applies. To illustrate: 
 Paragraph 771, of the Army Regulations of 1889, pre- 
 scribed that affidavits or depositions might be taken 
 before certain military officers, without specifying in 
 what cases. According to the language of this para- 
 graph, taken by itself, these officers were given the 
 power to take affidavits and depositions (which was 
 held to include the administering of oaths) for all pur- 
 poses whatsoever ; but, as the paragrajdi was amongst 
 other paragraphs, and in an article, relating to property 
 accountability, it was evidently the intention to confer 
 the power (an excess of authority even then) only for 
 the purpose of accounting for public property in the 
 custody of the military establishment. The meaning 
 of the paragraph was determined by its surroundings. 
 
 14. As with statutes, so with executive regulations, 
 contemporaneous construction, and official usage for a 
 long period, by the persons charged with their admin- 
 istratiou, are among the legitimate aids in determin- 
 ing their meaning. By contemporaneous construction 
 is meant that put on the regulation at the time that it 
 was made. As usage under a regulation is generally 
 founded on contemi3oraneous construction, these, thus 
 united, should ordinarily be considered as couclusive; 
 except, of course, when the question is as to a conflict 
 between the regulation and some superior rule of 
 action. ' 
 
 ^ Under the head of, "Principles governing Regulations," 
 Colonel Winthrop, in his work on Military Law, points out and 
 
101 
 
 In the administration of military affairs, as in other 
 branches of government, precedents are of great value, 
 and an authoritative construction, once given to a 
 regulation, should thereafter receive great weight. 
 Stare decisis, et non qiiieta movere, is a maxim appli- 
 cable to constructions of regulations by the Executive, 
 as well as to constructions of law by the courts. To 
 change the accepted meaning of a regulation by a new 
 construction is disturbing, and should be avoided. It 
 is preferable to change the regulation itself when that 
 
 can be done. 
 
 We see it sometimes announced that the action 
 taken in a case will not be followed as a precedent. 
 This is scarcely more than a declaration of a present 
 intention in regard to future action, and as such 
 affects only the authority making it, and is not even 
 legally binding on him. If the thing done be within 
 th'e legal power of the authority doing it, it will be a 
 precedent, although, perhaps, weakened by the cir- 
 cumstances of the case. Accordingly, we find prece- 
 dents of this kind cited, notwithstanding the announce- 
 ment that the action taken is not to be so regarded. 
 
 But it is not the object of these remarks to treat the 
 subject of the construction of regulations at any 
 length. All that has been attempted has been to 
 point out a few of the most important principles. 
 For the rest it may be said that in general the rules 
 of statutory construction will be safe guides. 
 
 discusses the following rules : 
 
 1. Thev must not contravene existing law. 
 
 2. They must not legislate. 
 
 3. They must confine themselves to their subject. 
 
 4. They must be uniform. 
 
 5. They should be equitable. 
 
APPENDIX A. 
 
 LETTER OF THE SECRETARY OF WAR 
 
 IN REPLY TO 
 
 House Resolution of April 13, 1874, to examine and report 
 on General Orders No. 32, \A^ar Department, Adjutant Gen- 
 eral's Office, of March 15, 1873, as published in Executive 
 Docun:ient No. 273, House of Representatives, 4-3d Congress, 
 1st Session. 
 
 War Department, June 1, 1874. 
 
 Sir: Referring to tlie House resolution of April 13, 1874, to 
 examine and report as to General Orders No. 32, War Depart- 
 ment, Adjutant General's Office, of March 15, 1873, I inclose 
 herewith a copy of that order. 
 
 In my annual report, which has been submitted to Congress, 
 you will find specific reference to this order, with my reasons for 
 issuing it. 
 
 The House resolution directs examination — 
 
 1st. As to the authority of the Secretary of War to issue such 
 order. 
 
 2d. Whether such order abridges the rights of officers in free- 
 dom of speech and to petition of Congress as citizens. 
 
 3. Whether such order is in contravention of exclusive right 
 of Congress, under paragraph 13, section 8, Article VII of the 
 Constitution, to make rules and regulations for the government 
 of the Army, etc. 
 
 4th. As to the authority of the Secretary of War over retired 
 officers who are not subject to assignment to any military duty. 
 
 I. 
 
 Under the first inquiry, as to my authority to issue the order, 
 I have to say that it was issued by me under the authority 
 intrusted by the President, under section 1 of the law of August 
 
 (103) 
 
104 
 
 7, 1789, the orders of the Secretary of War (except as to duties 
 specifically imi^osed by certain statutes) being, in contemplation 
 of law, the orders of the President. (See Attorney-General 
 Wirt's opinion of July 6, 1820. ) 
 
 The United States Supreme Court has also ruled on this sub- 
 ject. In United States v. Eliason, 16 Pet., 291, the court said (p. 
 457, vol. 7) : 
 
 ' ' The Secretary of War is the regular constitutional organ of 
 the President, for the administration of the military establish- 
 ment of the nation; and rules and orders publicly promulged 
 through him must be received as the acts of the Executive, and 
 as such be binding upon all within the sphere of his legal and 
 constitutional authority. Such regulations can not be questioned 
 or defied, because they may be thought unwise or mistaken." 
 (See also Wilcox v. Jackson, 13 Pet., 498.) 
 
 Such has been the uniform practice in the conduct of military 
 affairs since the organization of the Army in 1790, and, if desired, 
 this point could be greatly amplified and illustrated. (7 Opin. 
 Attv. Gen., p. 453.) 
 
 II. 
 
 The second point of the resolution, as to whether such order 
 abridges the right of officers in freedom of speech and the right 
 to petition Congress as citizens of the United States under the 
 Constitution, covers broader grounds. 
 
 Congress undoubtedly has unlimited power over the Army. 
 Article I, section 8, gives it power "to raise and support armies ;" 
 also, power ' ' to make rules for the government and regulation of 
 the land-forces ; " and power "to make all laws which shall be 
 necessary and proper for carrying into execution the foregoing 
 powers, and all other powers vested by the Constitution in the 
 Government of the United States, or any department or officer 
 thereof." 
 
 Acting under this very extensive and unlimited power. Con- 
 gress has raised and supported armies and provided statutory 
 rules and articles for their governance, commonly known as the 
 "Articles of War." (Act of April 10, 1806, and amendatory 
 acts ; see Scott's Digest United States Military Laws, p. 297. ) 
 
 These, however, have formed but a statutory frame-work, as 
 it were, because, in addition thereto, numerous regulations in 
 
105 
 
 aid or complement of the statutes (8 Opin. Atty. Gen., 343), as 
 well as standing general orders for the goverament of the Army, 
 have heen issued by successive Executives. 
 
 Presidents Washington, Adams, and Jefferson, caused to be 
 issued many such standing orders, from 1790 to 1819. (See 
 Duane"s Military Dictionary. ) 
 
 SiTbsequently. Congress, by the acts of March 3, 1813, section 
 5, and April 24, 1816, section 9, gave specific power to the Secre- 
 tary of War to make general regulations subject to approval of 
 the President, which should be respected "and obeyed until 
 altered or revoked by the same authority." 
 
 In discussing the ' ' Navj- Regulations, " Attorney-General Gush- 
 ing said (6 Opin., pp. 10, 15), that "cases may be supposed in 
 which it is not easy to draw the line between what is legislative 
 and what is executive or administrative, and so it is- in regard to 
 every such question of the distinction of powers. " 
 
 He came to the conclusion that ' ' the President and subordinate 
 executive officers, whether military or ci^•il, possess a limited 
 power to establish regulations, provided these be in execution of, 
 and supplemental to, the statutes and statute regulations; but 
 not to repeal or contradict existing statutes or statute regula- 
 tions, nor to make proA-isions of a legislative nature. " 
 
 The difference between rules, regulations, and standing gen- 
 eral orders is as follows : 
 
 "Rules"' are statutory enactments for the goverament of the 
 Ai-my, affixing certain penalties for a violation, and declaring 
 what shall be deemed military offenses. (See the "Rules and 
 Articles of War," act of April 10, 1806.) 
 
 "General Regulations" are a system of ordinances for the 
 administration of the affairs of the Army and for better defining 
 and prescribing the respective duties and powers of officers and 
 men in the military service, and embracing all necessary f onus 
 of a general character. (See acts March 3, 1813, section 5 ; July 
 28, 1866, section 37 ; July 15, 1870, section 20. ) 
 
 Congress may make the regulations, or it may, as it has done, 
 devolve on the President the authority to make regulations not 
 inconsistent with law. 
 
 "Standing general orders " are Executive instructions, or direc- 
 tions to do or not to do particular acts. 
 
106 
 
 Police and local or interior regulations come under this head. 
 (See Duane's Military Dictionary; Army Regulations of 1821, 
 approved for one year by Congress, and subject then remitted to 
 President under acts of 1813 and 1816, article 5, par. 1, and article 
 36, par. 1.) 
 
 In Harvey v. United States, 3d Nott and Huntington's Rep., 
 42, the Court of Claims have held that a mere order of the Presi- 
 dent or of the Secretary of War is not regulation. 
 
 Article I of the amendments to the Constitution, declares that 
 Congress shall make no law abridging the freedom of speech or 
 the right of the people peaceably to assemble, and to petition the 
 Government for a redress of grievances. This article, it is 
 believed, is not in any way applicable to persons in the land 
 forces, because plenary powers had already been given by the 
 Constitution to Congress in respect to such persons, and article 
 10 of the amendments in saying that "powers not delegated to 
 the United States by the Constitution * * * are reserved to 
 the States, respectively, or to the people," contains the implica- 
 tion that the foregoing amendments had no reference whatever 
 to the powers already delegated to Congress by the Constitiition. 
 
 It seems further apparent that Article I of the amendments, 
 just quoted, is not applicable to the Army from Article VI of the 
 amendments, which provides that ' ' in all criminal prosecutions 
 the accused shall enjoy the right to a trial by jury, nor shall any 
 person be subject for the same offense to be twice put in jeopardy 
 of life or limb." 
 
 Despite this amendment soldiers are triable for crimes other- 
 wise than by jury. (See sixty-fifth, sixty-sixth, and ninety-ninth 
 articles of war. ) Congress has, however, in the eighty-seventh 
 article of war, declai-ed that "no soldier shall be tried a second 
 time for the same offense, " which would hardly seem to have 
 been necessary if the constitutional amendment was deemed 
 api)licable. 
 
 Article V of the amendments especially excepts criminal cases 
 arising in the land forces from the necessity of presentment by 
 the grand jury. Congress appears to have always acted on the 
 views herein expressed. 
 
 Thus, in the Articles of War, there are numerous instances 
 where Congress has abridged the freedom of speech, wdth refer- 
 
107 
 
 ence to persons in the Army, by statutes not at all applicable to 
 the people at large. (See articles 5, 23, 24, 28, 52, 53, and ... ) 
 
 The right of the people peacefully to assemble to petition the 
 Government for a redress of grievances, is also a riglit incom- 
 patible with subordination and discipline in the military service. 
 
 A cUizen, one of the people, as contradistmgmshed from a 
 soldier in the amendments, can go where he pleases, provided 
 he does not trespass; he can go to an assembly to make such 
 
 ^'Thrsoldier has no such right. Congress, by the Articles of 
 War, has limited and restricted his movements m numerous 
 ways dependent on the will of superior military authority. 
 (See articles 12, 20, 21, 27, 41, 48, 50, and 52. ) . 
 
 It seems further apparent that this right ot the people ve^ce- 
 ably to assemble and petition the Government for a redress of 
 qrievances has no applicability to the military service because 
 Congress has provided, in the thirty-fourth and thirty-fitt^ arti- 
 cles of war (act of April 10, 1806), exactly how an officer or 
 soldier may obtain redress of grievances, by an individual appli- 
 cation through certain military channels. (See, also, general 
 orders of September 24, 1806, from general headquarters. ) 
 
 Should officers or soldiers endeavor to assemble, with a view 
 of making a jomt petition or application, such conduct would, 
 under the article of war, be a military offense, triable, either as 
 "sedition," under the seventh article of war, or as conduct to 
 the prejudice of good order and military discipline, under the 
 ninety-ninth article of war. , .,.^ ^ ^ 
 
 It would strike at the root of discipline and military suboidi- 
 nation so essential to the effectiveness of a military force, to 
 concede that the Army could be turned into a debating society 
 to discuss the official acts of superior authority, on the plea that 
 Article I of the constitutional amendments was paramount, and 
 embraced such designated class of individuals. It would ren^ 
 der nugatorv the articles of war already recited, as well as that 
 article (5) wiiich makes the use of contemptuous or disrespectful 
 words against the President. Vice-President, Congress, governor, 
 or State legislature, an offense. . , -o-, 
 
 When the Pennsylvania and New Jersey lines, m 1 .81, respec- 
 tively undertook to proceed to places of assembly of their respec- 
 tive legislatures to obtain from the governor redress of grievances. 
 
108 
 
 the movement was not only seditious, but mutinous and danger- 
 ous to the safety of the nation, for the reason that these persons 
 were not peaceful citizens, but armed and disciplined soldiers. 
 
 These preliminary observations are necessary, in order to show, 
 that the National Constitution nowhere gives any right to officers 
 or soldiers in the Army, either as to freedom of speech or to peti- 
 tion Congress as citizens. 
 
 So long as such i^ersons remain in the military service their 
 civil rights are wholly subordinate to the will of Congress and 
 the lawful orders of their proper military sxiperiors ; a citizen 
 has the absolute right to vote in his own precinct after due resi- 
 dence, etc. A soldier has no such right, although he may have 
 fulfilled all the requirements of "-the local statute. His superior 
 officer may forbid him the privilege of going to the polls, and 
 such prevention of the soldier from voting would not subject the 
 officer to any punishment under the State law, because it would 
 rest solely with him, under the laws of the United States, to 
 determine what military necessity controlled his order. 
 
 Acting on these principles. Congress, by the ninety -ninth arti- 
 cle of war, has made other proceedings military offenses besides 
 those enumerated in such articles, because it declares that ' ' all 
 disorders and neglects which officers and soldiers may be guilty 
 of, to the prejudice of good order and military discipline, though 
 not mentioned in the foregoing articles of ivar, are to be taken 
 cognizance of by a general or regimental court-martial, according 
 to the nature and degree of the offense, and be punished at their 
 discretion. " 
 
 Under military law, it is held that a violation of a " standing 
 general order " woiild necessarily fall under this article of war. 
 
 Under the heretofore unquestioned power vested in the Presi- 
 dent as Commander in Chief, and by the acts of Congress, many 
 orders have been successively issued since 1790, restricting and 
 controlling officers and soldiers in their movements and immimi- 
 ties. (See General Orders of May 22, 1797, from headquarters of 
 the Army, Fort Washington. ) 
 
 Notably are the orders as to how officers and soldiers shall 
 wear their hair and beards. (See General Orders No. 31, Army 
 Headquarters, Adjutant General's Office, June 12, 1851 ; General 
 Orders No. 2, Anny Headquarters, Adjutant General's Office, 
 January 6, 1853.) 
 
109 
 
 A hasty survey of past orders confirms these i:emarks 
 On the subject of correspondence, General OrdersNo. . , r.nu 
 the Adjutant General's Office, Washington, December 10, 18~J, 
 
 said: , 
 
 " From the repeated attempts which have recently been made 
 bv officers of the Army to open a direct correspondence with the 
 Department of War, and even .vith the Executive, on matters of 
 m Ita V detail and points of duty, in disregard of the estabhshed 
 niles of service, the General-in-Chief finds himself under the 
 ntesst of arr;sting the i-gularity by calling the a^^^^^^^^^ 
 of those concerned to the directions contained m the sixt> -sixth 
 article of the General Regulations for the Army on the subject 
 of military correspondence. While a strict conformity to those 
 directions is enjoined, a departure from tj-- -n be regar^^^^^^ 
 onlv as a breach of military discipline, subjecting the ofEendeis 
 to the penalties provided by the Articles of War. 
 
 In the following year General Orders No. 18, April 20, 1830. 
 from the same office, was issued. It said : 
 
 "From the number of letters referred to the general head^ 
 quarters of the Army, addressed by soldiers to the Secretary of 
 War and to other members of the civil departments of the Gov- 
 ernment, asking to be discharged from the service, and m rela- 
 tion to other subjects-which letters ought to have ^e^n sub^ 
 Biitted in the first instance, according to estabhshed lules, to 
 their immediate commanding officers, and by them, if approved, 
 to the colonels of their regiments, who would forward them 
 throu-h the proper channel of communication pointed out by 
 the General Regulations-the major-general commandmg the 
 Army finds it his duty to put a stop to such irregularities, and 
 to forbid them in future. In every case hereafter of a broach 
 of the established rules of correspondence, the letters will be 
 returned to the commanding officer, to be made the grounds of 
 a charge of disobedience of orders, that the offenders maybe 
 brought to a court-martial to answer accordingly." 
 
 In 183T, General Orders No. 79, December 23, were issued from 
 the Adjutant GeneraVs Office, Washington, in which Secretary 
 of War Poinsett, in reenunciating the principle, said: 
 
 "Letters are frequently received at this Department from 
 officers of the Army, through members of Congress, preferring 
 
110 
 
 claims, or seeking redress of grievances, and too often couched 
 in language disrespectful to tlieir superiors in command. In 
 such cases they will never be considered, however respectable 
 the channel through which they come : but under no circiim- 
 stances is it necessary for an officer to avail himself of any other 
 than the regular military channel. Claims or remonstrances 
 addressed to the Department in temperate and respectful lan- 
 guage vnll be i)romptly considered, and decided on their merits 
 without prejiidice or partiality, according to the rules of ecjuity 
 or military usage, where it governs the case ; and under no cir- 
 cumstances will such rules and usage be departed from, to favor 
 or to wi'ong any one. " 
 
 Coming down to 1861, Secretary of War Cameron, in General 
 Orders No. 67, Adjutant General's Office, of August 26, ordered 
 that — 
 
 * * * ' 'All correspondence and communication, verbally or 
 by Avi'iting, printing, or telegraphing, respecting operations of 
 the Army or military movements on land or water, or respecting 
 the troops, camps, arsenals, entrenchments, or military affairs, 
 within the several military districts, by which intelligence shall 
 be directly or indirectly given to the enemy, without the author- 
 ity and sanction of the general in command, be, and the same 
 are, absolutely prohibited, and from and after the date of this 
 order, persons violating the same will be proceeded against under 
 the fifty-seventh article of war. " 
 
 It is proper to remark that this was a time of war, but the 
 authority to issue the order remains the same. 
 
 Later still, on March 30, 1864, the present Executive, then 
 General-in-Chief, in General Orders 1'29, War Department, Adju- 
 tant General's Office, said : 
 
 ' ' The attention of all officers is called to the Army Regulations 
 and General Orders in regard to correspondence on official mat- 
 ters. All such correspondence must be conducted through the 
 jjroper official channels, except in cases of pressing necessity, 
 which do not leave time for regular communication, and then 
 the necessity must be stated. All applications or correspond- 
 ence, through irhomsoever made, in violation of this order, wnll 
 not be responded to, and the wi'iters ^^^ll be arrested and tried 
 for disobedience of orders, or recommended to the President for 
 dismissal. " 
 
Ill 
 
 The Constitution, section 2, paragraph 1, while making the 
 President the Commanaer in Chief of the Army, has given him 
 authority to require the opinion in siting of the principal offi- 
 cer in each of the Executive Departments, upon any subject 
 relating to the diities of their respective offices; and section 3 
 savs "he shall from time to time give to Congress mf.n-mation 
 of the state of the Union, and recommend to their consideration 
 such measures as he shall judge necessary and expedient. " 
 
 There is no law or constitutional provision giving hke authority 
 to any officer of the Armv, constitutionally subordinate to the 
 President and it is reasonable to assume if such officers were 
 entitled to such privilege, it would be stated in some such way. 
 The right of Congress, or of either House, collectively or by 
 committee, to call on any officer of the Army for his advice or 
 opinion on any matter is undoubted, because the Army is wholly • 
 the creation of Congi-ess. ' 
 
 The endeavor of any officer or soldier, however, of his own 
 motion to address Congress or either House, or its Members, 
 soliciting suggesting, or recommending action by Members for 
 or against military affairs concerning the ' ■ whole Avmj," is con- 
 ceived to be a very different matter, liable to be detrimental to 
 the public service and disrespectful to the President, ^^^th whom, 
 officially, alone rests this power under the Constitution. Gen- 
 eral Orders No. 33 clearly expresses this opinion. 
 
 There are many instances where it becomes necessary for offi- 
 cers to applv to Congi-ess for special bills of relief from liability 
 for loss of public property for which accountable. 
 
 The order in question does not preclude any officer from making 
 direct application to Congress, for the reason that the legislation 
 applied for would be private and personal, as to the officer him- 
 self in an individual capacity, and not concerning the ivhole Army. 
 Occasionally it happens that an officer may make suggestions 
 of gi-eat value to the service at large. This is provided for m the 
 order by paragraph 2, which says that— 
 
 "All petitions to Congress by officers, relative to subjects of a 
 military character, will be forwarded through the General of the 
 Army and Secretary of War for their action and transmittal. 
 From these observations is to be collected— 
 1st. That no heretofore existing right of an officer in freedom 
 of speech has been abridged by General Orders No. 33; and, 
 
112 
 
 3d. That the only right to petition Congi-ess being a right to 
 petition for a redress of grievance, Congress has specifically pro- 
 A-ided in the Ai-ticles of War how an officer or soldier shall prefer 
 snch a petition and to whom. General Orders No. 33 does not 
 apply to such matter. 
 
 As to the mere propriety or expediency of issuing this order, 
 it is not believed any inquiry is intended. 
 
 in. 
 
 The third inquiry, whether such order is in contravention of 
 the exclusive right of Congress, under the Constitution, to make 
 rules for the government and regiilation of the land forces, has 
 already been answered under the second head, in discussing the 
 difference between rules, regulations, and standing general orders. 
 
 In the case before cited of United States v. El'iason, the United 
 States Supreme Court said (see also acts of Congress of March 3, 
 1813, and April 34, 1816, giving authority to make regulations) : 
 
 " The power of the Executive to establish * * * regulations 
 
 for the government of the Anny is undoubted. The power to 
 
 establish implies necessarily the power to modify or repeal, or to 
 
 create anew. 
 
 ******* 
 
 "Such regulations can not be questioned or defied because they 
 may be thought unwise or mistaken." 
 
 Again, in United States v. Freeman, 3 Howard's U. S. Rep. , 
 566, the same coiirt said that — 
 
 "The Army Regulations when sanctioned by the President 
 have the force of law." 
 
 This was reaffirmed by the United States Supreme Court in 
 Gratiot v. United States, 4 Howard's U. S. Rep., 80. General 
 Orders No. 33 is, however, viewed as an Executive order rather 
 than a regulation. 
 
 The before-quoted act of 1813 made it the duty of the Secretary 
 of War, and authorized him, Avith the approval of the President, 
 to prei^are general regulations defining and prescribing the duties 
 and powers of certaua officers, and the act of April 34, 1816 {ante) 
 recognized the regulations then in force, "subject, however, to 
 such alterations as the Secretary of War may adopt, with the 
 approbation of the President. " 
 
•113 
 
 The law of July 28, 1866, section 37, enacted that the Secretary 
 of War should submit to Congress on its next session a code of 
 regtilations * * *: 
 
 ' ' The existing regulations to remain in force until Congress 
 shall have acted on said report."' 
 
 The action of Congress on that report was a negative one— in 
 fact, no action at all; and in 1870 (act of July 15, section 20) 
 Congress directed the Secretary of War to prepare a system of 
 regulations, etc. , which are now before it. 
 
 Whether section 37 of the above-recited act of July 28, 1866, 
 imj)Iicdhj repealed the old acts of 1813 and 1816, which gave to 
 the President specific power to make regulations, is not necessary 
 to be considered, in consequence of the light in which Greneral 
 Orders No. 82 is viewed, besides which the order does not modify 
 any existing regulation. 
 
 Repeals by implication are never favored. Whenever Congress 
 shall have prescribed a series of statutory regulations, there is 
 no doubt that such regulations would then supersede and render 
 nugatory any Executive regulations on the same subject. 
 
 Paragraph 3 of General Orders No. 32 refers to officers visiting 
 Washington. A regulation of President Madison, of 1813, pre- 
 scribed that — 
 
 "All officers arriving at the seat of Grovernment will * * * 
 report to the Adjutant-General." 
 
 The manner and mode of "reporting" is purely a subject of 
 orders, liable to be changed according to circumstances. This, 
 as well as authority to visit or remain at the seat of Govern- 
 ment, has always been controlled or limited by the Executive or 
 General-in-Chief acting imder his authority, by general orders 
 in the nature of local regulations. 
 
 The same authority to grant leaves of absence includes the 
 Ijower to pi-escribe the limits of such leaves. 
 
 Reference is made to annexed orders (marked A, B, C, and D), 
 as showing the practice heretofore existing, where officers were 
 even forbidden to visit Washington. 
 
 As General Orders No. 32 is in no way repugnant to, or in vio- 
 lation of, any statiitory enactment, it is not perceived that it in 
 any way contravenes the constitutional right of Congress to 
 make rules and regulations for the government of the Army. 
 
 13100 — 8 
 
114' 
 
 IV. 
 
 The fourth inquiry is as to the authority of the Secretary of 
 War over officers of the Army ivholly retired from active service 
 and unassignable, under existing laws, to any kind of military 
 duty. 
 
 There is some confusion of language in this part of the House 
 resolution, so that the meaning is not readily discernible. 
 
 The law distinguishes between two classes of disabled officers : 
 
 First. Officers " partially retired, " and 
 
 Second. Officers ' ' wholly retired" from active service. 
 
 Over the latter class refeiTed to in the resolution the President 
 has no authority whatever. 
 
 The officer who is recommended by the retiring board to be 
 "wholly retired from the service" ceases, on the approval of the 
 President, connection with the military service. Under the 
 statute he receives ' ' one year's pay and allowances, " and his 
 name is "thenceforward omitted from the Army Register." 
 (See act of Congress of August 3, 1861, section 17.) 
 
 If the House resolution was intended to refer not to ' ' wholly 
 retired officers, " but to partially retired officers whose names are 
 continued on the Army Register, I have to say that they are 
 under military jurisdiction equally with other officers. Section 
 17 of the act of August 3, 1861, prescribed that such officers 
 should be withdrawn from active ser\ace and command; but 
 section 35 of the same act declared that — 
 
 " Retired officers of the Army * * may be assigned to such 
 duties as the President may deem them capable of performing 
 and such as the exigencies of the public service may require. " 
 
 This section was modified (see act of January 31, 1870, section 
 1; resolution of April 6, 1870; act of July 15, 1870, section 23) so 
 that now an officer on the retired list can be assigned to duty 
 only at the "Soldiers' Home," or as professor in a college. 
 
 The following provision of law, with reference to such officers, 
 is still in full force and effect. (Section 18, act of August 3, 
 1861.) 
 
 "The officers partially retired shall be entitled to wear the 
 uniform of their respective grades ; shall continue to be borne 
 upon the Ai-my Register * * * and shall be subject to the 
 
115 
 
 rules and articles of war, and to trial by general court-martial 
 for any breach of the said articles." 
 
 Such officers are always re(iiured to report, by letter, monthly 
 to the Adintant General of the Army, and they are as liable to 
 trial for disobedience of orders under the ninth article of war, 
 such as failing, on direction, to report before a board of survey, 
 as for anv other breach of said articles. 
 
 It will'be perceived that the retired list of the Army is very 
 different from the pension list of the Interior Department, which 
 is composed wholly of civilians not subject to military junsdic- 
 
 tion or to military law. ■ . ^f or.,.ii 
 
 The War Department has recently been m receipt of appli- 
 cations from officers of the Army on the retired list to practice 
 as "Claim-agents or attorneys," before the several Execute e 
 Departments of the Government. These officers are officers of 
 the Government, holding places of profit and receiving -o pel 
 cent, of the pay of the rank on which they are retired. (Act ot 
 July 15, 1870, section 24.) 
 
 In fact some of them, by being retired on the rank of the com^ 
 mand in the volunteers held by them when wounded (act of 
 July 28, 1866, section 82) receive now much more pay than wliile 
 on the active list of the Anny. . • .i , 
 
 The act of February 20, 1853, section 2 (10 Stat. , p. 1 .0) , strictly 
 prohibits, xmder severe penalties, "any officer of the United 
 States or person holding any place of trust or projit ■ 
 
 under * * the Government," from acting as an agent or 
 attorney to prosecute any claim against the United States, or m 
 any manner or by any means, otherwise than in the discharge of 
 proper official duties, aiding or assisting in the prosecution oi 
 support of any such claim. 
 The act of June 11, 1864, is also very explicit on this point. 
 
 The act is as follows : 
 
 Public— No. 97. 
 
 AN ACT relating to members of Congress, heads of Departments, and other officers of 
 
 the Government. 
 
 Be it enacted by the Senate and House of Represent aMves of 
 the United States of America in Congress assembled That no 
 member of the Senate or House of Representatives shall, alter 
 
116 
 
 his election and during his continuance in office, nor shall any 
 head of a Department, head of a Bureau, clerk, or any other 
 officer of the Government, receive, or agree to receive, any com- 
 pensation whatsoever, directly or indirectly, for any services 
 rendered, or to be rendered, after the passage of this act, to any 
 person, either by himself or another, in relation to any proceed- 
 ing, contract, claim, controversy, charge, accusation, arrest, or 
 other matter or thing in which the United States is a party, or 
 directly or indirectly interested, before any Department, court- 
 martial, Bureau, officer, or any civil, military, or naval commis- 
 sion whatever. And any person offending against any jiro vi- 
 sion of this act shall, on conviction thereof, be deemed guilty of 
 a misdemeanor, and be ininished by a fine not exceeding ten 
 thousand dollars, and by imprisonment for a term not exceeding 
 two years, at the discretion of the coitrt trjdng the same, and 
 shall be forever thereafter incapable of holding any office of 
 honor, ti'ust, or profit, under the Government of the United 
 States. 
 
 Approved Jtine 11, 1864. 
 
 (See also the equally positive act of July 13, 1866, section 62, 
 chap. 184.) 
 
 In view of these explicit and peremptory laws this Department 
 has invariably refused permission to any officer of the Army to 
 act as agent or attorney for any indiA-idual, in the prosecution of 
 any claim against the United States, or of any claim in which the 
 United States is a party. 
 
 Very respectfully, your obedient servant, 
 
 Wm. W. Belkxap, 
 
 Secretary of War. 
 The Speaker of the House of Representatives. 
 
 [General Orders No. 32.] 
 
 War Department, Adjutant General's Office, 
 
 Washington, March 15, 1873. 
 The practice — which has prevailed to a considerable extent — of 
 Anny officers visiting and remaining at the seat of Government 
 during the sessions of Congress, with the view of influencing 
 
117 
 
 le-islation upon military affairs concerning the whole Army, and 
 wiiich have been or can be brought properly to the attention ot 
 Congress onlv by the President, the Secretary of War, or the Gen- 
 eral of the Army, has become a serious evil, highly detrimental 
 to the public service and disrespectful to superior authority. 
 
 Such action on the part of Army officers not only consumes but 
 is a task upon the time of members of Congress, causing them 
 embarrassment and hindering necessary legislation-of which 
 they justly complain-and injures the Army in public opinion. 
 The advantages, if any, to the individual can not counteract the 
 disadvantage to the service. 
 It is therefore ordered— 
 
 I That no officer, either active or retired, shall, directly or in- 
 directly without being called upon by proper authority, solicit, 
 suggest, or recommend action by members of Congress for or 
 against military affairs. 
 
 The fore-oing is not intended to preclude officers from illus- 
 trating or expounding a measure before Congress which may have 
 received the favor or sanction of the President, Secretary of War, 
 or General of the Army. The experience of officers when so used 
 is and will be viewed as valuable. , . , ^ 
 
 II All petitions to Congress by officers, relative to subjects ot 
 a militarv character, will be forwarded through the General of 
 the Army and Secretary of War for their action and transmittal. 
 
 III All officer visiting the seat of Government during a con- 
 gressional session will, upon his arrival, register his name at the 
 Adjutant General's Office, as now required, and, m addition, 
 address a letter to the Adjutant General of the Army, recitmg 
 the purpose of and time that will be embraced by his visit, and 
 the authority imder which he is absent from his command or 
 station. The purpose or object, so recited, will be the strict 
 guide of the officer during his stay. 
 
 By order of the Secretary of War : ^ ^ townsend, 
 
 Adjutant General. 
 
118 
 
 [Order No. 48.] 
 
 Headquarters of the Army, 
 Adjutant General's Office, 
 
 Washington, May 18, 1833. 
 
 The practice, which has so extensively prevailed, of the officers 
 of the Army visiting the seat of Government, has been injurious 
 to the public service. The evils of this practice have been not 
 only in withdrawing officers from their proper stations, but fre- 
 quently in its effects upon the business of the Army, and upon 
 public opinion. 
 
 There are no benefits to individuals which can counteract the 
 disadvantages of this indiscriminate indulgence. 
 
 Where such visits are necessary for the public service, or for 
 any just right of the individual concerned, they will be authorized. 
 
 Nor will reasonable indulgence for the gratification of a laud- 
 able curiosity be refused where the circumstances of the appli- 
 cants make those proper, and where the public interest will not 
 suffer. 
 
 But of the propriety of these the General-in-Chief will judge, 
 and, therefore, no officer will visit the seat of Government 
 unless ordered, or unless specially permitted so to do by the 
 General-in-Chief. 
 
 An officer, however, may pass through the seat of Government 
 
 when on duty or on a leave of absence, provided it is the most 
 
 direct route to his place of destination ; but in such case he will 
 
 report in person to the Adjutant General, and will not remain 
 
 more than twenty-four hours. 
 
 ******* 
 
 By order of Major General Macomb : 
 
 R. Jones, 
 Adjutant General. 
 
119 
 B. 
 
 [Order No. 79.] 
 
 Headquarters of the Army, 
 Adjutant General's Office, 
 
 Washington, September 20, 1833. 
 
 The regulation of the War Department, promulgated to the 
 Army in order No. 48, has been modified according to the follow- 
 ing direction of the Secretary of War : 
 
 Department of War, September SO, 1833. 
 
 That part of the regulation quoted in Order No. 48, which pro- 
 hibited the ofiicers of the Army from visiting the seat of Grovem- 
 ment without express permission, was adopted with a view to 
 prevent the recurrence of difficulties, which had frequently been 
 experienced in the administration of the concerns of the Army. 
 It was not intended to impair the just rights or reasonable 
 expectations of the ofiicers, still less to aflfect that pride of char- 
 acter, personal and professional, which has always been cherished 
 in the American Army, and without which their country would 
 have little to expect from their services. 
 
 The limitation imposed by the same regulation, upon the 
 practice of granting leave of absence, will have a tendency to 
 diminish much of the evil which the above prohibition was 
 intended to obviate. And should experience hereafter show that 
 its operation is still so injurious as to require further remedy, 
 while such remedy will be applied so as best to attain the object, 
 it will be applied with every just regard to the honor and feelings 
 of the officer. 
 
 Under these circumstances, therefore, paragraph No. 7, under 
 the head of "Leaves of absence," of the regulation above referred 
 to, is hereby rescinded. 
 
 Lew. Cass. 
 
 By order of Major General Macomb: 
 
 R. Jones, 
 Adjutant General. 
 
120 
 C. 
 
 [General Orders No. 114.] 
 
 War Depabtment, Adjutant General's Office, 
 
 Washington, August Jl, 1863. 
 
 I. No officer of the Regular Army or of volunteers will hereafter 
 visit the city of Washington -without special permission. Leaves 
 of absence will not be considered as including the city of Wash- 
 ington, unless so stated, and leaves for that purpose can only be 
 given by the authority of the War Department, thi-ough the 
 Adjutant Greneral. 
 
 II. Officers on leave of absence will not leave the limits of their 
 military department without special permission. 
 
 By order of the Secretary of War : 
 
 E. D. TOWNSEND, 
 
 Assistant Adjutant General. 
 
 D. 
 
 [General Orders No. 31.] 
 
 War Department, Adjutant General's Office, 
 
 Washington, May 18, 1866. 
 
 Officers permitted to visit Washington u'hen on leave. 
 
 General Orders No. 114, dated War Department, Adjutant 
 General's Office, Washington, August 21, 1862, prohibiting officers 
 on leave of absence from visiting Washington without special 
 pel-mission, is hereby rescinded. 
 
 The attention of all officers arriving at the seat of Government 
 is directed to the regulation requiring them to report at the 
 office of the Adjutant General, and record their names and 
 residence in the city. 
 
 By order of the Secretary of War : 
 
 E. D. Townsend, 
 Assistant Adjutant General. 
 
APPENDIX B. 
 
 EXTRACT FROM THE JUDGE-ADVOCATE GENERAL'S 
 REMARKS ON REVOCABLE LICENSES. 
 
 The foregoing remarks are taken from a discussion on tlie 
 source of autliority of the Army regulations, but they apply as 
 well to the power of granting revocable licenses. As is pointed 
 out in that discussion, the power to make Army regiilations rests 
 primarily with Congress, under its constitutional power, ' ' To 
 make riiles for the government and regulation of the land and 
 naval forces." Nevertheless, as repeatedly declared by the 
 Supreme Court, the President has also the power to make Ai*my 
 regulations, and regulations so made have the force of law. 
 (United States v. Freeman, 3 How. , 567 ; Gratiot v. United States, 
 4 How., 118; United States v. Eliason, 16 Pet., 302; Kurtz v. 
 Moflfitt, 115 U. S.,503.) 
 
 As also stated in the discussion referred to, Congress might, if 
 it ivere practicable, cover by its legislation the whole field of Army 
 regulations, and leave nothing to the President, because the 
 power rests primarily with Congress. But it is not practicable. 
 
 So the Constitution prescribes that ' ' The Congress shall have 
 power to dispose of and make all needful rules and regulations 
 respecting the territory or other property belonging to the United 
 States." Were it practicable. Congress could cover this whole 
 field also, and leave nothing to the President. But it is not 
 practicable. 
 
 "From an early period in the history of the Goverament, " 
 said the Supreme Court in Grisar v. McDowell, "it has beentlie 
 practice of the President to order, from time to time, as the exi- 
 gencies of the public service required, parcels of land belonging 
 to the United States to be reserv^ed from sale and set apart for 
 public uses " — in the exercise of that general power, which the 
 court more fully considered in the Neagle case. This is an exer- 
 cise of a power which, in the first instance, is clearly vested in 
 Congress ; but, in the absence of the exercise of jurisdiction over 
 
 (121) 
 
122 
 
 the subject matter by Congress, it is legal, because it is an exer- 
 cise of a jjower included in tlie President's jiower as Executive, 
 to "take care that the laws be faithfully executed." Can it be 
 said that the power of the President extends to the setting aside 
 of lands for public purposes, and yet not to the making of rea- 
 sonable regulations regarding them while they are under his 
 charge? 
 
 Now, when the laud is set apart for a military purpose, neces- 
 sities for gi\ang permissions of different kinds arise — principally 
 relating to the requirements and convenience of the residents on 
 the reservation ; and, in so far as such permissions do no injury 
 to the property of the United States, the power of the President 
 to grant them has not been questioned. 
 
 It is on the face of it impossible for Congress to provide by 
 legislation for every case which may arise, because unforeseen 
 necessities for permissions of various kinds, often needing imme- 
 diate action, spring up, and these can only be met by an exercise 
 of the power of the ExeciTtive. These permissions are not always 
 granted by formal ^^Titten licenses. They may not be reduced to 
 wi'iting at all, but be entirely informal, oral permissions, to do 
 acts which without them would constitute trespass. These are 
 in effect and substance revocable licenses, just as much as those 
 expressed in a wi'itten instrument. Indeed, the great mass of 
 licenses to do acts of varioiis kinds on military reservations are 
 informal permissions of this character. Whether it be to enjoy 
 some continuous j)rivilege or to do a single act, makes no differ- 
 ence. All are in effect revocable licenses, emanating from the 
 same authority. And the only advantage of the revocable license 
 by wTitten instrument is that it is the most convenient evidence 
 of the ijermission. Many acts are, however, such that it would 
 be absurd to resort to written instruments for the purj^ose of 
 granting peiinission to do them. They are simply orally author- 
 ized or silently permitted, the authority l)eing the authority of 
 the President, executed through the commanding oflScer of the 
 post. At every large post there are, no doubt, a great number 
 of such acts done daily by the authority of these imwritten per- 
 missions, or un^vl■itten revocable licenses. . 
 
 The power of the President probably does not extend to the 
 granting of licenses for the doing of anything which would be 
 an injury to the property, nor can he grant other than revocable 
 
123 
 
 permissions, but there appear to be no other restrictions^ He 
 can not grant licenses that are not revocable, so that if it be tor 
 the erection of a buil.ling, whether it be of stone or wood is 
 immaterial; in either case the license must be revocable. The 
 power is one to be exercised by the President at his discretion, 
 subject only to the restrictions mentioned, and of course to such 
 other restrictions as may be imposed by or be the result of acts 
 of Con-ress The act of July 38, 1892, authorizing the Secretary 
 of War to grant leases, seems to have been intended as an exten- 
 sion, certainly not as a restriction, of his power. It is inappli- 
 cable to the purposes for which revocable licenses are used. 
 And the sixth section of the act of July 5, 1884, "to provide 
 for the disposal of abandoned and useless military reservations, 
 authorizing the Secretary of War to permit the extension of 
 roads across military reservations, the landing of ferries and the 
 erection of bridges thereon, and to permit cattle to be driven 
 across them, was apparently intended to confer power on him to 
 grant more permanent privileges than revocable licenses give. 
 
 A license is a bare authority to do a certain act or series of acts 
 upon the land of the licensor without possessing or acquiring 
 any estate therein. The Judge-Advocate General's Ofdce has 
 always held that the Secretary of War may, by revocable license, 
 permit a temporary use, terminable at his discretion, as the pub- 
 lic interests may require, of United States lands under his con- 
 trol provided such license conveys no usufructuary interest m 
 the 'land, and such use does not conflict with the purpose for 
 which the land is held. (See Dig. Opin. Judge-Advocate Gen- 
 eral p 4T6.) "The word license, as applied to real property, 
 imports an authority to do some act or series of acts upon the 
 land of another. It passes no interest in the land itself and its 
 only effect is to legalize an act which in the absence of the 
 license would constitute a trespass. It may be created by parol, 
 although a >\Titing defining the exact nature and scope of the 
 license is preferable. " (Rice on Real Property, p. 505. ) 
 
 In 1891 the Secretary of War decided that military reservations 
 and lands occupied by the War Department are held and occu- 
 pied for military purposes only, and that no licenses for then- 
 use or occupation would be given without authority from Con- 
 gress unless such use or occupation would be of some benefit to 
 the military service. (Circ. 12, Hd.p-. of the Army. ) It will be 
 
134 
 
 noticed that this is merely the announcement of a policy, and 
 not the denial of the existence of the power. And, as a matter 
 of fact, the policy thus declared, was not carried out. In x)rac- 
 tice it is fully recognized that the Secretary of War may thus 
 license any act which would not be an injury to the property, 
 nor conflict with the purpose for which it is held. This, it is 
 believed, is giving a reasonable application to the rule against 
 the granting of iTSufructuary interests or permission to commit 
 waste. In a recent case, where the question was whether the 
 Secretary of War had authority to permit the removal of sand, 
 it was said: "It has heretofore been held by this Oifice (the 
 Judge-Advocate General's) that the Secretary of War has no 
 authority to grant a usufructuary interest in lands of the United 
 States, and it might be said that he has no authority to jiermit 
 waste, i. e. , a material alteration or deterioration of the freehold. 
 I am inclined to believe that a safe view to take in this case is 
 that, in the absence of any legislation on the subject, a revocable 
 license may be granted, provided the act to be licensed would 
 not be an injury to the property. " 
 
 In 1890 the following question was submitted to the Attorney- 
 General : 
 
 "Has the Secretary of War the legal authority to grant a 
 license, revocable at the pleasure of the Secretary of War, to 
 construct and maintain an irrigating ditch through a United 
 States military reservation?" 
 
 The Attorney-General held : 
 
 "It has been the practice for many years for the Secretary of 
 War, and sometimes the President, as the files of your Depart- 
 ment will no doubt show, to grant revocable licenses to individuals 
 to enter upon military reservations and prosecute undertakings 
 there which may be beneficial to the military branch of the piib- 
 lic service as well as advantageous to the licensees. 
 
 "For many years a part of the tracks of the Baltimore and 
 Ohio Railroad Company was laid by a revocable license on a 
 part of the land at Harper's Ferry used by the United States for 
 a manufactory of arms. Under a similar license a part of the 
 land belonging to the fort at Old Point Comfort was allowed to 
 be used as a site for a hotel, and in 1864 President Lincoln gave 
 a license of this kind to a railroad company to use a part of the 
 
125 
 
 Government land at Sandy Hook, and in 1869 another license 
 was granted to said company to nse part of the same land 'so 
 long as it may be considered expedient and for the public inter- 
 est by the Secretary of War, or other proper ofl&cer of the Gov- 
 ernment, in charge of the United States lands at Sandy Hook.' 
 (Seel6 0pin.,212.) 
 
 ' ' In this case the license applied for relates to a military reser- 
 vation situated in an arid region, and therefore, in view of the 
 advantage to Fort Selden of the use of this w^ater, and in view 
 of the frequent exercise of a similar power by granting such 
 licenses as occasions have arisen through so many years, it seems 
 clear that such license may be granted, the same to be under 
 well-considered restrictions, and revocable at the will and pleas- 
 ure of the Secretary of War. " 
 
 In the joint resolution introduced by Mr. Fenton, at the second 
 session of the Fifty-foui'th Congi-ess, "relative to the practice of 
 gi'anting permits for the occupancy or use of military reserva- 
 tions for non-military puri^oses," and referred to the Committee 
 on Military Affairs of the House of Representatives, but not 
 reported, there was this recital : ' ' Whereas in the absence of spe- 
 cific legislation relating thereto, the custom has gradually ob- 
 tained, in the War Department, of granting 'revocable licenses,' 
 permitting citizens to occupy or use military reservations for 
 personal or non-military jjurposes." But, as we have seen, the 
 granting of these licenses rests on higher authority than the cus- 
 tom of the War De]iartment. 
 
 And it may be added, on the strength of a decision of the Sii- 
 preme Court in Benson v. United States, 146 U. S., 325, that the 
 temporary appropriation of a locality on a military reservation 
 to a non-military purpose does not have the effect of a diversion 
 of the reservation from the purpose for which it is held. In that 
 case Mr. Justice Brewer said, that the entire tract in question 
 having been legally reserved for military purposes, and the char- 
 acter and purposes of its occupation ha\ang been oflficially and 
 legally established by that branch of the Government which has 
 control over such matters, it is not open to the courts, on a ques- 
 tion of jurisdiction, to inquire what may be the actual uses to 
 which any portion of the reserve is temiiorarily put. 
 
 The object of the joint resolution mentioned was to make it 
 unlawful ' ' to issue a license or permit to any religious denomi- / 
 
126 
 
 nation or sect to erect, or to exclusively occupy, a church edifice 
 or chapel for sectarian purposes on any military reservation of 
 the United States," and to require the Secretary of War to re- 
 voke all such licenses already granted. 
 
 Of course such action would be entirely within the power of 
 Congress. Congress has absolute control over the matter. All 
 that is claimed is, that when Congress does not act the President 
 has power to act. So far as regards the " sectarian purpose " 
 for which a license may be required, it is evident that such pur- 
 pose does not affect the power to grant the license, but the policy 
 of granting it only. In the absence of action by Congress, the 
 exercise of the power rests in the discretion of the President, 
 and the purpose can be no restriction on his discretion, except 
 in so far that it must not be incompatible with, that is, an inter- 
 ference wdth or an obstruction to, the general use for which the 
 land is held. ' 
 
 'But see opinion of Attorney General of May 19, 1897, in which it is said: "West 
 Point is Government i)roi)erty, and lience conveyances of it or rises of it can only be 
 authorized by Congress." This, however, has not been given general effect. 
 
 November 11, 1897, the War Department issued the following: 
 
 REGULATIONS GOVERNING THE USE AND OCCUPATION OF LANDS WITHIN 
 THE LIMITS OF THE MILITARY RESERVATION OF FORT ST. MICHAEL, 
 ALASKA. 
 
 War Department, Wasliimjtoii, October JO, 1S07. 
 
 1. By authority of tho President, the land known as St. Michael Island, Alaska, with 
 all contiguous land and islands within one hundred miles of the locution of the rtagstaff 
 of the present garrison on that island, is set aside from the public lands of the Territory 
 of Alaska and declared a military reservation. 
 
 Parties who have, prior to the receipt of this order, located and erected buildings on 
 the land so reserved, will not be disturbed in their use of lauds, buildiug.s, and improve- 
 ments, nor in the erection of structures needed for their business or residence. 
 
 2. The military reservation above declared, and the military post locateil thereon, will 
 be known a.s Fort !>l. Michael, and will bo under the control and supervision of the com- 
 manding ofiBcer of the troops there stationed. 
 
 R. A. ALGER, 
 Secretary of War. 
 
 In the absence of other provision of law and of all local civil officials within the limits 
 of country surrounding the island of St. Michael, and the mouth of the Yukon River, 
 the foregoing described reservation has been established for the secuiity of life and prop- 
 erty, the preservation of order, and the protection of property and business interests. 
 Proper persons, associations, or corporations already located on, or desiring to enter 
 upon and conduct legitimate business enterprises within the limits of this military res- 
 ervation, will observe the following regulations: 
 
 1. Applications for permission must be accompanied by testimonials of good character 
 and standing and be made in writing, addressed to the Secretary of War, reciting the 
 nature of the business to be conducted; the location, as nearly as possible, on unoccu- 
 pied land within the reservation; the area of land necessary; number and character of 
 buildings, etc., to be erected, and probable date when occuiiancy is to bo commenced and 
 terminated. Those located on this reservation at the time the reservation was made will 
 in like manner present their application for permits, and thi> commanding officer will 
 not disturb them in their use and occupancy in conformity to these regulations until the 
 action of the Secretary of War ou their application is known. 
 
127 
 
 2 The permit to be iBsueii 1>v the Socrotary <.f War will .losmbo tli- prrw.ns, business, 
 location, etc., and will authoviz.' th.' -rant-TS to ent.T up,,!! tlir ros.Tvat.on at tli.^ ..ra- 
 tion named, and maintain tlio sprcificl l.uj^iness, and none oilier. \\ luT(. a dchnitr bxa- 
 tiou can not be ijiven in tbc permit, authority will be given to the eommandinf; uttieer 
 of B^rt St Michael to authorize an a|ipropriate location; but no permission will be ^'lven 
 to use lan.l that was included under the ori-inal order as located and used, and no per- 
 mit will be given to locate on the land set apart for buildings, wharves, larade, and drill 
 grounds for the post of Fort St. Michael. A plat showing auth,.n/.ed locations and 
 grounds, with the name or names of the holders of permits, will be kept in the oflice of 
 
 "'.'.■ 'Thispermit wu[not be negotiable and w ill be of no value or effect until presented 
 to"and recorded by the commanding officer of Fort St. Michael, and the l,..-ation staked 
 out hv him It w ill not be transferable without the approval of the Secretary o W ar, 
 except where both parties to the transfer are on the ground and one desires to dispose 
 of his interest, in which event the commanding officer of Fort St. Michael may authorize 
 the transfer, I'eporting his action to the War Department It will give no right or title 
 to ownership of lands occupied and is revocable at the will ot the Secretary ol W ar 
 
 4 Applications for permission to sell any improvements made through virtue of the.se 
 permfts must be made through the cminianding officer of Fort St. Michae to the Secre- 
 tary of War and will only he approved on the same conditions on which a permit is 
 
 '"5^"pereoii^"aLociations, or corporations occupying lands, buildings, or privileges 
 uuderthe.se permits will be subject at all times to such PoHce K-gulations as maybe 
 imposed from time to time by the commanding officer of Fort St. Michael or higher 
 
 '^'e"* Any modification of this permit, after use, must be applied for in writing and for- 
 warded through the commanding officer of Fort St. Michael for the action of the becre- 
 tirv of War • notice of a proposed termination of the permit will be given by the grantee 
 at least thirty davs before removal, and upon removal fn.m the reservation the perniit 
 will be surrendered to the commanding officer of Fort St. Michael; and the location 
 must be left by the occupants in good sanitary and police condition. 
 
 7 In case of naturallv restricted landings, sites for buildings, ship-yards, etc., no 
 monopoly will be given to any person or corporation, and no permit will be construed 
 to do this and all disagreements between holders of permits will, after a careful hearing 
 by him, be settled by the commanding officer of Fort St. Michael. „,.,.,,u,i 
 
 8 No retail of distilled spirits on the reservation will be allowed ; but this piohibi- 
 tion shall not include light wines or beer. (Section 1955, Revised Statutes ; act approved 
 
 Mav n, 1884.1 
 
 9) It 'is to be understood that these permits are issued subject to any subsequent legis- 
 lation of Congress. 
 
APPENDIX C. 
 
 EXTRACT FROM THE OPINION OF HON. J. M. DICKIN- 
 SON, ACTING ATTORNEY-GENERAL, 
 
 WITH REFERENCE TO THE 
 
 Constitutionality of the Act of Congress giving to the Secretary 
 of War certain powers in regard to unreasonable obstruc- 
 tions to navigation. 
 
 In this case the Secretary of War is made a special tribunal to 
 adjudicate facts. 
 
 It is competent for the legislature to establish, independent of 
 the courts, special tribunals whose judgment shall be final. 
 
 The taxing interests of this country involve by far the largest 
 (luestion so far as value is concerned. The assessment of prop- 
 erty is necessarily intrusted to special tribunals, which operate 
 constantlv and upon a vast scale. They are composed of nonju- 
 dicial officers, and if they pursue the law their conclusions are 
 
 final. 
 
 In Nishimura Ekiu v. United States, 143 U. S., 651, and Fong 
 Yue Ting v. United States, 149 U. S., 698, and Lem Moon Sing 
 V. United States, 158 U. S., 538, it was held that Congress might 
 intrust to executive officers the final determination of facts upon 
 which foreigners might be sent out of or excluded from this 
 country, and that their conclusions could not be reexamined by 
 
 any court. 
 
 Congi-ess has repeatedly passed laws committing the execution 
 of acts in regard to the admission of aliens into the United States 
 to the Secretary of the Treasury, collectors of customs, and to 
 inspectors acting under their authority. (See acts of March 3. 
 1875, chapter 141 (18 Stat., 477) ; August 3, 1883, chapter 376 (33 
 Stat!, 314) ; February 33, 1887, chapter 330 (34 Stat., 414) ; Octo- 
 ber 19, 1888, chapter 1310 (35 Stat., 566).) 
 
 13l'J0 'J <^-->) 
 
130 
 
 By section 3, 23 Stat. , 214, and in similar laws, the Secretary 
 of the Treasury was authorized to establish rules and regulations 
 and to issue instructions to carry out these and other immigra- 
 tion laws of the United States. 
 
 In Enterprise Saving Association r. Zumstein, 67 Fed. Rep. , 
 1000, it was held by the circuit court of appeals of the sixth cir- 
 cuit, in an opinion delivered by Judge Lurton, and concurred in 
 by Judges Taf t and Severens, that in enforcing the postal laws 
 against lotteries it was competent for Congress to intrust to the 
 head of the Post Office Department the determination of the 
 question as to what was a lottery. 
 
 Congress can only legislate in a general way, and large powers 
 are necessarily intrusted to the different departments— such, for 
 instance, as the supervising power given to the Secretary of the 
 Interior over questions of patents and relations to Indians and 
 the public lands. It has been held that he can set aside a survey 
 and order another survey and issue a patent thereon, which is 
 the exercise of judicial power. This right arises from the super- 
 vising power given him under the statute, and the courts have 
 invariably sustained it, and in speaking of this class of powers 
 have said : 
 
 " It is obvious, it is common knowledge, that in the adminis- 
 tration of such large and varied interests as are intrusted to the 
 Land Department, matters not foreseen, equities not anticipated, 
 and which are, therefore, not provided for by express statute, 
 may sometimes arise, and, therefore, that the Secretary of the 
 Interior is given that superintending and supervising power which 
 will enable him, in the face of these unexpected contingencies, to 
 do justice." (Williams v. United States, 138 U. S., 524; Knight 
 V. United States Land Assn., 142 U. S., 181.) 
 
 In McCulloch v. Maryland, 4 Wheat., 316, 421, Chief Justice 
 Marshall said ; 
 
 ' ' The sound construction of the Constitution must allow to the 
 National Legislature that discretion, with respect to the means 
 by which the powers it confers are to be carried into execution, 
 which will enable that body to perform the high duties assigned 
 to it in the manner most beneficial to the people. Let the end be 
 legitimate, let it be within the scope of the Constitution, and all 
 means which are appropriate, which are plainly adapted to that 
 
end, which are not prohibited hut consist wth the Icttei' and 
 spirit of the Constitution, are constitutional." 
 
 It has now been established beyond controversy that C<)n<;ress 
 has the power to inccn-porate national banks and clothe them with 
 large discretionary powers and for the ptu-pose of accomplishing 
 what Congress itself might directly do. 
 
 This power was maintained in McCnlloch v. Maryland, 4 
 Wheat., 316, and in Osborn r. United States Bank. 9 Wheat., 7'SH, 
 mainly upon the ground that it was an appropriate means tor 
 cari-j-ing on the money transactions of the Government. (Legal 
 Tender Case, 110 U. S., 445.) 
 
 In re The Laura, 114 U. S., 411, although the pardoning power 
 is, by the Constitution, vested in the President, the court held 
 that an act authorizing the Secretary of the Treasury to remit 
 fines and penalties incurred by a steam vessel was valid, and it 
 held that to determine other\vise would be to overthrow the prac- 
 tice which had been observed and acquiesced in for nearly a cen- 
 tury. 
 
 In Dorsheimer r. United States, 7 Wall., 1(56, it was held that 
 such power intrusted to the Secretary of the Treastiry is one for 
 the exercise of his discretion in a matter intnisted to him alone, 
 and that it admits of no appeal to any court. 
 
 In all those cases in which it is held that executive officers of 
 the Government will not be controlled by the court in matters 
 in which they have to exercise judgment or discretion, it is ap- 
 parent that large powers are intiiisted by Congress under the acts 
 investing them with authority, and that they really exercise in 
 this way, by delegation, and necessarily so, for the purpose of 
 carrying on the vast affairs of the Government and its details, 
 authority which in a strict sense pertains to Congi-ess. (See 
 Decatur v. Paulding, 14 Pet. , 497-514 ; United States v. Guthrie, 
 17 How., 284; United States v. The Commissioners, 5 Wall., 563; 
 Litchfield r. Register and Receiver, 9 Wall. , 575-577 ; Carrick v. 
 Lamar, 116 U. S.. 426.) 
 
 In United States v. Breen, 40 Fed. Rep. , 402, it was held that 
 Congress can authorize the Secretary of War to make rules and 
 regulations, and can make it a misdemeanor to violate these rules 
 when so made. 
 
 In United States r. Bailey, 9 Pet.. 238. it was held that the 
 crime of perjury, which was defined by statute, could be com- 
 
132 
 
 luitted Ijy taking an oath in conformity with a mere regulation 
 of the Treasury Department. 
 
 In Caha v. United States, 152 U. S., 21'J, in commenting npoii 
 this decision, the court said : 
 
 '"It was held that the Secretary had power to establish the reg- 
 ulation, and that the effect of it was to make the false aifidavit 
 before the jiistice of the peace perjury within the scope of the 
 statixte, and this notwithstanding the fact that such justice of 
 the peace was not an officer of the United States." 
 
 In the Caha case, the court upheld an indictment for perjury, 
 which grew out of proceedings instituted in accordance with 
 regulations of the Interior Department. 
 
 These cases and the case under consideration differ from that 
 of United States v. Eaton, 144 U. S., 677, in which the court 
 held that a failure to conii)ly with regulations made by the Com- 
 missioner of Internal Revenue could not be punished. The rea- 
 son was that the statute had not made such refusal an offense. 
 
 The court said : 
 
 '•It is necessary that a sufficient statutory authority should 
 exist for declaring any act or omission a criminal offense ; and 
 we do not think that the statutory authority in the present case 
 is sufficient. If Congress intended to make it an offense for 
 wholesale dealers in oleomargarine to omit to keep books and 
 render returns, as recpiired by regulations to be made by the Com- 
 missioner of Internal Revenue, it would have done so distinctly, 
 in connection with an enactment such as that above recited, made 
 in section 41 of the act of October 1, 1890. 
 
 ' ' Regulations prescribed by the President and by the heads of 
 departments, under authority granted by Congress, may be regu- 
 lations prescribed by law, so as lawfully to support acts done 
 under them and in accordance with them, and may thus have, in 
 a proper sense, the force of law ; but it does not follow that a 
 thing required by them is a thing so required by law as to make 
 the neglect to do the thing a criminal offense in a citizen where 
 a statute does not distinctly make the neglect in (juestion a crimi- 
 nal offense." (p. 688. ) 
 
 The case under discussion has the element wliich was lacking 
 in the Eaton case, for a statute has distinctly made the neglect in 
 (question a misdemeanor. 
 
133 
 
 The act of July 5, 1884, section :3, makes the Commissioner of 
 Navigations finding conclusive on all questions of iuteri^retation 
 growing out of the execution of the laws relating to the collec- 
 tion of tonnage tax. (N. G. L. S. S. Co. v. Hedden, 4:i Fed. 
 Rep., 17-25.) 
 
 Among the powers confen-ed upon Congress by the eighth 
 section of the first ai'ticle of the Constitution are the following: 
 To provide and maintain a navy. 
 
 To make rules for the government and regulation of the land 
 and naval forces. 
 
 It was held in Djnies v. Hoover. 18 How.. 20. and the decision 
 has never been questioned, that, imder this provision of the Con- 
 stitution, Congi-ess has the authority to establish courts-martial. 
 It was further held that the decision of the court-martial in a 
 matter where it has jurisdiction is final and cannot be reviewed 
 by the courts. (20 How.. 83: Johnson r. Sayre, 158 U. S., 109.) 
 Congi-ess, in establishing courts-martial, provided that the 
 Secretary of the Navy is authorized to establish '-regulations of 
 the Navy," with the approval of the President. (12 Stat., 565; 
 sec. 1547, Rev. Stat.) 
 
 Pursuant to this authority " regulations for the administration 
 of law and justice" were issued on the 15th of April. 1S70. 
 
 It has been held that such regulations have the force of law. 
 (Gratiot r. United States, 4 How., 80: Ex parte Reed, 100 U. S., 
 
 22.) 
 
 Thus the legislative power is not exercised in detail. l)ut a court 
 is established in piirsuance of the power conferred upon Con- 
 gress, and the Secretary of the Navy is clothed with the power 
 of making regulations to control the court. 
 
 This is one of the many instances in which it is essential for 
 the operations of a great Government that matters of detail be 
 intrusted by the legislative department to executive officers for 
 the purpose of giving effect to legislative acts. 
 
 By article 84. Revised Statutes, section 1624, the proceedings 
 of summary courts-martial are to be conducted under such forms 
 and rules as may be prescribed by the Secretary of the Navy. 
 with, the approval of the President. 
 
 Here Congress has constituted a coiirt and it has delegated to 
 an executive officer authority to establish rules for its procedure. 
 
134 
 
 By section 1547, Revised Statiites, the regulations issued by the 
 Secretary of the Navy, and as they might thereafter be altered 
 by him, with the approval of the President, are recognized as 
 the regulations of the Navy. 
 
 In pursuance of these regulations Sayre became ' ' a person in 
 the naval service of the United States. " He was tried by a court- 
 martial, and the Supreme Court refused to review its findings. 
 (Johnson r. Sayre, loS U. S. , 117.) 
 
 By an act of June 23, 1874 (18 Stat. L., 237, 240), an appropria- 
 tion was made to be expended under the direction of the Secre- 
 tary of War for the repairs, preservation, and completion of 
 certain public works and niter alia "for the improvement of the 
 harbor of Savannah." 
 
 A like appropriation -was made by the act of March 3, 1875 (IS 
 Stat., 459), "for the improvement of the harbor of Savannah, 
 Ga." 
 
 Neither of these acts directed the manner in which these 
 appropriations shoxild be expended. The mode of improving the 
 harbor was left to the discretion of the Secretary of War. 
 
 The legislative department declared that the improvement 
 should be made, and devolved the determination of what would 
 or woiild not be an improvement iipon the Secretary of War. 
 
 It was contended that, while Congress had the power to author- 
 ize the construction of a specific work, it could not invest the 
 Secretary of War with such large discretion, and that for this 
 reason the act was void. The Supreme Court sustained the act 
 in South Carolina r. Georgia, 93 U. S., 13. 
 
 In that case, acting under the commerce clause, Congress 
 authorized an improvement. It empowered the Secretary of 
 War to determine what would or would not be an improve- 
 ment, and so the act could not be made effective without the 
 action of the Secretary of War. If he determined the character 
 of the improvement, that was final and the act operated upon it. 
 
 In this case. Congress makes the obstruction to navigation a 
 misdemeanor. It devolves upon the Secretary of War to deter- 
 mine when there is an obstruction and to give the party a hear- 
 ing upon the investigation. When this special tribunal has 
 determined that there is an obstruction, then the act operates 
 upon it as in the former case. 
 
135 
 
 In Miller r. Mayor of New York, 109 U. S., 385, 393, 395, it 
 appeared that Congress authorized the Iniildiug of a liridge over 
 a river, hut the particular bridge authorized was such as should 
 thereafter be approved by the Secretary of War. After the Sec- 
 retary of War fixed by his approval the character of the bridge 
 which was not an obstruction to navigation, then the act oper- 
 ated upon it and authorized the building of the bridge. Until 
 then the legislative license did not go into effect. Here was a 
 complete act in the abstract, but its operation in the concrete 
 was dependent upon the determination of facts by the special 
 tribunal. It was contended that this was an unlawful delegation 
 of the power vested in Congress. The court held to the contrary, 
 saying : 
 
 "By submitting the matter to the Secretary, Congress did not 
 abdicate any of its authority to determine what should or should 
 not be deemed an obstruction to the navigation of the river. It 
 simply declared that, upon a certain fact being established, the 
 bridge should be deemed a lawful structure, and employed the 
 Secretary of War as an agent to ascertain that fact. Having 
 power to regulate commerce with foreign nations and among the 
 several States, and navigation being a branch of that commerce, 
 it has the control of all navigable waters between the States, 
 or connecting \\nth the ocean, so as to preserve and protect their 
 free navigation. Its power, therefore, to determine what shall 
 not be deemed, so far as that commerce is concerned, an obstruc-- 
 tion, is necessarily paramount and conclusive. It may in direct 
 terms declare absolutely, or on conditions, that a bridge of a par- 
 ticular height shall not be deemed such an obstruction ; and, in 
 the latter case, make its declaratic^n take effect when those con- 
 ditions are complied with. The act in question, in requiring the 
 approval of the Secretary before the construction of the bridge 
 was permitted, w^as not essentially different from a great mass 
 of legislation directing certain measures to be taken upon the 
 happening of particular c-ontingencies or the ascertainment of 
 particular information. The execution of a vast niimber of 
 measures authorized by Congress, and carried out under the 
 direction of heads of departments, would be defeated if such 
 were not the case. The efiicicnry of an act as a declaration of 
 legislative will must, of course, come from Congress, but the 
 ascertainment of the contingency upon which the act shall take 
 
136 
 
 effect may be left to such agencies as it may designate. " (South 
 Carolina v. Georgia, 93 U. S., 13.) 
 
 By section 2380, Revised Statutes— 
 
 " The President is authorized to reserve from the public lands, 
 whether surveyed or unsurveyed, town sites on the shores of 
 harbors, at the junction of rivers, important portages, or any 
 natural or prospective centers of population." 
 
 Following strict construction this would be a delegation by 
 Congress of its legislative power. 
 
 In Currier v. "West Side Elevated Patent Ry. Co., 6 Blatch., 
 487, it was held that authority conferred upon commissioners to 
 approve an experimental elevated railroad, and making such 
 approval essential to the continuance in existence of the railroad, 
 was not a delegation of legislative power: 
 
 The creation of a railroad commission to fix reasonable tolls 
 for freight and passenger transportation is not an unconstitu- 
 tional delegation of legislative powers. (Georgia v. Smith, 70 
 Ga., C94.) 
 
 Neither is giving power to the governor to make pilotage reg- 
 ulations. (Martin v. Witherspoon, 135 Mass., 175.) 
 
 The statute providing for the civil service authorizes the Com- 
 missioners and the President to make rules for carrying the act 
 into effect, and the President is authorized to prescribe such 
 regulations for the admission of persons into the civil service of 
 the United States as may best promote the efficiency thereof. 
 (23 Stat., 403; sec. 1753, Rev. Stat.) 
 
 Under the act of February 8, 1887 (24 Stat., 388), power is con- 
 ferred upon the President, when he shall have determined cer- 
 tain facts, to allot land in severalty to Indians on reservations. 
 
 In Field v. Clark, 143 U. S., 649, it was held that Congress 
 might confer authority upon the President to suspend by proc- 
 lamation the operation of the law, affecting the importation of 
 certain articles, upon his determination that any country pro- 
 ducing such articles imposed duties upon the agricultural or 
 other products of the United States which, in his opinion, were 
 reciprocally unequal or unreasonable. 
 
 The court said : 
 
 "Legislative power was exercised when Congress declared 
 that the suspension should take effect upon a named contingency. 
 
137 
 
 What the President was required to do was simply m execution 
 of the act of Congress. It was not the making of law. He was 
 the mere agent of the law-making department to ascertam and 
 declare the event upon which its expressed will was to take 
 effect." (p. 693.) 
 
 I am of the opinion that the sections in question are not an 
 unconstitutional delegation of the legislative function. 
 
APPENDIX P). 
 
 EXTRACT FROM THE REGULATIONS FOR THE GOV- 
 ERNMENT OF THE REVENUE-CUTTER SERVICE. 
 
 ADMINISTRATION AND DISCIPLINE. 
 
 Exercise of Authority. 
 
 681. All persons in the Revenue-Cutter Service are required 
 and strictly enjoined to properly observe and obey the lawful 
 orders of their superiors, and to use their utmost exertions to 
 carry such orders into effect with promptitude and zeal. They 
 shall show to their superiors all proper deference and respect. 
 
 682. Superiors of every grade are forbidden to oppress or mal- 
 treat those imder their command by tyrannical or capricious 
 conduct, or abusive langiiage. Authority over subordinates will 
 be exercised with firmness, kindness, and justice, and each per 
 son shall set an example of morality and devotion to duty. 
 
 68;^. Punishments shall be in strict (^mformity to law and in 
 accordance with the usages of the sea service, and will follow 
 the offense as promptly as circumstances will permit. 
 
 684. In order to avoid unnecessary recourse to boards of in- 
 vestigation, it is directed that when an officer shall be reported 
 for grave misconduct to his immediate commanding officer the 
 latter shall institute a careful inquiry into the circumstances on 
 which the complaint is founded. To this end he shall call upon 
 the complainant for a written statement of the case, together 
 with a list of his witnesses, and such other information as may 
 have a proper bearing upon the charge. He shall also call upon 
 the accused for such counter-statement as he may wish to make. 
 
 685. Officers making either complaints or explanations shall 
 confine themselves exclusively to the facts of the case, and shall 
 neither express an opinion nor impiign the motives of the oppo- 
 site party. 
 
 (139) 
 
140 
 
 686. If, after the investigation of a report against an officer, 
 the commanding officer shall not deem the offense one requiring 
 the action of a board of investigation he shall himself take such 
 action as he may deem necessary within the limits of regulation 
 and law. 
 
 687. If, upon such investigation, the commanding officer shall 
 be satisfied that the charge is such as to call for the action of the 
 Department, he shall transmit to the Secretary of the Treasury 
 a report embracing the charges and specifications relating to the 
 case. Under such circumstances the accused may be continued 
 under suspension or arrest to await the decision of the Secretary 
 of the Treasury. 
 
 688. Should the decision of the Secretary he that no trial take 
 place the accu.sed shall be at once restored to duty. But if it be 
 decided that the acctised shall be brought to trial a board of in- 
 vestigation shall be convened for that puiiiose as soon as the 
 interests of the public service will allow. 
 
 689. Whenever an accusation is made against an officer, either 
 by report or indorsement upon a communication, or charges are 
 preferred against him, a copy of such report, indorsement, or 
 charges shall be furnished at tlie time to the officer accused. 
 
 690. An officer is strictly forbidden to criticise or impugn the 
 character, competency, or motives of another officer in any 
 private letter directed to an officer or person connected with the 
 administration of the Treasury Department. 
 
 691. On complaint being made against an officer, and in every 
 case reqiiiring immediate decision, a commanding officer may 
 suspend or place in arrest an inferior not longer than ten days, 
 unless a further period is necessary to bring the offender to trial. 
 
 692. Officers are not to be suspended for light or trivial of- 
 fenses, bttt for such the commanding officer may exjjress his 
 disapprobation, which, in most cases, will answer the ptirpose of 
 maintaining discipline. An admonition or caution in the ordi- 
 nary course of duty shall not be considered as a reprimand in the 
 sense of punishment. 
 
 693. The captain of a vessel or other competent authority may 
 release temporarily and put on duty an officer xinder suspension 
 or arrest should an emergency of the ser%'ice or other sufficient 
 cause make such measure necessary. This temporary release 
 shall not be a bar to any subseqtient investigation or trial. 
 
141 
 
 694 When a coumianding officer shall suspend, or place in 
 arrest, an officer, he shall call upon the latter for an explanation 
 in writing- of the complaint nia.h' a^ahist him, with a list ot 
 persons t.'. be iiuestioiied, and shall promptly institute an inquiry 
 into the circ-umstances in order to regulate his further proceed- 
 inos If after such inquiry, he shall not deem a report to the 
 Drpartm.'ut reciuisite, the officer shall, within ten days, be 
 restored to duty ; but when it is a complaint of oppression made 
 bv an inferior against a superior officer, and the latter is restored 
 to duty the commanding officer shall, if it be requested, give m 
 writiii"- his reasons for the restoration to the officer making the 
 complaint, who shall have the right of appeal to higher authority. 
 If the complainant shall decide to appeal the commanding officer 
 shall transmit to the Secretary of the Treasury a full statement 
 of the case, accompanied by the statements of the parties to the 
 
 controversy. i 4.1 4. 
 
 095 Oifenses shall not be allowed to accumulate m order that 
 sufficient matter may thus be collectively oV>tained for trial, 
 ^^dthout giving due notice to the offender; and no officer who 
 has been formally reprimanded by the Department for an offense 
 shall be subsequently tried therefor, nor shall the same T)e sub- 
 iect agahi to in.piiry except when it may be necessary to prove 
 a particular habit charged, or tor the due administration of 
 
 iustice. . , 
 
 696 Malicious, vexatious, or frivolous charges against any one 
 will subjec-t the accuser to all the pains and penalties of such 
 
 conduct. . , ,1 1 ; • 1 
 
 697 No person in the Revenue-Cutter Service shall be tried or 
 punished for any crime or offense connected with the service 
 which shall appear to have been committed more than two years 
 before the issuing of the order for such trial, unless for some 
 manifest impediment he shall not have been amenable to justice 
 
 A\nthin that period. 
 
 698 Every officer, when placed in arrest, shall deliver up Ins 
 sword through the arresting officer to the captain of the vessel. 
 He shall coniine himself to the limits assigned him under pam 
 „f dismissal from the service. An officer under arrest shall not 
 visit officiallv his commanding officer, unless sent for; and m 
 case of business requiring attention, he shall make it known in 
 wi-iting. 
 
142 
 
 699. No officer placed iinder siispension or arrest shall be con- 
 fined to his room or restrained from the proper use of any part 
 of the vessel except the quarter-deck, bridge, and pilot house, 
 unless such confinement or restraint shall be necessary for the 
 safety of the vessel or the preservation of good order and dis- 
 
 - cipline. 
 
 700. No officer who may have been placed in arrest has any 
 right to insist upon being tried by a board, or to persist in con- 
 sidering himself under the restraint of such arrest after he shall 
 have been released, or to refuse to return to the exercise of his 
 duty. 
 
 701. Commanding officers shall not impose upon persons under 
 their command any other punishments than the following : 
 
 (1) Upon commissioned officers — 
 
 Private reprimand ; suspension from duty ; arrest or con- 
 finement for a period not longer than ten days, except 
 as provided in paragraph 691. 
 
 (2) Upon enlisted men (for a single offense or at any one time) , 
 
 either — 
 Reduction of any rating established by himself ; confine- 
 ment, with or without irons, single or double, not ex- 
 ceeding ten days ; confinement on bread and water not 
 exceeding five days ; deprivation of liberty on shore ; 
 extra duties. 
 
 702. All punishments inflicted by a commanding officer, or by 
 his order, except reprimands, shall be fully entered in the log. 
 This entry must include the rank or rating of the offender, the 
 date and nature of the offense, and the kind and degree of pun- 
 ishment. The termination of the punishment shall be noted also. 
 
 703. The commanding officer shall use every endeavor to assure 
 himself that subordinates exercise no cruelty toward persons in 
 confinement, and that the latter suffer no unusual treatment 
 without his knowledge and authority. 
 
 704. All reports of miscondiict shall be investigated by the com- 
 manding officer before punishment is adjudged. After inquiring 
 into the facts in each case and according both accuser and accused 
 an impartial hearing, he shall assign a punishment when neces- 
 sary. He shall direct the release of every person confined upon 
 the expiration of the term of confinement. 
 
143 
 
 TO,"). An officer having occasion to report an enlisted man for 
 any cause whatever shall make the report to the executive officer. 
 
 TOO. All punishments consisting of extra diities shall be discon- 
 tinued on Sunday. 
 
 707. Care shall be taken not to confine intoxicated men in siTch 
 a place or manner as may be dangerous in their condition. 
 
 708. No c-ommissioned officer shall take part personally in the 
 arrest of a drunken man further than may be absolutely neces- 
 sary, but the an-est shall always be made by a petty officer or 
 
 seaman. 
 
 701). The commanding officer may restrict or confine a commis- 
 sioned officer to the limits of the vessel for an offense which, in 
 the former's judgment, merits such punishment ; but such restric- 
 tion or confinement shall not continue longer than ten days. 
 
 710. Whenever any person in the Revenue-Cutter Service who 
 shall have been placed under suspension, arrest, or confinement, 
 or otherwise punished for misconduct, shall be released and en- 
 tirely discharged by competent authority, such discharge shall 
 be a "bar to further "disciplinary proceedings in the case as far as 
 the interests of the Service are concerned. 
 
 Redress of Wrongs. 
 
 711. If any person in the Revenue-Cutter Service sliall con- 
 sider himself oppressed by his superior, or observe in him any 
 misconduct, he shall not on that account fail in his respectful 
 bearing toward him, but shall represent such oppression or mis- 
 conduct, through the official channels, to proper authority. He 
 will be held accountable, however, if his representations be found 
 vexatious, frivolous, or false. 
 
 713. An application for a redress of ^^Tong shall be made in 
 
 ■\vi-iting. 
 
 713 When an application for redress of wrong is made to the 
 commanding officer and he shall consider that the alleged uTong 
 is of sufficient gravity to warrant the action of higher authority, 
 he shall submit a report of the case, together ^\^th all the cor- 
 respondence relating thereto, to the Secretary of the Treasury. 
 
 714. No officer has the right to demand a board of investiga- 
 tion on himself or others, the granting of a trial resting solely in 
 the discretion of the officer authorized to convene a board. 
 
APF'JENDIX E. 
 
 EXPLANATION OF GENERAL SCOTT WITH REFER- 
 ENCE TO THE ARMY REGULATIONS OF 182L 
 
 Washington, May 2, 1822. 
 
 Major General Scott has the honor to submit to the committee 
 of the House of Representatives, to which was referred a resohi- 
 tion relative to the regulations of the Army, the following • con- 
 densed statement of facts," and shall be happy to furnish any 
 further explanation in his power that may be required by the 
 committee. 
 
 General Scott compiled all the articles of the book originally 
 submitted to Congress, and many of the others, and was the 
 editor of the whole. 
 
 He brought the manuscript of that part of the book submitted 
 to Congress with him to Washington, in December, 1820, and 
 intended to request leave to superintend the printing of it for 
 the use of Congress ; but his duties called him away from Wash- 
 ington on the 2.Sth or '29th of the same month. As soon as the 
 book was out of the press of the Public Printer, General Scott 
 received, at Philadelphia, some four or five coijies sent to him by 
 request, and from several persons. He immediately perceived 
 that the impression contained many typographical errors; and, 
 on a more attentive examination (which the printed form enabled 
 him to make), he discovered that some parts of the book did not 
 perfectly harmonize with each other, and that pi'inciples laid 
 do^^^l in other articles required a fuller development. Fearful 
 that the book would be immediately acted on by Congress, he 
 hastily sent to the chairman of the Military Committee of the 
 House, direct, a copy containing such corrections as first occurred 
 to him, and proceeded somewhat more at his leisure to render 
 the book as perfect as it was in his power to make it. General 
 Scott has now ascertained that it was on the 30th February, 1821, 
 
14G 
 
 that he sent a copy, with all his corrections, through the War 
 Department, to the same committee. lliis copy was the exact 
 dnplicate of another retained by him, both corrected in red 
 ink, and verified in the most particular manner. About tlie 3d 
 March he received a letter from Gen. A. Smyth, chairman, etc., 
 advising him, General Scott, that the corrected copy had been 
 received, and that the fourteenth section of the act of 2d March, 
 1821, had been added to a bill from the Senate, by way of amend- 
 ment, etc. Early in the same month, General Scott received 
 instructions to put the book to the press for the use of the Army. 
 All the proof sheets of the new impression passed under the in- 
 spection of General Scott, and he solemnly avers that all the 
 articles which had been before Congress for sanction were strictly 
 reprinted from the corrected duplicate copy retained by General 
 Scott, as above stated, and that the article 75 was one of those 
 which had been previously so corrected. He is confirmed in his 
 strong recollection on this .subject by the positive conviction 
 that he received no suggestion from anybody to alter article 75, 
 but was himself induced to insert the words "except in extraor- 
 dinary cases, " at the time the other corrections were made, in 
 order that the rule might correspond with the analogous but 
 stronger case contained in article 4, i)aragraph 1, where the same 
 words will be found. The latter rule has existed in our service 
 since the year 181o, at least. 
 
 General Scott has said, above, that the articles which were 
 first printed for the use of Congress Avere strictly reprinted, after 
 the duplicate copy retained by him. He ought to have said that 
 they were reprinted in the most perfect good faith, as he recol- 
 lects to have made, perhaps, two or three verbal corrections, 
 after the 20th February, 1821, merely with a view to grammat- 
 ical propriety; and he also recollects that article 38 ("organiza- 
 tion of departments") was slightly altered at the time it was 
 reprinted; as tluis: the words "major general of the division" 
 were stricken out, and so was " assisf<(nt." before the words 
 "inspector general." These changes it was thought were ren- 
 dered necessary by the act that sanctioned the regulations, and 
 which gave to the Army a new organization in those particulars. 
 
 Tlie foregoing statement is made on the strength of a memory 
 that has but rarely deceived. General Scott has not had in his 
 
147 
 
 hands (ill all, Jive minutes,) a copy of the regulations as printed 
 for the use of Congress, in the last ten months. 
 All of which is most respectfully submitted. 
 
 WiNFiELD Scott, 
 Major General hi/ brevet. 
 
 P. S.— General Scott begs leave to add, that, to the best of his 
 knowledge and belief, not a principle embraced by the work orig- 
 inally laid before Congress has been changed or impaired by the 
 alterations and amendments above noticed. 
 
 WlNFIELD ScOTT. 
 
APPENDIX F. 
 
 LETTER OF SECRETARY OF WAR BELKNAP, ACCOM- 
 PANYING PROPOSED REGULATIONS OF 1873. 
 
 War Department, 
 Washington City, Febtmary 17, 1873. 
 To the House of Representatives of the United States: 
 
 The Secretary of War has the honor to transmit, for the con- 
 sideration of tile House of Representatives, a system of regula- 
 tions for the administration of the aflE airs of the Army, prepared 
 in accordance with the provisions of section 20 of the act ap- 
 proved July !.■), 18T0. Soon after the passage of that act a board 
 of officers was assembled, who, after much labor and inquiry 
 into the practical needs of the service, finally prepared these reg- 
 ulations, which, with some modifications, are submitted. From 
 the detailed nature of the work it was found impossible to pre- 
 pare it in time to be presented at the third session of the Forty- 
 first Congress, as required by the act. 
 
 It is proper, in submitting them, to observe that they are 
 merely regulations in aid or complement to the statutes, and 
 define and prescribe the details for carrying on the routine work 
 of the Army. The act of July 28. 1866, section 37, chapter 299, 
 declares that the existing regulations shall remain in force until 
 Congi-ess shall have acted iipou a code of regulations to be pre- 
 pared by the Secretary of War. 
 
 The regulations then and now in force are those of 1863. They 
 are ten years old, and no longer adapted to the condition of 
 Army affairs, but under the act of 1866 it is impossible for the 
 Executive to change them. The length of a letter on a knap- 
 sack, for example, being prescribed therein, the Executive has 
 no power to alter its size until Congress shall authorize it, and 
 the regulations now pre.sented \\'ill be subject to precisely the 
 same objection, and if they are to be made law, not to be altered 
 or amended save by act of Congress, there are many provisions 
 
 (149) 
 
150 
 
 that it wmild be wise not to present, as experience may show 
 that alterations may be necessary. The Secretary of War there- 
 fore earnestly recommends to Congress that, if formally ap- 
 proved by that body, they be made subject to such alterations 
 as the President may from time to time adopt. 
 
 Wm. W. Belknap, 
 
 Secretary of War. 
 
APPENDIX G^. 
 
 REPORT OF COMMITTEE ON MILITARY AFFAIRS, 
 HOUSE OF REPRESENTATIVES, 
 
 IN i;f.i;m;i> to thk 
 
 Promulgation of "Revised. Army Regulations " (H. R. bill 844), 
 with vie\v?5 of officers, as published in House Report No. S92, 
 43d Congress, 1st Session. 
 
 In the' twentieth section of the act approved July l.j, 1870, 
 entitled ' ■ An act making appropriations for the support of the 
 Army for the year ending June 80, 18T1, and for other purposes, " 
 it was i)rovided as follows : 
 
 "That the Secretary of War .shall prepare a system of general 
 regulations for the administration of the affairs of the Army, 
 which, when approved by Congress, shall be in force and obeyed 
 until altered or revoked by the same axithority : and the said 
 regulations shall be reported to Congress at its next session: 
 Provided, That said regulations shall not be inconsistent with 
 the laws of the United States." 
 
 In accordance A^th the provisions of the law the Secretary of 
 War caused 'Revised Army Regulations " to be prei)ared by a 
 board of officers, and on the ITtliof February, 1873, the Secretary 
 of War submitted a copy of said "Revised Army Regulations ' 
 to the House of Representatives, accompanied with a note, in 
 which he said : 
 
 "Soon after the passage of that act (July 15, 1870), a board of 
 officers was assembled, who. after much labor and inquiry into 
 tlie practical needs of the service, finally prepared these regula- 
 tions, which, with some modifications, are submitted. From the 
 detailed nature of the work it was found impossible to prepare 
 it in time to be presented at the third session of the Forty-first 
 Congress, as re(iuiivd by the act." 
 
 (151) 
 
152 
 
 This report came to the Military Committee of the Forty-second 
 Congress at such a late day of the session that it was impossible 
 for the committee or the Forty-second Congress to act upon it. 
 
 The Committee on Military Affairs on the 6th of March, 1873, 
 made the following report : 
 
 ' ' That they were referred to them within a few days past ; 
 that they are voluminous, and that there is not sufficient time to 
 consider the same, and therefore ask that the same be printed. " 
 
 Ever since the assembling of the Forty-third Congress the 
 "Revised Army Regulations'" have been under consideration, 
 and the Committee on Military Affairs sensibly feel the gravity 
 and importance of the work comprehended in these regulations, 
 but are far from satisfied that they are just the thing in all 
 respects required for the government of the Army, and therefore 
 hesitate to recommend their adoption by Congress, and thereby 
 give them the force and effect of law for the control of the Army 
 and the management of the military affairs of the country. 
 Doubtless many of the provisions are excellent and would be 
 very desirable, while others are open to objection and which in 
 practice woiild not conduce to the harmonious government of 
 the Army. The committee feel that it would not answer the best 
 purposes of the Army to incorporate the proposed "Revised 
 Army Regulations " into the military system of the country by 
 legal enactment. 
 
 The committee feel fortified and confirmed in this conclusion 
 from the opinions which they have elicited from a number of 
 able and experienced Army officers, to whom the proposed regu- 
 lations were submitted. These officers question the propriety of 
 Congress adopting these regulations, and are of opinion that 
 they would not work to the advantage of the Army. The com- 
 mittee append to this report the statements of these officers upon 
 the subject. 
 
 Army regulations should be flexible, so as to allow of their 
 change or modification as circumstances and the exigencies of 
 the public service may require ; they ought not, in the opinion 
 of the committee, to be absolute, and which could only be an- 
 niilled or changed by act of Congress. 
 
 The Articles of "War should be the fixed law for the govern- 
 ment of the AiTny, and the regulations ought to gi'ow out of 
 
15B 
 
 these as tlie limbs do out of a tree ; the limbs may be cut off or 
 trimmed, but the tree remains. Articles of War and regulations 
 ought to sustain the same relationship to each other. There 
 ought to be power lodged somewhere outside of Congress to 
 make and change regulations when there is occasion for so 
 doing. The committee therefore report the following bill : 
 
 "Be it enacted, etc., That so much of section 20 of the act 
 approved July b"), 1870, entitled 'An act making appropriations 
 for the support of the Anny for the year ending June 80, 18T1, 
 and for other purposes, ' as requires the system of general regu- 
 lations for the Army therein authorized to be reported to Con- 
 gress at its next session, and approved by that body, be. and the 
 same is hereby, repealed ; and the President is hereby authorized, 
 under said section, to make and publish regulations for the gov- 
 ernment of the Army in accordance with existing laws. '" 
 
 Views on proposed neic Army Regidations, by Maj. Gen. W. S. 
 Hancock, Gen. K A. Miles, Gen. John Pope, Gen. E. D. Town- 
 send, Gen. R. B. Marcy, Gen. N. H. Davis, Gen. R. S. Roberts, 
 Gen. J. J. Reynolds, and Capt. Kinzie Bates. 
 
 New York City, January 22, 1874. 
 General: In compliance with your recent suggestion, I have 
 made a general examination of the proposed new regulations for 
 the Army, and having observed some features which particularly 
 struck me as objectionable, I give herewith my views thereon 
 as follows : 
 
 The Constitution of the United States says: "Congress shall 
 have power to make rules for the government and regulation of 
 the land and naval forces." 
 
 The acts of Congress on this siibject read as follows: 
 Act of March 3, 1813: •' It shall be the duty of the Secretary 
 of the "War Department, and he is hereby authorized, to prepare 
 general regulations," etc., "which regulations, when approved 
 by the President of the United States, shall be respected and 
 obeyed until altered or revoked by the same authority. And the 
 said general regulations, thus prepared and approved, shall be 
 laid before Congress at their next session." 
 
 The act of April 24, 1816: " The regulations in force before the 
 reduction of the Army be recognized as far as the same shall be 
 
154 
 
 found applicable to the service, subject, however, to such altera- 
 tions as the Secretary of War may adopt vdth the approbation 
 of the President." 
 
 The act of July 28, 1866: "The Secretary of War be, and he is 
 hereby, directed to have prepared, and to report to Congress at 
 its next session, a code of regulations for the government of the 
 Army, and of the militia in actual service, which shall embrace 
 all necessary orders and forms of a general character, for the 
 performance of all duties incumbent on officers and men in the 
 military service, including rules for the government of courts- 
 martial. The existing regulations to remain in force until Con- 
 gress shall have acted on said report." 
 
 The act of Jiily 15, 1870: "The Secretary of War shall prepare 
 a system of general regulations for the administration of the 
 affairs of the Army, which when approved by Congress, shall be 
 in force and obeyed until altered or revoked by the same aiithority. 
 and said regulations shall be reported to Congress at its next ses- 
 sion : Provide fl That tlie said regulations shall not be inconsist- 
 ent with the laws of the United States." 
 
 Unless the Articles of War be so considered, Congress does not 
 appear even to have exercised directly its constitutional power 
 to ' ' make rules for the government of the land and naval forces ; " 
 but, on the contrary, has placed the labor of preparation on the 
 President and Secretary of War, and reserved to itself only the 
 duty of approving the rules made by these officers. 
 
 The Supreme Court of the United States has decided that "the 
 power of the Executive to establish rules and regulations for the 
 government of the Army is undoubted. The power to establish 
 implies necessarily the power to modify, or repeal, or to create 
 anew." And the Attorney-General has given the opinion that 
 "the War Department, representing the President in the admin- 
 istration of the Army, has permanent authority from Congress 
 to make regulations in aid and complement of statutes." 
 
 The regulations now before Congress for its approval are those 
 submitted in compliance with the act of July 15, 1870, which 
 says that when they are approved by Congress they shall be in 
 force and obeyed until altered or revoked by the same authority. 
 The power which the Supreme Court and Attorney-General find 
 the Executive to possess for establishing regulations and modi- 
 fying, repealing, and creating them anew, will not, therefore. 
 
155 
 
 apply to tlu> proposed code if adopted under this statute. In fact 
 it can not be supposed that it applies to any code adopted by 
 Congress without a special provision of Congress ctnif erring upon 
 the Exec-utive, instead of reserving to itself, the power m .lues- 
 tion On the contrary, it must apply only to those ' ' regulations 
 in aid and complement of statutes " to which the Attorney-Gen- 
 eral refers. 
 
 The article of the Constitution which gives Congress power to 
 make rules for the Arniv would scarcely be regarded if that duty 
 were delegated absolutely and entirely to some one else; and 
 Cono-ress would have t.i repeal the act of Jxily, IHTD. and would 
 place itself in a peculiar attitude if it should confer on the 
 President power to change immediately and entirely a code of 
 regulations which had .iust received Congressional sanction as 
 
 right and wise. 
 
 The foregoing leads to the conclusion that to conform exactly 
 to the Constitution the "general regulations" called for by the 
 act of July, 1870, should be adopted by Congress as the Articles 
 of War now in force were, and that as prescribed in said act 
 they should not be altered or revoked, except by authority of 
 
 Congress. . ■, -, j. 
 
 Furthermore, consideration for the good of the service leads to 
 the same conclusion. There are certain general rules concern- 
 i„o- organization, rank, command, appointments, promotions, 
 rewards punishments, discipline (including military courts), 
 compliments, responsibility for public money and property, etc., 
 which should be established by Congress, known to the service 
 as so established, and changeable only by Congress. This, it 
 seems to me. is necessarv to put into the military service an 
 element of certainty and stability required for its good manage- 
 
 ' But in addition to these rules, in aid and complement of them, 
 issued and administered with them, should come that large mass 
 of regulations, in detail, which the Supreme Court finds the 
 President has undoulited right to make and modify at his 
 pleasure, and which we all know it is necessary- he should so 
 
 make and modify. . 
 
 The code now before Congress, excellent in many respects, is 
 objectionable on account of eml)racing altogether too much for 
 congressional approval or sanction. There are some things m 
 
156 
 
 military affairs which are above, and others which are beneath, 
 congressional action. This code contains both. As an example 
 of the former it is enough to state that it prescribes the manner 
 of conducting marches, sieges, defenses, of fighting battles, etc. 
 That is to say, it establishes rnles to which the science of war 
 must conform. It would be as well to enact rules to govern the 
 science of astronomy. 
 
 The parts of the proposed code here referred to fail to exhiliit 
 that consistency with the laws of the United States which is 
 required by the act of July, 1870, in response to which the code 
 is submitted. They are in fact essays setting forth the views of 
 the writers upon various unsettled military subjects, to which it 
 is manifestly imnecessary that congressional sanction should be 
 given. The effect produced by congressional indorsement of 
 these views may be somewhat mitigated by delegating to the 
 President authority to undo the action of Congress, biit it is cer- 
 tainly far better not to so involve the subject. 
 
 Those things which are lieneath congressional action form a 
 large part of the code, appearing in the details laid dowai for the 
 interior management of bureaus, arms of service, regiments, 
 companies, etc. ; such, for example, as the following, taken at 
 random, in which Congress is asked to enact that ' ' whenever a 
 patient is transferred from the care of one medical officer to 
 another, the account of his case, taken from the record, shall 
 accompany him;'" that "paymasters while making payments to 
 troops shall be in uniform; '" that "immediately after a.man has 
 enlisted the recruiting officer will have his hair cut close," that 
 ' ' during warm weather the ice shall be distributed under the 
 direction of the post commander;" that "the noncommissioned 
 officer in charge of the mess-room will see that no soldier goes to 
 the mess-table unless perfectly clean and in uniform ; " that ' ' cap- 
 tains will require their lieutenants to assist them in the perform- 
 ance of all company diities;" that "on the plains, when forage 
 can not be obtained, grazing shoxild be allowed at every sjiare 
 moment, and as long as possible, especially early in the morning 
 when the dew is on the grass;" that, "when practicable, bran- 
 mash is to be given once a week ; never oftener than twice a 
 week, except to purge;" that "a horse's feet should be stripped 
 with clav or cow manure at least once a week;" and that "the 
 
157 
 
 sheath must be washed once a week with castile soap, and then 
 greased." 
 
 The wisdom of these rnles is not under dis(;ussion. The point 
 made is that tliey do not retpxire the action of Conj^resss and had 
 better be left with the Executive. Furthermore, the code, beside 
 being defective in giving detailed regulations to Congress, under 
 a resolution which called for general regulations for the govern- 
 ment of our service, fails to be fully responsive to the resolution 
 in being to a large extent inapplicable to our Army. This is a 
 grave defect. One serious ditficulty encountered by those who 
 administer, as well as those who obey, our Army regulations is 
 the great number and bulk of them. It is, therefore, a primary 
 consideration that they shall contain nothing but what is neces- 
 sary. They are made "for the administration of the affairs of 
 the Army," and every one of them should be applicable to the 
 affairs of our Army as we are now conducting them, or to its 
 affairs as we are likely to conduct them in case of hostilities. 
 This will not admit of our enlarging the regulations and bewil- 
 dering those concerned with them by embodying in the code a 
 great mass of rules and theories which have no application what- 
 ever to any part of our military organization as established by 
 existing laws; much less will it admit of the introduction of 
 rules for organizations that we have never had, or that we have 
 tried and abandoned. There are many rules in the proposed code 
 coming under these heads ; some of them read as if they had been 
 translated vpyhafim from foreign services. That part of article 
 4 headed ' ' staff, " hereafter (luoted, is a sjimple of this. Another 
 may be found on page 3, reading thus: "The regiment is not, as 
 such, a tactical unit. It is an organization composed of * * * 
 from eight to sixteen batteries, including those at the depot." 
 We have no regiment of artillery <jf either eight or sixteen bat- 
 teries (our regiments containing just twelve). We have no 
 depots for part of the batteries of a regiment, and never had. 
 The nearest approach to this form of organization we ever made 
 was in IH61, when we created some new regiments of infantry, 
 composed each of three battalions, and for a time indulged in the 
 theory that one of them would be a depot liattalion ; but we were 
 disappointed in the practical working of this organization, and 
 subseciuently abolished it by law. Tlien why now encumber the 
 regulations made for our daily guidance with a likeness of it 
 
158 
 
 assumed for the artillery. Many other examples could be given. 
 
 But besides the foregoing objections to tlie general plan of the 
 code, there are objections to certain important particulars in it. 
 It is only practicable here to refer to some of them. 
 
 On page 10 there is a regulation saying that "in each grade 
 officers will take precedence by date of commission or appoint- 
 ment, excepting that whenever military operations may recpiire 
 the presence of two or more officers of the same grade in the 
 same field or department, the President may assign the command 
 of the forces to any officer of the highest grade present, without 
 reference to date of commission. " 
 
 The authority given to the President by the last part of this 
 regulation, to make an exceptional assignment, is directly incon- 
 sistent A\'itli existing laws. The power to make such exceptional 
 assignment was conferred on the President by special act of Con- 
 gress during the late war, but it was repealed by the act of July, 
 1866. 
 
 On page 11 it is stated, "commands are exercised l>y virtue of 
 office or by special assignment of officers having military rank, 
 and who are eligible by law to such commands. " 
 
 The meaning of this paragraph is not plain. The princiiile it 
 should enunciate is that office and rank in the Army are con- 
 ferred by the President and Senate, that they render the officer 
 eligible to command, but that he exercises command by virtue 
 of assignment and not ' " by virtue of office. " 
 
 Page 104. Article LV. is headed ' " Staff. " " The staff is divided 
 into — 
 
 " 1st. The general staff, composed of the generals of the Army 
 who command troops, and the officers who aid them in the direc- 
 tion of military operations. 
 
 "2d. The administration services." 
 
 If this paragraph is not inconsistent with any existing statute, 
 it /*• inconsistent with our military history, the character of our 
 military establishment, and with a long established custom of 
 our service ; (this custom, if not statute law, is generally good 
 law). It is inconsistent \\ntli the definition on page 3, where the 
 theory of the military establishment is given. There we are told 
 that ' ' the staff inchides all officers who aid general officers in the 
 performance of their duties, and those who provide the needful 
 
159 
 
 supplies ami minister to the various wants of the Army. It c(jn 
 sists of a general staff and of special staffs, or administrative 
 services. 
 
 "The general staff includes the chief of staff, the officers of 
 the Adjutant-General's and Inspector-General's Departments, 
 and all officers acting in these capacities," etc. 
 
 The effect of the paragraph imder discussion is, by an obscure 
 definition, to lay the foundation for changing the status of the 
 general officers of the Army. Under our theory and late prac- 
 tice, they have been simply general officers — that is, officers eli- 
 gible to the command of all arms and branches of the .service 
 and exercising that command by virtue of assignment under the 
 rank held by them from the Government, and not by virtue of 
 being the staff officers of some higher functionary by whose dele- 
 gated authority they act. To call them staff officers is an unwise 
 imitation of certain foreign systems — the French, notably — in 
 which all general officers are regarded as on the staff of the sov- 
 ereign, from whom, in point of fact, they derive their authority. 
 
 These remarks apply to the General, Lieutenant General, 
 major generals, and brigadier generals in our service who were 
 appointed to those offices for the puiiiose of acting as command- 
 ers, and not to brigadier generals at the head of certain staff, 
 corps, and departments, who were appointed thereto as staff offi- 
 cers and for staff duties. 
 
 The manner of appointment in these two classes is of itself 
 evidence that the members of the latter class do, and those of 
 the former do not belong to the staff. 
 
 Again, withoiit discussing the technical meaning of the word 
 "staff," it is safe to say that with iis a staff officer does not, as 
 such, command, but that he is necessarily an officer whose duty 
 it is, directly or indirectly, to aid some commander in carrying 
 out his, the commander's, views. In this light the general offi- 
 cers of our Ai'my do not belong in the paragraph of the jiroposed 
 code quoted above, and headed " "Staff." 
 
 On page 1, under the head of "Theory of the military estab- 
 lishment," we are told that "the Army is composed of the troops 
 and the staff." This, in a foreign language, may be a correct 
 definition for some foreign army, Init in English it does not con- 
 vey a coiTect idea; certainly not to \is, in relation to our Army. 
 The word ' ■ troops " is immediately afterward defined as meaning 
 
160 
 
 "organized corps or bodies of combatants." This is giving an 
 undue restriction to the meaning of "tro()ps." It is a word in 
 such conmion use that its accepted signification shoukl not be 
 changed in regulations ; certainly not unless to gain some greater 
 good than has yet appeared. We say the British troops, the 
 rebel troops, the white troops, the regular troops, the volunteer 
 troops. We tell a commander to bring up his troops, march off 
 his troops, etc., never limiting the meaning of the word to 
 "organized corps or bodies of combatants, " and excluding the 
 staff, etc. The word "line" should be defined as used in x>hrase 
 "details in the line," page 4. Is it equivalent in meaning to 
 "troops?" 
 
 On page 15 it is set forth that "no officer .shall be commis- 
 sioned on the staff who has not, for at least one year jiist pre- 
 vious, been on duty with troops." The meaning of this rule is 
 doubtful. Is it the intention that officers now in the staff shall 
 not, when promoted to a higher grade, be commis.sioned unless 
 they have been "on diity with troops at least one year just pre- 
 vious," or is the restriction to apply only to officers when first 
 appointed to the staff ? Again, what is meant by "on duty with 
 troops ? " Is the commanding general of an army, an expedition, 
 or a military department "on duty with troops V" If so, is not 
 his staff" on duty in like manner ; or is the character of an officer's 
 service in the case under consideration to be decided solely by 
 considering his station— his place of abode- for the time being ? 
 
 Whatever the correct answers to these questions may be, it 
 seems clear that this regulation imposes, to say the least of it, an 
 unnecessary limitation on the appointing power. The best qual- 
 ified and most deserving shol^ld be selected to be commissioned 
 in the staff, and it would be wrong to the service and to the 
 individual to exclude any such for not having "been on company 
 or regimental duty at least one year just previous." 
 
 When officers likely to be commissioned in the staff are not 
 with their companies, it is because they are properly absent for 
 reasons satisfactory to the authority coinijetent to decide svich 
 matters, and usually in the performance of duties which es- 
 pecially fit them for positions in the staff". 
 
 The object of the regulation is, dou])tless, to coerce officers 
 into remaining with their companies, and thus contribute to 
 obtaining, by a kind of indirection, an object which the Secretary 
 
161 
 
 of War and General in Chief can always secure by direct action, 
 if they deem it desirable. This regulation is similar in its gen- 
 eral cliaracter and object to that which immediately follows it, 
 saying that "colonels of regiments and captains of companies 
 will not be placed on any duty (except general courts-martial 
 and courts of inquiry) which shall separate them from their 
 commands, without the special order of the President, " etc. 
 
 It is a fact within the experience of all of us, colonels and cap- 
 tains are needed with their regiments and companies, and it is 
 for this reason the law authorizes them, and generally they are 
 with their proper commands; but it is nevertheless a fact that 
 there are exceptional instances when these ofl&cers can render 
 more valuable service on detached duty. The President can not 
 look into these details, and the power should be left with those 
 who actually control the Army to i)lace all subordinates where 
 they will do the most good. Whether that is Avnth a regiment 
 or company, with a general officer or a board to make regula- 
 tions for the Army or the like, can be better decided in each case 
 by commanders, as it comes up with the facts, than by a general 
 rule made in the regulations to meet the case before it arises. 
 General regulations to cover exceptional cases usually do more 
 harm than good. 
 
 For consistency the paragraph regarding the absence of cap- 
 tains should be made to agree with the one on page 36. There 
 it is stated that captains "are subject to the temporary details 
 of service as far as courts-martial, military boards, " etc. ' ' Mili- 
 tary boards," etc., maybe construed to authorize absence for a 
 variety of purposes: whereas, the paragraph on page 15 forbids 
 the absence of captains of companies for any duty except ' ' gen- 
 eral courts -martial and courts of inquiry." 
 
 On page 4 it is stated "The command of a division or depart- 
 ment will embrace all the regular forces stationed within it, as 
 well as such volunteer and militia as may be called into the 
 service of the General Government to aid in its defense." 
 
 This general rule is immediately followed by a long list of 
 exceptions in these terms: "The Military Academy, engineer 
 troops, general depots of supplies, all arsenals, permanent forts 
 in process of construction or extensive rei)airs, general recruiting 
 depots, and officers employed on duty not military, are excepted 
 
 13100 II 
 
162 
 
 from the operation of the foregoing paragraph, at the discretion 
 of the Secretary of War. " 
 
 The rule and the exceptions nearly neutralize each other. In 
 fact, the only rule which can be safely announced on this point 
 is the general one hereinbefore enunciated, to the effect that 
 officers command according to their assignment. The order 
 making an original assignment should set forth what it embraces. 
 Commanders succeeding the first one exercise authority to the 
 same extent their predecessors did, unless otherwise ordered. 
 
 The sixty-second article of war provides about all the excep- 
 tions that should be made to the foregoing principle of assign- 
 ment. It says: "If, upon marches, guards, or in quarters, 
 different corps of the Army should happen to join or do diity 
 together, the officer highest in rank of the line of the Army, 
 Marine Corps, or militia, by commission, there on duty or in 
 quarters, shall command the whole, and give orders for what is 
 needful to the service, unless otherwise specially directed by the 
 President of the United States, according to the nature of the 
 case." 
 
 The next paragraph on this page (4) defines the authority of 
 division commanders thus: "The commander of a geographical 
 division exercises a supervision over the affairs of the depart- 
 ments under his control similar to that which a general com- 
 manding an army in the field woiild exercise over his subordi- 
 nate commanders, without necessarily interfering with the 
 administration of the commanders." 
 
 This is too indefinite for regulations. The division commander 
 may be not sufficiently familiar with the ' ' control which a gen- 
 eral commanding an army in the field would exercise, " to make 
 this regulation any guide to him. The last part of the regula- 
 tion telling the division commander not to interfere unneces- 
 sarily with the administration of his department commanders is 
 hardly needed, as he is quite certain to think it necessary before 
 he interferes. 
 
 On page 16 rules governing leaves of absence to officers are 
 given. Post commanders may grant seven days, department 
 commanders thirty days, and division commanders sixty days 
 (including any leave granted by department commanders ) . Then 
 it is stated that ' ' all applications for a leave of absence for a 
 
ir,3 
 
 tiuie exceeding four months will be subuiittetr through th." 
 proper channels to the Secretary of War for approval." 
 
 The code, probably throuKh oversight, does not give anyone 
 authoritv to grant leave for a period between sixty days and four 
 months, and does not give the General of the Army authority to 
 grant any leave at all. 
 
 On page 107, imder the head of "Transfer of supplies," it is 
 
 stated : 
 
 "The Subsistence Department will be responsible for and have 
 control over the transportation of its supplies. Purchasing and 
 depot commissaries will arrange for all transportation of their 
 supplies whenever rail or water transportation can be contracted 
 for or hired. 
 
 "Where supplies are to be transported to posts away from rail 
 or water, the commissary will make requisition upon the depot 
 quartermaster at the place or point where such supplies leave 
 rail or water, for the Government wagons, etc., necessary for 
 their transportation to their destination. If the (luartermaster 
 can not furnish such Government transportation, the commissary 
 will hire wagons or contract for the delivery of the supplies at 
 the place of destination. At points of transhipment wdiere there 
 are no suitable public buildings, the commissary will hire or build 
 such storehouses as may be necessary to preserve the supplies." 
 
 There is no proof that defects in the present system of trans- 
 ferring supplies render a change of that system necessary, nor 
 that the change proposed would remedy the defects if they 
 existed. The only argument that I know of put forward in sup- 
 port of this change is that the officers of the Subsistence Depart- 
 ment giving general satisfaction in the pirrchase of provisions, 
 they would, if made also responsible for their delivery, be more 
 successful in providing transportation and store-room for what 
 they purchase than the officers of the Quartermaster's Depart- 
 ment are. This conclusion is quite unwarranted. The duty of 
 purchasing provisions, and the duty of getting them to their 
 destination, are entirely different. The power of pleasing is 
 embraced in the very nature of the former, while that of disap- 
 pointing and displeasing is almost inseparable from the latter. 
 The transaction between buyer and seller, especially where the 
 former has cash to pay, is a very simple one, resting \\'ith two 
 individuals and closed up at once. Transporting the thing 
 
164 
 
 bought is by "no means simple; it involves arrangements, con- 
 tract, etc., with individuals, railroads, ships"; steamboats, wagons, 
 and the like, which in their execution occupy a long time, and 
 this service can not be constantly under the control or even the 
 eye of the Government officers responsible for its execution. 
 
 These inherent differences can not be removed or affected by 
 transferring the transportation service from the Quartermaster's 
 Department to the Subsistence Department. The good of the 
 service, so far as it depends fm systems, will certainly be more 
 apt to be secured by having the transportation for the whole 
 Army done by the Quartermaster "s Deiiartment, as now, and 
 pursued therein as a specialty, which its importance demands, 
 than liy the change proposed. 
 
 I raise no (question here as to whether the piirchasing of siip- 
 plies could be done by the Quartermasters Department. What 
 I mean to assert is, my opinion that the transportation service 
 for the entire army should be conducted by the Quartermaster's 
 Department. 
 
 This regulation has the special objection of not stating posi- 
 tively whether wagon transportation for subsistence stores shall 
 Ije furnished by the Quai-termaster or Subsistence Department. 
 The latter must provide the railroad and water transportation ; 
 but when it wants wagon transportation, it must first apply for 
 it to the Quartenuaster's Department ; if this application fails, 
 it then gets its own wagou.s, etc. Here doubt, confusion, and 
 delay will inevitably arise. Besides, the chiefs of these two 
 Bureaus will never know how much transportation each may 
 have to furnish during the year, and will not be able to make 
 understandingly estimates for transportation appropriations. 
 
 Without going further into the siibject, I venture the predic- 
 tion that the jjroposed regulation would in time of peace result 
 in confu.sion and unnecessary expense, and in time of war in 
 greater mischief. 
 
 (Pages 67, 68, and 69.) It is thought to be hostile to the l)est 
 interests of the service that artillery and engineer forces when 
 assigned to Anny corjjs and divisions sliould be on the footing of 
 troops "attached" for service merely, or that they should under 
 such circumstances foi-m special and to a degree independent 
 commands under officers of theii* owti corps or ann of service. 
 
K.5 
 
 Tho pavaiiraph reforrod to, paiije (iS, evidently coiitomplates 
 officers eoininaiuliiiK engineers or artillery forces serving with 
 corps or divisions shall he, in a measure, independent of corps 
 and division commanders (this may certainly he inferred from 
 that portion of the paragraph which provides for their appointing 
 general courts-martial, etc.), thus giving the engineers and artil- 
 lery superior authority in matters of courts-martial and other- 
 wise (-w-ithin the corps or division), to tlie commanders of tho.s(> 
 hodies. This would place the corps or division commanders in 
 subordinate positions to the artillery and engineer commanders 
 of the same Army, regardless of what their relative rank might 
 be. It is thought to he common sense and much safer that those 
 commanders who tight the troops in time of war, and are respon- 
 sible for the success or failure of the operations, should have the 
 same control of those special arms as they have over the other 
 arms not designated as special, rather than to have them subject 
 to the commands of officers who would not be responsible whether 
 the battle was lost or won. Such a regulation, when brought to 
 the test of practical operation in the presence of an enemy, would 
 undoiibtedly lead to confusion and failure. 
 
 It is believed that the effect of paragraph 9, page 69, would be 
 mischievous and subversive of discipline. It directs officers oi 
 engineers and artillery to make reports of ' ' their operations ir 
 all that concerns their specialties " to the headquarters of theii 
 respective arms, and this when they may be serving immediately 
 under the orders of corps or division commanders, and notwith- 
 standing they are r. (paired to make a report of their operations 
 to their corps or other immediate commander, which he might 
 or might not approve in detail, a copy of which is to be sent to 
 the headqiiarters of their special arms (without even waiting 
 for the corps commander's remarks or approval) ; they are here 
 invited to give their own versions of the same operations in a 
 special report, a cojiy of which is not required to be sent to the 
 corps commander, and which is not even directed to be trans- 
 mitted through him, thus in a very peculiar way, calling for 
 separate reports of the same operations, which may differ, and 
 one of which is concealed from the view of the corps commander. 
 In regard to the service of artillery in times of active opera- 
 tions, it is believed that the most i)racticable and efficient system 
 is that of assigning batteries (from the reserve artillery of the 
 
ion 
 
 Army) to tlie different Army corps, amU placing at the corps 
 
 headqnarters an officer of that arm who shall perform the duties 
 
 of chief or commander of the artillery of the corps under the 
 
 orders of the corps commander. This was the system pursued 
 
 in the Army of the Potomac in the latter part of our late war, 
 
 and was found to answer well its purpose when strictly carried 
 
 out and not interfered with by the chief of that arm at superior 
 
 headquarters, who may or not be on the ground, and who may 
 
 be disposed to have the artillery used according to his o\\ni views, 
 
 although he has no responsibility (as the commander of the 
 
 troops has) to make his judgment careful. As an instance in 
 
 point, when this system was interfered with, I may state here 
 
 that at " Gettysburgh,'" during the last day of the battle, when 
 
 I conamanded the left center of our army, composed of three 
 
 corps, there was a portion of my line on which there was no 
 
 infantry, and while the enemy's great cannonade was in progress, 
 
 just previous to their grand assault, I rode to that point and 
 
 found that the guns of a battery posted there were silent, 
 
 although other batteries on the line were firing slowly. I sent 
 
 orders by my chief of artillery to the commander of the battery 
 
 (which happened to belong to the reserve artillery of the Army, 
 
 and had been sent up to strengthen that part of the line during 
 
 the assault then impending), to open fire at once, so that it would 
 
 appear to the enemy that that point was strongly defended, it 
 
 being very undesirable on account of there being no infantry 
 
 there that the enemy should select that point for their attack. 
 
 This order was not obeyed, and I was informed that the battery 
 
 commander had orders not to fire, from the chief of artillery of 
 
 the Army of the Potomac. I then rode to the battery myself, 
 
 and was actually compelled to threaten force on my own line of 
 
 battle before I could cause the battery to fire upon the enemy. I 
 
 would have been held responsible in the event of the loss of the 
 
 line, while the chief of artillery of the Army would have had no 
 
 responsibility in that event. 
 
 The length of this communication precludes reference to other 
 
 points in these regulations which strike me as defective. 
 
 Respectfully submitted. 
 
 WiNFD S. Hancock, 
 
 Major General, U. S. A. 
 Gen. W. T. Sherman, 
 
 United States Army, Washington, D. C. 
 
167 
 
 War Department, 
 Washington City, January 27, 187^. 
 Sir- I have the honor to inclose for your consideration, in con- 
 nection with the new Army Regulations, copy of a letter dated 
 December 80. 1873, from Col. N. A. Miles, Fifth Infantry, pre- 
 senting objections to that part of the regulations which restricts 
 the tenure of office of regimental staff officers to two years con- 
 tinuous service, with indorsements thereon of the Adjutant Gen- 
 eral and Inspector General of the Army. 
 
 Very respectfully, your obedient servant, 
 
 William W. Belknap, 
 
 Secretary of War. 
 
 Hon. John Coburn, 
 
 Chairman Committee on Military Affairs, 
 
 House of Representatives. 
 
 Headquarters Fifth United States Infantry, 
 
 Fort Leavenworth, Kans., December 30, 1873. 
 Sir • In the new Army Regulations printed for the use of mem- 
 bers of Congress, and to be acted upon during the present session, 
 appears the f ollomng paragraph : , ■, ^ 
 
 'No officer will be appointed adjutant or regimental quarter- 
 master, who has not served at least one year immediately preced- 
 ing such appointment ^nth his company, and no officer shall hold 
 a staff appointment in his regiment for a longer period than two 
 years at any one time. " 
 
 To the adoption of this paragraph I have the honor to urge the 
 following, as I conceive, cogent objections. 
 
 In the first place, from the standpoint of a regimental com- 
 mander : The status of the regimental staff, with ref ereiic^e to the 
 re-imental commander, is very closely analogous to that ot the 
 personal staff of general officers with reference to the genera , 
 and upon this latter selection, and on the duration of such detail 
 no other restriction is in fact imposed than that of the rank of 
 the officers selected. A regimental commander m selecting his 
 staff desires of course to secure competent, well-informed officers 
 of undoubted probity; but beyond this, and a matter scarce y 
 second to it, he desires that his staff should be so thoroughly 
 honorable, congenial, and in sympathy with him, that the most 
 
108 
 
 intimate official and personal relations may subsist between 
 tliem. and that his ideas and plans may be cordially seconded and 
 carried out by them. Only a slight acquaintance with men is 
 necessary to prove that the first class of qualities frequently exist 
 without the latter. 
 
 Under existing orders a commanding officer is made, conjointly 
 with his staff, responsible for the public property for which the 
 staff officer makes returns. Such responsibility should not exist 
 without the corresponding liberty to select the subordinates, in 
 whose honor and probity he has confidence, to be intrusted vnth 
 the custody, transfer, and expenditure of the property in ques- 
 tion. If, then, a regimental commander should find those who, 
 in his estimation, combine in a good degree these essential qual- 
 ities, why should he be deprived of their services immediately 
 upon becoming thoroughly acquainted with them? 
 
 If the system of rotation or transfer of officers from staff to line 
 duties is addiiced in support of the proposed change, I would re- 
 spectfully invite attention to the fact that without such change 
 and under the present system that desirable result is secured in 
 the case of regimental staff officers alone of the entire Army. 
 For, before receiving an appointment as regimental adjutant or 
 quartermaster, a subaltern must serve long enough with his reg- 
 iment to prove his capacity and general worthy character, and 
 this time usually includes his entire service as second lieutenant, 
 and a part of his service as first lieutenant, at least five years in 
 all as an average. Having been appointed a regimental staff 
 officer, he can only hold that position while a subaltern, and, of 
 necessity, returns to duty in the line immediately upon promo- 
 tion to a captaincy ; thus, as I have said, experiencing the sup- 
 posed desirable alternation of line and staff duties. If the change 
 from staff to line duties is considered advisable, why should not 
 this principle be equally applicable to the general staff of the 
 Army ? 
 
 From the standpoint of a regimental staff officer I would urge 
 that frequent changes, involving changes of station and of rela- 
 tions with officers, would necessitate great expense ; that large 
 property accountability is incurred, and, in the settlement of 
 accounts, much difficulty results if frequent changes are required ; 
 that at least half of the two years permitted would be required to 
 become thoroughly accustomed to new duties ; and that (inasmuch 
 
as each new, permanent lei^inienlal cDniniander generally makes 
 a now selection of statf officers) from death, resignation, retire- 
 ment, or permanent detachment of regimental commanders, the 
 tenure of office of a regimental staff officer is now very preca- 
 rious, and instances are rare in which some one of these casualties 
 does not return such officer to line duty long before he receives 
 the captaincy which, as before stated, necessarily terminates his 
 staff position. 
 
 The regimental commanders, with the aid of their staffs, admin- 
 ister the affairs of the regiments, that is of the entire line of the 
 Army. Inasmuch as the proposed change would affect disad- 
 vantageously the administration of affairs by these officers, it 
 follows that the Army would not be benefited but injured by it. 
 and I most urgently request that these objections may be referred 
 to the Military Ccmimittees in the Houses of Congress, to be dtily 
 weighed before the new regulations are adopted. 
 
 I have the honor to be, very respectfully, your obedient serv;int, 
 
 Nelsox a. Miles, 
 Colonel Fifth Uiiited States Infantrij, 
 
 Bvt. Maj. Gen. U. S. A. 
 
 The Hon. Sec;retary of War, 
 
 Washington, D. C. 
 
 [Indorsements.] 
 
 Headquarters Department of the Missouri, 
 
 Fort Leavemi-orth, Kans., January ,i, 187 J,. 
 Respectfully forwarded to the assistant adjutant general, head- 
 quarters Military Division of the Missouri. 
 
 The general views of Colonel Miles, Fifth Infantry, on the 
 within subject, are fully concurred in by the department com- 
 mander. .^ 
 
 John Pope, 
 
 Bvt. MaJ. Gen. U. S. A., Commanding. 
 Adjutant General's Office, January 17, 1874- 
 Respectfully submitted to the Secretary of War. There is 
 much force in Colonel Miles's objections to the regulati(ms referred 
 to. There may be a few cases where colonels will not make the 
 best selections, but they will be very few compared to those where 
 unsuitable officers would be placed in regimental staff positions 
 bv detail. 
 
 E. D. TOWNSEND, 
 
 Adjutant General. 
 
iro 
 
 War Department, 
 Inspector General's Office, January 21, 1874. 
 
 Respectfully returned to the Secretary of "War. 
 
 The paragraph herein alluded to, was introduced by the board 
 for the reason that regimental staff duties are generally regarded 
 as more desirable than service with companies ; and as there are 
 generally several subalterns in every regiment competent to fill 
 those positions, they woiild endeavor to quali,fy themselves for 
 the performance of staff duties if the regulation was adopted. 
 
 In this way a much larger number of officers would be educated 
 in staff duties than under the existing system, and would be 
 available for organizing large amiies in time of war, or for pro- 
 motion in staff corps or departments. 
 
 I see no objection to this paper being refeiTed to the Military 
 Committee of the House of Representatives, as Colonel Miles 
 desires. 
 
 R. B. Marcy, 
 Inspector General U. S. A. 
 
 Fort McPherson, Nebr., October SO, 1873. 
 
 My Dear General: The copy of proposed Regulations for 
 the Army, including revised Riiles and Articles of War, was duly 
 received. I have glanced over them Avith considerable care, and 
 hope they vdU be adopted by Congress. The suggestion of the 
 Secretary of War should, by all means, be included, viz, "sub- 
 ject to such alterations as the President may from time to time 
 adopt." 
 
 There is one point to which I would in\dte special attention (if 
 I am not acting officiou.sly in so doing). The Articles of War 
 and Regulations should be very slightly modified so as to con- 
 form to G-eneral Order No. o. Headquarters Army, Washington, 
 D. C, June 20, 1873. This order was issued, after the new regu- 
 lations had been reported, for good and sufficient reasons ; it is 
 in strict accordance with the spirit of existing laws, and pro- 
 duces uniformity and harmony in the service. 
 
 The only change required would be simply to add to the para- 
 graph preceding the Rules and Articles as now numbered, page 
 204, these words : ' ' And the term ' company ' shall embrace the 
 jninimum unit for administration in all arms;" and omit the 
 
in 
 
 words "troop and battery" from articles 13, 35. 3S, 39, 44, 45, 50, 
 73 74 and^<4; and direct that in printing the Regulations the 
 Articles of War shall be adhered to. This will require but few 
 and very slight changes. 
 
 I can not enter more into detail without troublmg you with a 
 Ion- letter Would like very much to have two hours' interview 
 with the Military Committee before action is taken on these 
 regulations, but that is not in my power. As a whole they are 
 excellent, and by far the best system we have ever had. 
 I am. General, very truly yours, 
 
 J. J. Reynolds. 
 
 Hon. John Coburn, 
 
 Ind ia napolis, India na. 
 
 War Department, 
 Washington City, February J, 1S74- 
 Sir- I have the honor to inclose for your consideration, in con- 
 nection with the new Regulations for the Army, copy of a letter 
 of the l()th ultimo from Captain Kinzie Bates, First Infantry, 
 su-gesting the appointment of councils of administration, c-om- 
 nosed of enlisted men, to audit the accounts of "company funds, ' 
 with opinion, indorsed thereon, of Maj. Gen. W. S. Hancock, 
 commanding Military Division of the Atlantic. 
 Very respectfully, your obedient servant, 
 
 Wm. W. Belknap, 
 
 Secreta<y of War. 
 
 Hon. John Coburn, 
 
 Chairman Committee on Military Affairs, 
 
 House of Bepresentatives. 
 
 Fort Brady, Michigan, January 10, lS7i. 
 Sir- The suggestion of General Ord, that where enlisted men 
 are tried by courts-martial, that some of their peers be detailed 
 to sit on their courts, has re-awakened an idea of mine in regard 
 to the company fund. I do not for a moment imagine that the 
 follo^ving plan is original with me, but as I have never seen any 
 
] 7-2 
 
 mention of it, I simply forward it in the hope that it may be 
 worthy the attention of the Commanding General. Numerous 
 complaints are made in the Army and Navy Journal in regard 
 to the expenditure of the company fund. I believe these com- 
 plaints can be done away with by a company council of admin- 
 istration to consist of three enlisted men, one of whom should be 
 a noncommissioned officer, who should audit the accounts. The 
 proceedings to be approved by an officer's council, consisting of 
 the captain and subalterns of the company. In case of a disap- 
 proval of the enlisted men's council by the officers, the matter 
 to be referred to the colonel of the regiment for his decision. 
 I remain, sir, very respectfully, youx's, etc. , 
 
 KiNziE Bates, 
 Captain First Infantry, Commanding Post. 
 Assistant Adjutant General, 
 
 Military Division of the Atlantic. 
 
 [Indorsenieiit.] 
 
 Headquarters Division of the Atlantic, 
 
 JVeir York, January 24, IS74. 
 
 Respectfully forwarded to the assistant adjutant-general, head- 
 quarters of the Army. 
 
 I regard the suggestion made within as worthy of considera- 
 tion in connection with the adoption of a new code of regula- 
 tions. 1 understand that the messing expenditures of squads in 
 the British service, though supervised by their officers, are con- 
 trolled by the men themselves on a plan similar to the one pro- 
 posed for the company fund, and that it works admirably. 
 
 That part of the regulations in regard to company funds, now 
 before Congress, authorizes an inspection of the said fimd by the 
 enlisted men. The object of the new regulations in this partic- 
 ular would, I think, more probably be obtained by some such 
 systematic plan as that herein suggested, than by the indefinite 
 one in the proposed regulations. (See page 45 of Code now before 
 Congress, or House Doc. 85 of Forty-second Congress, third ses- 
 sion. ) I do not, however, commit myself to General Ord's sug- 
 gestion as to detailing enlisted men on coiirts-martial. 
 
 WiNFD S. Hancock, 
 Major General Cominanding. 
 
1 ::5 
 
 Inspector General's DKrAUTMEXT, 
 
 Neic York City, Fehniarij //, 1874. 
 General • I have the honor to submit th(> foHowing in response 
 t.. the reciuest of yoiir committee, with regard to the code of Army 
 Regiihitions recently prepared by aboard of officers and submitted 
 to Congress for its action thereon. 
 
 The foHowing mentioned changes are respectfully suggested, 
 
 with reasons therefor : ^ ■ ^ ^ •• 
 
 (Page 3.) In first line, last paragraph, insert before ••mtantry, 
 the word ■ ' cavalry, " and in the second line omit, " ' in the c^avulry 
 
 the troop." 
 
 Reason- To accord with War Department orders. 
 
 (Pa^e r. ) Add to paragraph four, '"and the Secretary of War" 
 may authorize the enlistment of general-service men for the 
 inspectors-general. " 
 
 Reason Because no clerks are furnished inspectors-general, 
 who have important and responsible duties to perform retiuiring 
 
 clerical aid. 
 
 (Page 15.) Omit paragraph three under Article Xll. 
 Reason- This paragraph would prohibit in some cases the 
 appointment of worthy and suitable officers who may have been 
 ordered on duty, not with troops. 
 
 (Page 15.) Next paragraph, omit first two and third lines to 
 include ' ' President, " and then read, ' ' Colonels will not be absent 
 from their commands longer than two years," etc. 
 
 Reason: Because the paragraph as it stands would often pre- 
 vent details demanded by the good of the service. 
 
 (Page 16. ) Under Article XIV, after paragraph five, add this 
 paragraph: '"The General in Chief may grant leaves of absence 
 for a period of four months." 
 
 Reason: Authority for the General in Chief to grant leaves of 
 absence, seems to have been omitted. 
 
 (Page 18. ) Under Article XVI. in first line of fourth paragraph, 
 substitute for "censure," -'admonition." 
 
 Reason : ' ' Censure " implies punishment, which should only be 
 inflicted after a legal hearing, conviction, etc. 
 
 (Page 22. ) Under Article XXI. first paragraph, change to read, 
 •'the commander of a post may give furloughs to soldiers of his 
 command as he shall judge," etc. 
 
K4 
 
 Reason : The companies of a regiment are generally stationed 
 at several posts, and sometimes in different districts and depart- 
 ments, over which the regimental commander has no control. 
 
 (Page 35.) In last line of fourth paragraph, read "three years" 
 for " two years. " 
 
 Reason : This period I think better. 
 
 (Page 35.) In the second line of the next paragraph, read "six 
 months'" for "three months." 
 
 Reason : Same as above. 
 
 (Page 38. ) To the last paragraph add, "and bedding." 
 
 Reason: An important matter, affecting health and personal 
 cleanliness. 
 
 (Page 39.) In the first paragraph, second line, after the fir.st 
 ■ ' the ■' add • ' quarters. " 
 
 Reason : Probably unintentionally omitted. 
 
 (Page 44.) In the second line, fifth paragraph, substitute 
 "thirty-three and one-third per cent." for • fifty per cent." 
 
 Reason: This sa%-ing comes from the soldier's ration, and 
 should be so used as to contribute the most to his benefit, which 
 will be the case by giving the larger portion to the " post fund," 
 there being usually few companies at regimental headcpiarters. 
 This change accords with the A-iews of oflBcers generally, as 
 expressed to me. 
 
 ( Page 53. ) Under Article XL. fourth paragi'aph. in first line, 
 add after •"moniing " '-the company quarters. me.sses, and kitch- 
 ens, daily. ' 
 
 Reason : A very necessary and important duty. 
 
 (Page 100. ) In last line of last paragi-aph. change to read 
 after •will be." "covered into the United States Treasury. ' 
 
 Reason : Required by act of Congress. 
 
 Tlie eighty-eighth article of war should be changed, extend- 
 ing the limitation of time ^^^thin Avhich a person may be brought 
 to trial. 
 
 Reason : For the interests of the service. 
 
 Remarks. — The above-suggested alterations are what appear 
 to me proper, from the limited time I have had to examine the 
 sitbject, in addition to those made in the War Department copy, 
 which have been marked in the copy received from you. 
 
 I think it advisalile not to make the code of regulations under 
 consideration law, but leave them subject to revision and change 
 by the President of the United States. 
 
175 
 
 A reason f-r this is. that it is .lifficiilt ..r inipossil)!^ to make 
 res?ulations perfect and such as will properly meet all the exi- 
 gencies of the military service arising under the vicissitudes 
 affec-ting it ; therefore there should he authority in the President 
 to make changes that experience and circumstances seem to 
 
 demand. 
 
 The old edition of Army Regulations, of 18(>;5, is exhausted, 
 many officers being without a copy, and in consequence of many 
 changes therein having been made by acts of Congress, and 
 orders, the Army is much in need of a new code at this tune. 
 
 The Articles of War should be made law ; they are the statutes 
 for the Army, to protect the constitutional rights of officers and 
 enlisted men, and others connected therewith, to insure justice, 
 punish offenses, govern the disbursement of public moneys, pro- 
 vide for the administration of the military branch of the public 
 service, and promote its efficiency, etc. 
 
 I think thev need revision and changing in some respects. 
 
 A penal code of punishment, graduated to the character and 
 magnitude of offenses, should be established for the guide of 
 courts-martial, the better to insure even justice. 
 
 This report has been delayed somewhat from unavoidable 
 
 causes. 
 
 I am General, very respectfully, your obedient servant, 
 
 N. H. Davis, 
 TnsjK'ctor General, U. S. A. 
 The Hon. Chairman of the Mii.itary Committee, 
 
 House of Representatives, Washington, D. C. 
 
 Gen. John Coburn, 
 
 Chairman of Militarn Coiiindttee, 
 
 House of Representatives. 
 
 Sir: In compliance with your request, I have the honor to 
 submit in writing, my views of the new Army Regulations, and 
 the emendations that, in my judgment, should be made before 
 their final adoption by Congress, "as the rules for the govern- 
 ment of the Armv." 
 
 The old Rules and Articles of War adopted by act of Congress 
 approved April 10, 1^^0(5, borrowed mainly from England's mili- 
 tary act, have been very greatly improved and simplified by 
 
17 Cj 
 
 elimination of parts inapplicable to our military system, and so 
 otherwise changed as to constitute a very' complete code for the 
 administration of justice and enforcement of discipline in the 
 Army. 
 
 As a whole system of regulations intended to carry into prac- 
 tical effect the laws of Congress, they are a very great improve- 
 ment on any previous compilation ; and it is with hesitation I 
 have suggested the few changes herein inclosed. My object has 
 been to so change a few of the primary regulations that have 
 controlling authorization over all others, as to avoid conflict of 
 military authority and fix more definitely the purview of the 
 officers of the General Commanding the Army and the Secretary 
 of War; the General being in my view strictly military and 
 executive, and the Secretary civil and administrative. 
 
 When the boundaries of these two officers are authoritatively 
 established, and the political patronage of the great contract and 
 supplying departments is severed from the military, fixing the 
 command, government, and discipline of every military arm in 
 the General, the vicious influences that go to weaken discipline 
 and the effectiveness of arms will, in my judgment, be forever 
 avoided. 
 
 I am, very respectfully, your obedient servant, 
 
 B. S. Roberts, 
 Brevet Brigadier General U. S. A. (retired). 
 
 NEW ARMY REGULATIONS. 
 
 First. As to the recommendation in the letter of the Secretary 
 of War transmitting to Congress the new regulations for the 
 Army, with revised and corrected Articles of War, that if these 
 regulations are formally approved by Congress, ' ' they be made 
 subject to such alterations as the President may from time to 
 time adopt," I will say that if Congress gives such discretionary 
 power to the President, it will confer on him and his legal rep- 
 resentive, the Secretary of War, authority over the Army the 
 Congress can not under the Constitution delegate. 
 
 The Constitution (section 8, Article I), -n seventeen para- 
 graphs, fixes certain sovereign legislative powers in Congress 
 that are not transferable to the Executive or any Department of 
 
177 
 
 the Government. And the thirteenth paragraph is in these 
 words- "The Congress shall have power to make rules for the 
 government and regulation <^f the land and naval forces " 
 
 The powers in this section of the Constitution take the char- 
 acterization of sovereignty, are forbidden to the States in section 
 10 and are exclusively and unalterably fixed in Congress. Con- 
 o-ress can, therefore, with the same propriety authorize the 
 President or his military representative, the Secretary of War, 
 "from time to time to declare war or to coin money, as "to 
 alter, from time to time, the regulations made by Congress for 
 the government of the Army. " 
 
 Second. Strike out on page 3, paragraph relating to the engi- 
 neers the word "civil." and substitute for it the word "mixed; 
 because bv law of Congress officers of the Army can not discharge 
 civil offices without vacating their military commissions, and, 
 besides, mixed better characterizes the work assigned to an 
 officer of the Army than the word civil. 
 
 Third Strike out the words " regular constitutional m first 
 line of Article II defining the office of Secretary of War, and 
 substitute for them the word ' ' lawful. •' The office of Secretary 
 of War is not an office created by the Constitution, but by a law 
 of Congress, approved August 7, 1789. He cannot therefore be 
 said to be "the regular constitutional organ of the President 
 but he is the lawful organ. For the same reason strike out the 
 words "and constitutional " in the fourth line. 
 
 Fourth It is clear to my mind that Article III requires emeii- 
 dation and a more definite declaration of the scope of the mili- 
 tarv function of the Commander in Chief of the Army. 
 
 The Constitution, that makes the President the Commander m 
 Chief of the Army and Navy, never contemplated giving to him 
 the personal administration or personal supervision of the Army 
 whether in the field in time of war, or in its garrisons m time ot 
 peace His office under our form of government is mainly civil 
 and by far transcends in its magnitude the military administra- 
 tion of the Army under the laws of Congress. It was clearly 
 the intention of the framers of the Constitution t.i vest m Con- 
 gress the control of the Army. And this intention is unequivo- 
 cally declared in the thirteentli paragraph of section 8 of the 
 Constitution, in the words "the Congress shall have power to 
 
 13190 Vi 
 
178 
 
 make rules for the government and regulation of the land and 
 naval forces." 
 
 Add to this his constitutional obligation imposed by section 3, 
 Article II, ' ' he shall take care that the laws be faithfully exe- 
 cuted," and the logical legal deduction is plain, that his powers 
 as Commander in Chief of the Army and Navy of the United 
 States, as conferred in section 2, Article II, Constitution, are 
 subordinate to Congress, and limited at its discretion. 
 
 The framers of the Constitution intended a befitting title in 
 bestowing on the President of the United States the office of 
 Commander in Chief of the land and naval forces, and nothing 
 more. If they had intended to confer on him any supreme com- 
 mand to be exercised as a constitutional right, they would not 
 have reserved to Congress the power to govern the Army, and 
 require him ' ' to see that the laws of Congress were faithfully 
 executed." 
 
 If, in fact, the Constitution had conferred on the President the 
 command of the Army and Navy, and added to his other execu- 
 tive functions of patronage, appointment, and the exchequer of 
 the Government, the prerogative of the sword, his powers woiild 
 have been more dangerous to liberty than any ever before exer- 
 cised by any monarch since regal Rome was disintegrated by 
 the military dominion of its Caesars. 
 
 But such was not the polity or intention of the framers of the 
 Constitution, and no such powers have been conferred on the 
 President, by implication or otherwise; but, on the contrary, all 
 such authority is positively interdicted to him by section 14, 
 Article I, Constitution, and vested in Congress. 
 
 What the General's powers are, should therefore, in my judg 
 ment, be more clearly enumerated in this article. As it now 
 reads, paragraph 1, standing alone, would fix properly the mili- 
 tary status of the General in Chief of the Army. But, by the 
 qualifications in paragraphs 2, 3, and 4, that will permit the 
 Secretary of War at any time, as the representative of the Presi- 
 dent, to interfere with the military orders of the General in 
 Chief, only requiring orders of the Secretary of War, through 
 the General as a military channel, to be published that may 
 "otherwise direct," all the military operations of the Army may 
 be obstructed, and every order the General may issue to-day can 
 be canceled to-morrow by the paramount order of the Secretary 
 of War. 
 
179 
 
 In military Iuavs, regulations, and orders, there slioiild be 
 neither vagueness, ambiguity, or possible misinterpretation, so 
 that conflict of authority or antagonism in command can be 
 made reasonably possil )le. Every commander's status should be 
 clearly defined, in order that harmony in the execution of mili- 
 tary administration shall be unalterably fixed. In this way 
 alone can the efficiency of armies be established, and uniform 
 discipline and justice enforced. 
 
 I would therefore suggest that paragraphs 2, U. and 4. in Article 
 III be stricken out and the following substituted: '-In all mat- 
 ters relating to the fiscal administration of the Army, the Secre- 
 tary of War has supreme control, and he alone is responsible for 
 the' faithful and prompt settlement of all disbursing ofdcers' 
 accounts, and the economical application of the public moneys 
 appropriated for the Army. So far as payments and disburse- 
 ments are made at military posts to troops, or on account of 
 military supplies, or for military movements, it is made the 
 duty of the General commanding to see that they are made m 
 conformity with the regulations and orders of the Secretary of 
 
 War." 
 
 The oface of the Secretary of War has gro\\ni into great pro- 
 portions of power through enormous patronage by the contract 
 system for vast supplies of war; and if to this power is super- 
 added militarv dictation, it would, in the hands of an unfaithful, 
 unscrupulous^ or ambitious Secretary, become one of danger to 
 liberty, and its doors would be thr(5%\ni ajar to fraud and cor- 
 ruption, with military force to give it impunity and freedom 
 
 from search. 
 
 The office of the senior General of the Army, by its very nature 
 and life-tenure, is more identified with the paramount interests 
 of the Army than any other, and very greatly transcends in its 
 military reach into the discipline and effectiveness of the per- 
 sonnel of the rank and file, than that of the Secretary of War. 
 Besides, it is unassociated mth political and partisan interests, 
 with patronage and its mischievous influences, than that of the 
 Secretary of War; the latter being an office changing at brief 
 periods, 'and never identified exclusively with purely military 
 matters and their progression and improvements in the art and 
 science of war. The General is an educated soldier, has exclu- 
 sively the interests of his profession at heart, knows more inti- 
 
180 
 
 mately the personnel of the Army than the Secretary of War 
 possibly can, and his pride and ambition arfe to elevate arms, and 
 give to his Army its maximum of efficiency and discipline. 
 
 Political and personal favoritism are the banes of armies, and, 
 if exercised in any considerable degree, are more destructive of 
 military merit, esjyrit of profession, than all other disturbing ele- 
 ments in military administration. They are much more likely 
 to find their vs^ay into service through a Secretary of War than 
 through an old Army General, whose office is not transient, or 
 in any way influenced by the inducements of popular applause or 
 political favor. 
 
 Fifth. In fourth line, paragraph 2, Article IV, strike out the 
 words ' ' Secretary of War " and substitute the word ' ' President. " 
 If this paragraph stands uncorrected it would confer military 
 function on the Secretary of War in person. He is a civil offi- 
 cer, and can not, without the direction of the President, and as 
 his aid, give any military orders. This part, as it now stands, 
 submits grave military subjects to the "discretion of the Secre- 
 tary of War," regardless of the President. 
 
 Sixth. Insert in Article I an additional paragraph, in these 
 words : ' ' Wherever in these regulations the words ' Secretary of 
 War ' are used, they will be construed as meaning the repre- 
 sentative minister of the President in his executive office as 
 Commander in Chief of the Army." This will give authoriza- 
 tion to all of his orders as emanating directly from the President 
 as the military head of the land forces. 
 
 Seventh. In paragraph 4, Article IX, strike out the words "the 
 engineers" at the end of the third line, and in paragraph 5 strike 
 out the words "whether superior or," in fourth line. Engineers 
 should not command troops where there is a regimental com- 
 missioned officer, nor should a superior officer salute his junior 
 officer because he is an adjutant. Besides, if the engineer offi- 
 cer can assume command by virtue of paragraph 4, then para- 
 graph 10, same article, is stultified and inoperative. 
 
 Eighth. In paragraph (5, Article XIV, strike out the words 
 "Secretary of War," in fourth line, and substitute for them 
 "General of the Army." And also strike out the words "War 
 Department" in paragraph 15, fourth line, and substitute for 
 them "General of the Army." In Article XV strike out the 
 words "War Department " from paragraph 1, second line, and 
 
181 
 
 sxabstitnte "General of the Army.' and strike ont 'Secretary of 
 War" from fifth line of paragraph :5 and substitute •■General ot 
 
 *^ Nhith ^On page 33, article headed 'Grooming," strike out all 
 of first paragraph and substitute the following: "Every coni^ 
 missioned officer of a troop of cavalry or mounted battery ot 
 artillery, not sick or prevented by other duty, will attend morn 
 ing and evening stable-call, and personally superintend the thor- 
 ough grooming, the feeding and watering of the hors^es. When 
 thegmomingis finished the horses should be formed mhne by 
 the noncommissioned officers in charge of squads, mth the men 
 at position 'Stand to horse ;' when the officers, accompanied by 
 the blacksmith, shall inspect each horse and require regrooming 
 if it has not been thoroughly done, and bring to the notice of the 
 blacksmith horses that have cast their shoes or require reshoe- 
 iiio- Thev should also at this inspection see that every soldier is 
 present ^^•ith his horse, unless detained by sickniess or on other 
 indispensable dutv he can not leave. " As a rule, every soldier of 
 a troop of cavalrv or mounted battery of artillery, not on guard 
 or in hospital, should be required to attend stable-call and groom, 
 water, and feed his o^^^l horse. AfPection and confidence between 
 soldier and horse would in this manner be cultivated, so that the 
 saving "the horse knoweth his rider" might be realized. Tlie 
 old cavalry rule, "horse and rider should never be separated, is 
 the onlv safe law for making good cavalry. 
 
 Tenth First paragraph of Article XXXIII makes "command- 
 ers of regiments responsible for the instruction and discipline ot 
 their regiments." Paragraph 8. however, completely stultifies 
 para-i-aph 1, or at least makes it inoperative by its restrictions 
 on their rights to inspect companies serving with other com- 
 manders They can not inspect companies of their regiments 
 serving at other posts oftener than once a year, and then only by 
 ^drtue of orders from the General of the Army. This is all well 
 enough as applied to artillery and infantry regimental command- 
 ers in whose regiments the details of duties and administra- 
 tion of different posts shbuld be under regulations identically the 
 same But when cavalry companies are serving at infantry or 
 artillery posts, as the regimental duties of cavalry differ mate- 
 riallv from the regimental duties of artillery and infantry, the 
 regimental regulations and orders of cavalry commanders should 
 be^enforced. whoever may be in command of the post. 
 
189 
 
 I would, therefore, suggest to except out of the operation of 
 this paragraph 8 all cavalry troops and commands, and make a 
 proviso, that whenever cavalry companies are ser\nng at posts 
 commanded by infantry or artillery officers, that so far as the 
 cavalry regulations for interior cavalry administration and duties 
 are concerned, that the regimental commanders of cavalry be 
 fully authorized to enforce regimental orders and discipline. 
 
 Eleventh. It is certain that regimental commanders of cavalry 
 should not be held responsible for the discipline or efficiency of 
 their regiments, if their companies, serving at posts commanded 
 by artillery or infantry officers, are placed beyond the enforce- 
 ment of cavalry rules for such discipline and efficiency. The 
 nature, organization, and distinctive characterization of these 
 different arms of service are broad in differences, and the rules 
 of a post for the enforcement of discipline and effectiveness in 
 infantry and artillery would be wholly inadequate as applied to 
 cavalry. 
 
 Twelfth. There is no reason for the discrimination between 
 cavalry and mounted artillery, as made in mixed commands on 
 page 1V2. paragraphs G. 7. and 10, and to coiTect it. strike out 
 paragraph 6, and in paragraph 7, after the words '"mounted 
 artillery." in first line, add, 'and cavalry,"' and after the words 
 "soldiers of mounted batteries," in first line of paragraph 10. 
 add, "and cavalry." The service of a cavalry soldier, including 
 the care of his additional equipments, arms, and hard scouting 
 and escort duty, exceeds in its labor and fatigue that of a soldier 
 of mounted artillery, in the care of horses and battery. 
 
 ARIICLES OF WAR. 
 
 Thirteenth. Article YI of the Rules and Ai-ticles of War. in 
 its connection ^^^th Article XII. requires an additional paragraph 
 in Article LXIV, which should read: "Whenever a general 
 court-martial assembles, and before the prisoner is called upon 
 by the judge-advocate to plead as to his guilt or innocence of the 
 charges, if the judge-advocate finds in the array of the members 
 a sufficient number of officers senior in rank to the prisoner to 
 constitute a lawful court of five or more members, it shall be his 
 duty to excuse the other members of the array from sitting, and 
 thus avoid the influence of jiTuiors, in trials where no other 
 motive than to do justice should bear in forming the judgment 
 of the court." 
 
183 
 
 Article YI makes any uniuber of officers from five to thirteen a 
 iw uTcomt lor the trial of a commissioned officer, only reqmr^ 
 ii; the .^ximum number thirteen, when that munher can be 
 convened without manifest injtiry to the service. 
 'TtMe XII says ''no officer shall be tried ^^;t by a geiiera 
 court-martial, nor by officers of an interior rank, ^^^^^^ ^^ 
 avoided without detriment to the pubhc service. The policy 
 Tt ?iIwof courts is to move out of the juror's mmd every 
 n ot ve tlmt could operate to the prejudice of the prisoner to be 
 ^M^ promotion of a junior ^o^ows by dismission^^^^ 
 senior officer, and the benefit of such promotion coujd poss b y 
 xchTate^ie vote of a junior, the law in positive terms forbids 
 ;;e Mai of I senior b^ a junior, -if it can be avoided without 
 
 manifest injury to the service. ^ ^ , 
 
 When five or more seniors constitute in part the panel .:^ a 
 com-Miartial, it is clear that a trial can be had by semors, and 
 1 tie XII applving in that case, the duty of the judge-advocate 
 ^ to excuse tlLV-ors, as otherwise the trial wo^^^^^^^ 
 
 The object of Article XII is to secure purity m the admmistia 
 tion of mm a.y justice in the Army, and that object would be 
 ac° ompl hed wi h a gi-eater degree of certainty by the additional 
 n^a "ilh I propose to add in defining the duties of the judge- 
 arocate He is the law officer of the Government m its mili- 
 ^:^inistration of justice, and all ^^^^^^J^ 
 ers a-ree that it is his duty, before proceeding t(. the tiial oi aii> 
 offi el to see that the court is legally constituted. As a riU 
 however, the judge-advocates of military courts are officii s 
 'Xut erudition in law, or any great experience even m the 
 admh tration of military justice. It is therefore of primary 
 tPLe to fix the legal constitution of the conr^-J- P^^^ • 
 that the most inexperienced judge-advocates can not mistake the 
 carM prm its lawful organization, before puttnig 
 
 mmtary reputation or military officers "in jeopardy of life or 
 
 ^"nilitarv honor is of peculiar characterization, and if oncedanv 
 ag^ tilther by mistake or otherwise, it is seldom so retrieved 
 as to x^store to full usefulness the officer on whose character a 
 
 "^?t^nd::::;r::^ military courts should, therefore, be fre^ 
 trL ail suspicion of inducement or motive to prevent v^. 
 to disguise wrong, to impute innoc-ence, or to convict ot dime. 
 
184 
 
 Fourteentli. In Article XVI, I would suggest substituting the 
 word "shall" for "may," in line 6, that reads "and a court of 
 inquiry may be ordered by any general, " etc. , so that it will 
 read "shall be ordered," etc., because in my judgment it is the 
 absolute right of an officer, when he thinks an imputation rests 
 upon him, to accpiit himself of it by such a court. When an 
 officer's reputation is at all in question, his usefulness is at an 
 end unless he can show that the imputation is gi'oundless, and 
 place himself above suspicion. It may often happen that the 
 imputation comes directly or indirectly from the general or com- 
 manding pfficer on whom the demand is made for the court of 
 inquiry by the injured officer. It should not therefore be left at 
 the discretion of such general or commanding officer to refuse 
 the application of the officers they may have wronged, as it 
 would now seem to be by using the language ' ' may be ordered, " 
 etc., as such language may be construed to leave the ordering 
 of the court discretionary in their judgment. Military reputa- 
 tion can not rest under equivocation or in doubt ; it must be 
 unclouded, and courts of inquiry should never be refused, when 
 demanded by any officer whose military character is under asper- 
 sion going to the integrity of his personal or official manhood. 
 
APPENDIX H. 
 
 LETTER OF LIEUTENANT GENERAL SCHOFIELD IN 
 REGARD TO PROPOSED REGULATIONS OF 1870. 
 
 St. Augustine, Fla., January lu, 1897. 
 
 * * * In reply to your inquiry of January 8tli, my recollec- 
 tion is that Col. Robt. Scott and Colonel Tourtellotte went on and 
 completed tlie revision of regulations as I had mapped them out 
 in the ' ' first articles. " I know that great progress had been 
 made in that work when I ceased to supervise it, or give any fur- 
 ther directions. In fact, the work after that was little more than 
 clerical, the theory of it being that the drafts of staff regulations 
 and the old general regulations should not be altered except so 
 far as necessary to make them conform to the principles laid 
 down in the first articles. I recollect that General Sherman 
 wanted me to go on and complete the staff regiilations without 
 consulting the chiefs of staff departments, but I was not \villing 
 to do that, and all th^ chiefs, as I recollect, sent me their projects 
 in detail. Of course these required much attention, and Colonel 
 Scott was engaged in that work when my direction of it ceased. 
 To this there was one, and as I recollect only one, exception. 
 General Meig-s, Quartermaster General, cordially adopted the 
 theory laid down in one of the first articles attempting to define 
 the relations between the Secretary of War, the General of the 
 Ai'my, and the chiefs of staff, which, he said, in substance, was 
 the best definition he had ever seen of that relation. 
 
 It may be of interest in your history to note that the relation 
 there attempted to be defined was not any invention of mine, but 
 was what I understood to have been General Grant's idea when 
 he was in command of the Army, and that of General Sherman 
 when he ordered me to revise the regulations. I was simply 
 called upon to act as a sort of expert, to put in form those views 
 of my superiors. I was not at liberty to embody in that revision 
 any independent views of my own, even if I had any at that 
 
 (185) 
 
186 
 
 time. But my recollection is that I did not have at that time, 
 any thought on the subject but to carry out as well I could the 
 wiil of my superiors, the General in Chief and the President, 
 who I presumed were in perfect accord, their previous differences 
 having then resulted in the resignation of Secretary Belknap, 
 and the restoration of General Sherman to aetnal command. 
 
 My own independent and matured views are to be found in 
 connnunications addressed to the President when I was in com- 
 mand of the Army, now, doubtless, on the files of the War 
 Department, either public or confidential. 
 
 I presume all the work done by Colonel Scott and Colonel 
 Tourtellotte on that revision is somewhere in the War Depart- 
 ment or Army Headquarters. 
 
 Yours, verv truly, 
 
 J. M. SCHOFIELD. 
 
APPENDIX I. 
 
 REMARKS OF SECRETARY OF WAR McCRARY, IN HIS 
 ANNUAL REPORT FOR 1S77. 
 
 ARMY REGULATIONS. 
 
 The latest revision of the regulations for the government of 
 the Army was made in 1861, to which some additions were made 
 in 1868. The regulations then adopted were i>ublished in 1863, 
 bnt are now out of print, and besides have been supplemented 
 by numerous general and special orders and modified by various 
 legislative acts, so that it may be said that there is great need of 
 a careful revision of the whole subject. The attempts heretofore 
 made to supply the need which is generally felt in the Army of 
 a new and complete code of regulations have not resulted in 
 siiccess, although much work has been done which may l)e 
 utilized hereafter. 
 
 By an act approved July 28, 1866, the Secretary of War was 
 directed to have prepared and to report to Congress at the next 
 session "a code of regulations for the government of the Army 
 and of the militia in actual service, which shall embrace all 
 necessary orders and forms of a general character for the per- 
 formance of all duties incumbent on officers and men in the 
 military service, including rules for the government of courts- 
 martial ; the existing regulations to remain in force until Con- 
 gress shall have acted on said report. " In compliance with the 
 terms of this act, a revision of the Rules and Articles of War 
 was made and submitted to Congress, but no action was taken 
 thereon. 
 
 By an act approved July 15, 1870, it was again provided that 
 a system of general regulati(ms for the Army therein authorized 
 should be reported to Congress at the next session and approved 
 by that body. 
 
 (187) 
 
188 
 
 The act of March 1, 1875, vol. IS, Statutes at Large, page 337, 
 repealed so much of said act of July 15, 1870, as required regu- 
 lations to be submitted to Congress, and authorized the Presi- 
 dent "to make and piiblish regulations for the government of 
 the Army in accordance with existing laws." 
 
 By an act approved July 24, 1876 (19 Stat., p. 101), the whole 
 subject-matter of reform and reorganization of the Army of the 
 United States was referred to a commission, to be composed of 
 two members of the Senate, two members of the House of Rep- 
 resentatives, two oflacers of the Army from the line, one officer 
 of the Army from the staff, and the Secretary of War. This 
 commission was to report to Congress at its next session. By a 
 joint resolution approved August 15, 1876 (19 Stat., p. 216), the 
 President was requested to postpone all action in connection 
 with the publication of regulations until after the report of the 
 commission above mentioned should be received and acted on by 
 Congress at its next session. The commission, however, ad- 
 journed, after collecting a great mass of material, without 
 accomplishing its object, not being able to complete its work 
 before the Congress to which it was required to report had ex- 
 pired. 
 
 Thus it will be seen that the powers of the commission have 
 been exhausted, while at the same time the law is left in such 
 a state as to render it extremely doubtful as to the power of the 
 Executive to issue and publish regulations. It will be for Con- 
 gress to determine whether it is w^se to require that a code of 
 general regulations shall be subjected to the formal action of 
 Congress, thus giving them a fixed character, unalterable except 
 by the same formal action. In my judgment, this would not be 
 wise. All matter in the regulations which should properly be 
 bound by force of law is actually made in exact conformity with 
 military acts of Congress, and is always in the precise language 
 of the statutes ; but there are very many matters of detail which 
 depend upon the daily changing necessities of the service, and 
 are regulated by the exiierience and intelligence of practical men 
 in the Army, which should be left for modification, as often as 
 circumstances demand, to the discretion of the Executive. It is 
 a principle, well understood and invariably acted upon, that 
 whenever a regulation comes in conflict with a law of Congress, 
 it is null and void. The law is thus, as it were, a constitution, 
 and regulations are simply the by-laws based thereon. 
 
IS'.) 
 
 The authority to make alterations in the regulations was 
 vested by act of April 24, 1816, in the Secretary of War, with 
 the approval of the President, and has been ever since so exer- 
 c-ised, with this exception, that by an act of March 2, 1821, a 
 system prepared by General Scott, under an act of March 3, 1813, 
 was "approved and adopted." But this act of March 2, 1821, 
 was repealed, in terms, by an act of May 7, 1822, leaving the act 
 of April 24, 1816, still in operation. The Army regulations are 
 always public and easy of reference, and Congress can readily, at 
 any time, correct by legislation any objectionable feature which 
 may appear in them. 
 
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