LIBRARY OF THE University of California. GIFT OF Gen. Chas. r. Gr£ehleaf_v Class i^tu "tlijL ^\i^/aLdt<^ ^- Y Digitized by the Internet Archive in 2008 with funding from IVIicrosoft Corporation http://www.archive.org/details/digestofopinionsOOunitrich A DIGEST OP OPINIONS JDDGE ADVOCATE GENERAL OF THE ARMY, WITH NOTES, BY BYT. COLONEL W. WINTHEOP, Judge Advocate, TJ. S. Army, Assistant to the Judge Advocate General. OF £lUfORNJ [PUBLISHED BY THE ATJTIIOEITT OF THE SECKETAET OF WAK.] WASHINGTON: government printing office. September 1, ISSO. SECOND THOUSAND. Entered, according to Act of Congress, in the year 1880, by WILLIAM WINTHROP, In tlie office of the Librarian of Congress, at "Washington, PEEFACE. The opinions, of which abstracts are presented in this work, consist of a selection from a mass of opinions recorded in the forty four volumes of the Eeports of the Bureau of Military Justice, and furnished — mainly to the Secretary of War — by BvT. Maj. Gen. Joseph Holt, Judge Advocate General, from September, 1862, to December, 1875, and b^^ BriGt. Gen. Wm. McKee Dunn, Judge Advocate General, from the lat- ter date to the present time. These opinions embrace those given by the Judge Advocate General in the course of his official reviews of the proceedings of military courts, or other- wise in connection with the subject of the administration of justice in the Army ; as also those rendered by him in his ex officio capacity of general legal adviser to the Secretary of War or law officer of the War Department, upon questions of law arising in the business of that Department, and referred to him for opinion by its Head. The present work is not properly a later edition of the Digest of which the last issue was published in 1868, but is intended quite to supersede that publication. All that was deemed of permanent value therein has indeed been retained, but much the greater portion of the present volume consists of matter entirely new, or in part new and newly i^resented. Where i)racticable, such an arrangement has been made of the extracts as to divest them in a degree of the effect of disjecta membra and give them connection and sequence. With the view of adding to the interest as well as value of the work, the text has been illustrated by notes; the au- thorities cited being taken from compilations commenced, for personal use, some fifteen years ago, and kept up with the new adjudications, orders, enactments, &c., as they appeared. The references — especially those made to cases in General Orders — might have been considerably extended, but it has been jireferred to select such as were especially lU 01 ^RR*^ IV PREFACE. pointed and pertinent. The citations niclude cases reported in 10 Otto, (100 U. S.,) the last volume of the Eeports of the Supreme Court, (published in August ;) as also cases in the 15th volume of the Eeports of the Court of Claims, yet to be published ; as well as opinions to be contained in the forth- coming volumes — XY and XVI — of the Oi^inions of the At- torneys General j * together with General Orders of the series of 1880, as thus far issued from the Headquarters of the Army and of the different military dei^artments. Except in two or three instances specially indicated, no opinion has been i)resented in this volume which is known or believed to have been disapproved by the Secretary of War. It is by his authority that the work has not only been printed a-t the public expense, but, in order that all proper persons desiring the same may be supplied with copies, has also been stereotyped. * I desire to express my acknowledgments to the Attorney General, Hon. Charles Devens, for his courtesy in permitting me to examine and make extracts from the original opinions as recorded in the Department of Justice. W. W. CONTENTS. A. Title. Page. Articles of War . , 1-100 Second Article , 1 Third Article 1 Fourth Article ^ 2 Eighth Article 3 Ninth Article 4 Thirteenth Article 5 Seventeenth Article 5 Nineteenth Article 7 Twentieth Article 8 Twenty-first Article 8 Twenty-second Article 11 Twenty-fourth Article 13 Twenty-fifth Article 13 Twenty-sixth Article 14 Thirtieth Article 15 Thirty-eighth Article 16 Thirty-ninth Article 18 Forty-second Article 19 Forty-fifth Article , 20 Forty-sixth Article 21 Forty-seventh Article 21 Forty-eighth Article 21 Fiftieth Article 23 Fifty-first Article 24 Fifty-fourth Article , 25 Fifty-fifth Article 26 Fifty-eighth Article 27 Fifty -ninth Article 28 Sixtieth Article 31 Sixty-first Article 37 Sixty-second Article 41 Sixty-third Article 48 V VI CONTENTS. Title. Pasje. A.RTICLES OF War— Continued. Sixty-fifth Article 50 Sixty-sixth Article 51 Seventieth Article 52 Seventy-first Article 52 Seventy-second Article 53 Seventy-third Article 58 Seventy-fourth Article 58 Seventy-fifth Article 5S . Seventy -seventh Article 60 Seventy-ninth Article - 60 Eightieth Article 61 Eighty-first Article 63 Eighty-second Article 64 Eighty-third Article 65 Eighty-fourth Article 67 Eighty-sixth Article 69 Eighty-eighth Article 70 Mnety-first Article 73 Ninety-second Article 75 Ninety-third Article 76 Mnety-fourth Article 77 Ninety-sixth Article 78 Ninety-seventh Article 80 Ninety-ninth Article . „ 82 One hundredth Article 82 One hundred and first Article 82 One hundred and second Article , 83 One hundred and third Article 85 One hundred and fourth Article 89 One hundred and sixth Article 91 One hundred and ninth Article . 92 One hundred and eleventh Article 92 One hundred and twelfth Article 92 One hundred and fourteenth Article 95 One hundred and fifteenth Article 96 One hundred and nineteenth Article - 98 One hundred and twenty-first Article 99 One hundred and twenty-seventh Article 100 Absence Without Leave . . . '. 101 Absent Member 101 CONTENTS. VII Title. Page. Accomplice 101 Accuser or prosecutor 102 ^'Acting Assistant" or "Contract" Surgeon.. 103 Ad JOURNIMENT 103 Advertisement 103 AlD-DE-CAMP 103 Alaska 104 Alien 105 Amendment of Charge 105 Appeal 105 Appointment 106 Approval or Disapproval of Proceedings, &c . Ill Arms— Furnishing of Ill Arms — Sale of Ill Army — Employment of for Civil Purposes 111 Army Eegulations 116 Arraignbient 118 Arrest, I — Military 119 Arrest, II — By the Civil Authorities 121 Artificial Limbs 122 Assignjment of Contract 122 Assistant Surgeon , 122 Attachment, (of Property) 123 Attachment, (of Witness) 123 Authentication 123 Bail 121 Ball and Chain 124 Board of Investigation 124 Board of Survey. . , , 125 Bond 126 Bounty 132 Breach of Arrest 133 Brevet Bank 134 Brigade ... 135 Burglary 135 C. Cadet 136 Cajmp Follower 138 Captured Property 139 VITI CONTENTS. Title. Page. CASHIERINa 141 Certificate of Merit 141 Cession of Jurisdiction 141 Challenge — to fight a Duel 144 Challenge — to Meiviber of Court ] 44 Chaplain 144 Charge , , 145 Chief Musician 156 Citizenship 156 Civilian— Amenability of to Military Juris- diction — . 156 Civil Employment of the Army . 156 Civil Office 157 Civil Process 160 Civil Eights 164 Claims 164 Clerk „ 171 Clothing Allowance 1 72 Clothing— Loss of 173 College or University 174 Colored Troops 175 Commissary Sergeant 176 Commission 176 Commutation 176 Company Commander .... 176 Company Fund . 177 Compensation — for Extra Services 178 Compensation — for Property Taken for Pub- lic USE 179 Conduct to the Prejudice of Good Order and Military Discipline 180 Conduct Unbecoming an Officer and a Gen- tleman 180 Confession , 180 Confinement 180 Contempt of Court 180 Continuance 180 Contract 180 Convening Officer 197 Convening Order 198 Copy of Proceedings 198 CONTENTS. IX Title. Pago. COBKECTION OF EECORD 198 Counsel, I — In Civil Proceedings 198 Counsel, II — To assist a Judge Advocate 198 Counsel, III — For the Accused 190 Court Martial, I— Authority and Function . . , 200 Court Martial, II— Jurisdiction 206 Court of Inquiry „ 217 Cowardice 217 Custom of the Service i . . 217 D. Death Sentence 218 Defects in Proceedings, Sentence, &c 218 Defence , 218 Department Commander 220 Deposition 220 Desertion 220 Devolution of Co^oiand 229 Disapproval of Proceedings, &c 229 Disbursing Officer 229 Discharge 231 Dismissal, I— By Sentence 236 Dismissal, II — By Order of the President 239 Dismissal, III — By Order : Trial in Case of 212 Disobedience of Orders . . 214 Disqualification 244 District of Columbia 246 Division 246 Drunkenness 246 Drunkenness on Duty. 247 E. Embezzlement 248 Eminent Domain 248 Enemy , 248 Engineer Corps 248 Enlistment 248 Escape 253 Evidence 253 Extradition 259 Extra Duty pay 200 Extra pay •. 261 X CONTENTS. F. Title. Page. Felony 262 Field Officer's Court , . . 262 Finding 262 Fine 267 Flao of Truce 269 Foreign Service 269 Forfeiture, I — By Operation of Law 270 Forfeiture, II — By Sentence 270 Fuel Allowance 275 Gambling » , 276 General Orders 276 General Staff 276 Good Conduct in Confinement 277 Governor of State 277 Guard Duty 277 Guerrilla , 277 Guilty— Plea of 277 H. Habeas Corpus 278 Head of Departi^ient 283 Homicide 283 Honorable Discharge 283 Hospital 283 Hours of Session of Court Martial 283 I. iMPRISONIklENT 284 Iiviprovement of Eivers and Harbors 290 Indian 291 Indian Agent 291 Indian Country 291 Indian War 293 Injunction > „ 294 Insanity 294 Interest 295 Interpreter 295 Inventor 295 J. Judge Advocate 296 Jurisdiction , 302 CONTENTS. XI 1.. Title. Page. Land 303 Larceny 303 Lawful Command or Order 303 Law of War 303 Lease 309 Leave of Absence 309 Lesser Included Offence 310 License 311 Limitation 311 Loss OF Files 311 Making good Time lost by Desertion 313 Manslaughter 313 Marriage 315 Martial Law 315 Medical Cadet 318 Medical Officer 318 Member of Court 319 Mileage 323 Military Academy 321 Military — Ai^ienability of to the Civil Juris- diction 321 Military Coi\i:missioNj I — Origin, Constitution, Procedure, &c 324 Military Commission, II — Jurisdiction . 327 Military Co^oiission, III — Sentence 333 Military Governiment 334 Military Offence 334 Military Prison 335 Military Eeservation , 336 Military Storekeeper 339 Misappropriation 340 Mitigation 340 Mounted Pay 340 Munitions of War 340 Murder 341 Musician 312 Muster-out 342 Muster Eoll , 342 Mutiny 342 XII CONTENTS. Title. Page. National Cemetery 343 New Member 344 New Trial . , 344 Nolle Prosequi 345 Non-commissioned Officer 346 Non-intercourse 346 Notice 346 O. Oath^ I— Authority to Administer 347 Oath, II — of Court, Witness, Eeporter, &c... 348 Oath, III— of Enlistment 348 Oath, IY — of Office 348 Office 349 Officer's Servant 349 Official Papers 349 Order, I — In General 350 Order, II — CoNVENiNa A Court Martial 353 Order, III— Of Promulgation , 354 Ordnance Department , 355 P. Pardon 356 Pay Account — 361 Pay and Allowances 362 Paymaster 372 Paymaster's Clerk 372 Payi^ient by Mail 372 Penitentiary 373 Pension 373 Peonage 374 Perjury 374 Plea 375 Plea in Abatement « 380 Posse Comitatus 380 Post Commander 381 Post Trader 382 Power of Attorney . . 388 President, I— Authority to convene General Courts Martial 388 CONTENTS. Xni Title. Page. President, II — Authority over the Proceed- ings AND Sentences of Courts Martial 389 President, III — Authority to Eestore to the Army 390 Presiding Officer of the Court 391 Prisoner of War 392 Proceedings at Law against Officer, &c — -. 395 Professor of the Military Academy 398 Promotion 398 Prosecutor 399 Protest 400 Publications by Officers 400 Public Property — Disposition of, &c 400 Punish:ment 408 Purchase 408 Quartermaster's Stores 409 Quarters 409 quitclalvi 409 Quorum 409 R. Eank , . . . 410 EEC03OIENDATI0N 411 Eecord 412 Eeduction IN Eank or Files » 422 Eeduction to the Eanks, I— Of Commissioned Officer 422 Eeduction to the Eanks, II — Of NoN-Co]sons- sioNED Officer 423 Eegimental and Garrison Courts 424 Eegular Army - 424 Eelief 424 Eemission 42G '' Eemoval of Disability" 426 Eeporter 427 Eeprimand 428 Eequisition 428 Eesidence 429 Eesignation ' 430 XIV CONTENTS. Title. Page. Eestoration of Dismissed Officer 431 Eetirement 431 EEViEwiNa Authority 434 Eevised Statutes 439 Eevision 440 Sale, &c., of Arms, &c., by Soldiers 443 Sale of Military Stores 443 Salyage 444 Secretary of War 445 Selection of Quarters 447 Sentence and Punishment—in general 447 Sentinel 453 Separate Brigade 454 Signal Corps 454 Solitary Confine:ment 454 Specification 455 Spy 455 Statement of Accused 457 Statutes— Construction of 458 Stealing ...» 464 Stenographer 464 Stoppage 465 Subsistence Stores 466 Superintendent of National Cemetery 467 Supernumerary List , 467 Surgeon 468 Suspension - 468 T. Tax 472 Trader 475 Transportation of Public Funds . . 475 Treaty 475 U. Unauthorized Publication 476 United States 476 Unliquidated Damages .... 476 Usage 476 CONTENTS. XV Title. Page. Variance 477 Violation of the Laws of War 477 Volunteers 478 Vote of the Court 479 W. War 480 War Power 480 Witness ^.. ,**. 481 ERRATA. Page 85. At end of § 1, for "authority.^" substitute — au- thority 5 the offence being then completed.' " 350. At beginning of note, after "See", insert — Daw- kins V. Ld. Rokeby, 8 Q. B. 255 ; At end of note add — But see dissenting opinion of Miller, J. " 372. In 6th line, for "pay" substitute — payment. " 447. In 4th line of § 1, after " and" insert — , (no sentence having been adopted by a majority of votes,). " 479. In ()th line, after "became" insert — , or remained, " 491. In 3d line of note, omit — "anomalous", NOTICE. The numerals at the end of the separate paragraphs, (or sentences,) of the text refer to the volume and page of the ofticial Records of the Bureau. A. ARTICLES OF WAR. [Contained in Sec. 1342, Revised Statutes.] SECOND ARTICLE. "These rules and articles shall be read to every enlisted man at the time of, or within six days after, his enlistment, and he shall thereupon take an oath or affirmation, in the following form : ' I, A. B., do solemnly swear (or affirm) that I will hear true faith and allegiance to the United States of America ; that I will serve them honestly and faithfully against all their enemies whomsoever ; and that I will obey the orders of the Pres- ident of the United States, and the orders of the officers appointed over me, according to the rules and articles of war.' This oath may be taken before any commissioned officer of the Army." 1. The taking of the oath prescribed by this Article is not an essential to the validity of an enlistment. XXX, 313. It is, however, an almost invariable part of a regular formal en- listment, and, in the absence of any provision in our law de- fining in what an enlistment shall consist, (see Enli{^T31ENT, § 1,) it is important that it should not be omitted, for the reason that the oath as taken and subscribed by the party constitutes the regular, and, in the great majority of cases, the only, legal wrritten evidence that the personal act of enlisting has been completed by him. XLII, 203. 2. The statement in the form of the oath contained in the " enlistment paper," now in use in the Army, to the effect that the party enlisting is of a certain age, and tliat he knows of no impediment to his serving honestly and faithfully under his contract, is no part of the oath prescribed by this xVrticle. and is thus in fact immaterial and surplusage. XLII, 203. THIRD ARTICLE. "' Every officer who knowingly enlists or musters into the military 'serv- ice any minor over the age of sixteen years without the written consent of his parents or guardians, or any minor under the age of sixteen years, or any insane or intoxicated persons, or any deserter from the military or Id 2 ARTICLES OF WAR. naval service of the United States, or any person who lias been convicted of any infamous criminal ofi'ense, shall, upon conviction, be dismissed from the service, or suffer such other punishment as court-martial may direct." 1. Neither this Article, nor the directory provision inj)an materia of Sees. 1117-1118, Eev. Sts., renders void enlistments of the classes of i^ersons whose enlistment or muster-in is made punishable and interdicted. Except of course in the case of an enlistment of a i^erson clearly non compos mentis^ and whose contract is a nullity in law independently of any statute, these enlistments are voidable only : the United States may hold the party to service, or may discharge him forthwith in the man- ner authorized by the Fourth Article. XXXVITI, 332; XXXIX, 183 ; XLII, 30. [See Enlistment, § 3.] 2. It is not essential to a conviction under this Article that the officer shall be shown to have had positive and absolute knowledge that the person enlisted by him belonged to one of the classes of persons whose enlistment is made an offence. If he had such knowledge or information as to place the ftict beyond a reasonable doubt, he may properly be deemed to have acted '' knowingly." XXXI, 342. 3. The enlistment of a party who was evidently so much under the influence of liquor as to make it doubtful whether he comprehended the legal effect of his acts, Jield an enlist- ment of an ''intoxicated person" and an offence under this Article. XXVIII, 30. EOUETH ARTICLE. ''No enlisted man, duly sworn, shall be discharged from the service without a discharge in writing, signed by a field-officer of the regiment to which ho belongs, or by the commanding officer, when no field-officer is present ; and no discharge shall be given to any enlisted man before his term of service has expired, except by order of the Presideut, the Secre- tary of War, the commanding officer of a dex3artment, or by sentence of a general court-martial." 1. While no soldier can assume to discharge himself from the military service, he is yet, at the exi)iration of his con- tract of enlistment, entitled in general to be at once formally discharged by the proper authority.^ In view, however, of the terms of the lirst clause of this Article, — held that a discharge ^See Justice Story's charge to the jury in United States v. Travers, 2 Wheeler Or. 0., 500 j also rrendergast, 12. I ARTICLES OF WAR. 3 of a soldier actually takes effect, like a deedj only upon tlie delivery of the written certificate of discharge. XXIX, 599. Thus, where a soldier's discharge was not received by him at his station— a hospital in the field — till at the end of three months after its date, held that it did not take effect till its receipt, and that tlie soldier was entitled to i)ay ui^ to that time. XXVIII, 561. 2. A formal discharge, given to a soldier in accordance with this Article, is legal evidence of the fact of discharge, as well as of the circumstances — when the same are stated — under which the soldier was separated from the service.^ ^ XV, 250. 3. This Article, in its second clause, specifies two kinds of discharge as authorized to be given to soldiers before their terms of enlistment have expired nud which are quite distinct in their nature. The one is given by executive order and the other by sentence ; the one is a rescindiiu) of the contract of the soldier, authorized to be resorted to whenever deemed desira- ble, at the discretion of the Secretary of War, &c., and is, in law, an honorahle discharge; the other is a punishment^ and therefore a dishonorable discharge. One of the officials named can, of his own authority, no more order a soldier to be, in terms, dishonorably discharged than can a court-martial adjudge a soldier to be honorably discharged.^ XIX, 321 j XXXIV, 358; XXXVI, 537; XXXVII, 230; XXXVIII, 312; XLII, 311. [See more fully under Discharge, I, § 1, 2.] A discharge cannot legally be given a soldier before the expira- tion of his term of service except as authorized in this Ar- ticle ; and no officer, other than the three designated, can ex- ercise the authority, expressly devolved upon them, of dis- charging by order.^ XIV, 5o. EIGHTH ARTICLE. "Every ofiQcer ^vllo knowingly makes a false retnrn to the Department of War, or to any of his superior officers, authorized to call for such returns, of the state of the regiment, troop or company, or garrison under ^See Board of Comrs. 'y. Mertz, 27 Ind., 103; Hanson v. S. Scituate, 115 Mass., 336 ; United States r. Wright, 5 Philad., 296. 2 A discharge, however, of the former class, though it can not operate in law as a dishonorable discharge, may set forth on its face the reason why it was given and thus exhibit the history of the action taken. [See Discharge, I, § 2.] m bpius. of Attys. Gen., 353. 4 ARTICLES OF WAR. Jbis comiuaud ; or of tlie arms, ammunition, clothing, or other stores thereunto belonging, shall, on conviction thereof before a court-martial, be cashiered." 1. This Article refers only to returns made by certain com- manders as such. It is only as commander of a regiment, company, or garrison that an officer can be made amenable to a charge under the Article : an of&cer not exercising one of these commands is not within its terms.^ XXX, 5985 XXXII, 575; XXXIII, 188. 2. An officer ^' knowingly makes a false return" under this Article, who makes a return which he knows to be untrue in any material particular. XY, 558. 3. The ''returns" indicated in the Article can scarcely be said to include returns of funds ; what is contemplated being mainly returns of the ])ersonnel or malerlel of the command. A false return of a company fund would more properlj^ be charged under another Article, as the Gist or 62d. XXXYIII, 526. XINTH ARTICLE. "All public stores taken from the enemy shall be secured for the service of the United States ; and for neglect thereof the commanding officer shall be- answerable." This provision is in accordance with the principle of the law of nations and of war, that enemy's property captured in war becomes the property of the government or i:>ower by whose forces it is taken, and not that of the individuals who take it.^ "Private persons cannot capture for their own ben- efit."^ Military stores taken from the enemy, becoming upon capture the i^roperty of the United States, Congress, which, by the Constitution,* is exclusively vested with the x>ower to dispose of the public property, as well as to make rules con- cerning captures on land and water, can alone authorize the ^See G. C. M. O. 12, 10, War Dept., 1872. 2 United States v. Klein, 13 Wallace, 136; Decatur v. United States, Devereux, 110 ; White v. Red Chief, 1 Woods, 40 ; Branner v. Felkner, 1 Heisk., 232 ; Worthy v. Kinamon, 44 Ga., 299; Huff v. Odom, 49 Id., 395; XIII Opins. of Attys. Gen., 105; Hough, (Practice,) 329, 330; G. O. 54, Hdqrs. of Army, Mexico, 1848 ; G. O. 21, AVar Dept., 1848 ; do. 64, 107, Id., 1862. And see also Lamar v. Browne, 2 Otto, 195, in regard to the same principle as illustrated by the Captured and Abandoned Property Act of March 12, 1863. ^ Worthv V. Kinamon, supra. *Art. 1,'^Sec. 8, § 11 ; Art. IV, Sec. 3, § 2. ARTICLES OF WAR. 5 sale or transfer of the same. ^ An officer or soldier of the Army who assumes of his own authority to appropriate such articles renders himself chargeable with a military offence.^ 11, 41. THIRTEENTH AETIOLE. " Every officer who signs a false certificate, relatng to the absence or pay of an officer or soldier, shall be dismissed from the service." It will not be a sufficient defence to a charge under this Article, that the accused believed the certificate signed by him to be true, if it was false in fact.^ But Jield that the mere signing, by an officer, of a voucher for his pay, before the last day of the month for which it was due, did not constitute an offence of the class intended to be made punishable by this Article.^ XXXIII, 333. SEVEXTEEXTH AETIGLE : ''Any soldier who sells or, through neglect, loses or spoils his horse, arms, clothing, or accoiiterments, shall suffer such stoppages, not exceed- ing one-half of his current pay, as a court-martial may deem sufficient for repairing the loss or damage, and shall be punished by confinement or such other corporal punishment as the court may direct." 1. This Article contains two distinct provisions — 1st, that the offender shall be subjected to a certain stoppage^ proper and sufficient to reimburse the United States for the loss or damage caused by him, the amount of which shall be ascer- tained and fixed by the court : 2d, that he shall be punished ^ The authority has been most rarely exercised by Congress of granting property captured from the enemy, or its value, to the military. An early instance, however, is found in the resolve of Congress of July, 1779: — '"That the value of the military stores taken," upon the capture of Stony Point, "be ascertained and divided among the gallant troops by whom it was reduced, in such manner and i:)roportion as the commander- in-chief shall prescribe." Ill Journals of Congress, 329. In an exceptional General Order of the Dept. of the Missouri, (Xo. 21G of 18G4,) certain property taken from the enemj" is directed to be distributed among the militia making the capture, as follows : — " The horse ridden by Bill Anderson, and the watches and arms taken, will be given to the several officers of the command, to be retained as honorable trophies. The money cai)tured will be given, in just proportions, to the wounded of the command and to the families of such as were killed in the affair." - See, in this connection. Sec. 5313 Eev. Sts. ^^ Samuel, 298. And see O'Brien, 302. *See G. C. M. O. 28, War Dept., 1872. 6 ARTICLES OF WAR. as the court may direct. The stoppage is wholly distinct from and indei^endent of the punishment^ and should form no part whatever of the sentence. The stoppage is the enforce- ment of a civil liability to the United States, assessed by the court rather in the cai)acity of a board : the i)unishment is the criminal judgment for the offence. These two func- tions of the court, (both of which are made imijerative upon it by the Article,) being thus distinct, it follows that a regi- mental or garrison court-martial has, equally v/ith a general court, cognizance of an offence under this Article, however great the amount of the stoppage proper to be assessed for the loss or damage, for it is only in imposing the punishment for the offense that the inferior court is restricted by the limita- tions of Article 83. Naturally, however, where the amount of damage is very considerable, a general court will be re- sorted to. Where a court, general or inferior, imposes the stoi)page as i)art of the punishment, or confounds punish- ment and stoppage together, the procedings will properly be returned to it for revision. XXXI, 27 5 XXXY, 457 5 XXXVIII, 474, 549. 2. This article does not do away with the provision of the first sentence of Par. 1027 of the Army Eegulations ; that pro- vision being applicable to cases where it is not desired or re- quired to convene a court- niartial. In such cases a board of survey is ordered for the purpose of assessing the damage : w^here a trial is resorted to, the court, incidentally, acts in a capacity similar to that of a board of survey for the same purpose.^' XXXVII, 352. 3. The description, '' his horse, arms, clothing," &c., refers to articles which are regularly issued to the soldier for his use in the service and with the safe-keeping of which he is charged. It does not contemplate things which are his abso- lute property .2 XXXVIII, 549. 4. Imi^roper disi)Ositions of property in the charge and use ^ Where a trial is had, the proceedings of aboard of survey, already ordered in the same case, will not be competent evi- dence to prove the fact of the loss, &c., charged. Gr. C. M. O. 45, Dei)t. of the Missouri, 1877 ; do. 15, Dept. of Texas, 1877. And see Evidence, § 7. ^Compare ruling of reviewing officer in G. O. 35, Dept. of the East, 18G9 ; and see also do. 31, Bept. of the South, 1877; G. 0. M. O. 15, Dei)t. of Texas, 1880. See, further, note to EORTY-SECOND ARTICLE, § 2. ARTICLES OF WAR. 7 of soldiers, other than those indicated in the Article, will in general properly be charged under Art. 02.^ XX, 200. OTNETEEXTH AETIGLE. ''Any officer who uses contemptuous or disrespectful words against the President, the Vice-President, the Congress of the United States, or the chief magistrate or legislature of any of the United States in which he is quartered, shall be dismissed from the service, or otherwise punished, as a court-martial may direct. Any soldier who so oifends shall be punished as a court-martial may direct. When a trial of an oflicer or soldier has been resorted to under this Article, it has usuallj^ been on account of the use of " contenii^tuous or disrespectful words against the Presi- dent," or the government mainly as represented by the Pres- ident. The deliberate employment of denunciatory or con- tumelious language in regard to the President, whether spoken in public, or published, or conveyed in a communication designed to be made public, has, in repeated cases, been made the subject of charges and trial under this Article^; and, where taking the form of a hostile arraignment, by an officer, of the President or his administration, for the measures adopted in carrying on the late war, — a juncture when a pecul- iar obedience and deference were due, on the part of the subordinate, to the President as Executive and Commander- in-Chief, — was in general punished by a sentence of dis- missal. I, 78; Y, 491; XVIII, 592; XX, 516. On the other hand, it was held that adverse criticisms of the acts of the President, occurring m political discussions, and which, though characterized by intemperate language, were not apparently intended to be disrespectful to the President person alK or to his office, or to excite animosity against him, were not in gen- eral to be regarded as properly exi^osing officers or soldiers to trial under this Article. To seek indeed for ground of oftence in such discussions would ordinarily be inquisitorial and beneath the dignity of the government. Y, 491. ^ As the pawning of a revolver. G. C. M. 0. 77, Dept. of the Missouri, 1874. So, the gambling away of clothing. G. C. M. O. 41, Dept. of Texas, 1873. So, the spoihng bv a bugler of his bugle. G. C. M. O. 36, War Dept., 1876. •^See cases in G. C. M. O. 43, War Dept., 1863; G. O. 171, Army of the Potomac, 1862; do. 23, Id., 1863; do. 52, Middle Dept., 1863 ; do. 119, Dept. of the Ohio, 1863; do. 33, Dept. of the Gulf, 1863; do. 6S, Dept. of Washington, 1864; do. S6, Northern Dept., 1864 ; do. 1, Id., 1865 ; do. 29, Dept. of Xo. Ca., 1865. 8 ARTICLES OF WAR. TWENTIETH ARTICLE. "Any officer or soldier who behaves himself with disrespect toward his commanding officer shall be punished as a court-martial may direct." 1. The disrespect here indicated may consist in acts or wbids;^ and the particular acts or words relied ui^on as con- stituting the offence should properly be set forth in substance in the specification.^ It must be shown in evidence under the charge that the officer offended against was the " command- ing officer" of the accused.^ The commanding officer of an officer or soldier, in the sense of this Article, is properly the superior who is authorized to require obedience to his orders from such officer or soldier, at least for the time being. Thus where a battalion was temporarily^ detached from a regiment and placed under the orders of the commander of a portion of the Army distinct from that in which the main part of the regiment was included, held that it was the commander of this portion who was the commanding officer of the detachment ; and that the use by an officer of such detachment of disre- spectful language in reference to the regimental commander, (who had remained with and in command of the main body of the regiment,) was properly chargeable not under this Arti- cle, but rather under the G2d. XVIII, 407. 2. Held that disrespectful language used in regard to his captain by a soldier, when detached from his company and serving at a hospital, to the surgeon in charge of which he had been ordered to report for duty, was an offence cogniza- ble b3^ court-martial, not under this Article but under Art. 62. VI, 53. TWENTY-FIRST ARTICLE. ''Any officer or soldier who, on any iiretense whatsoever, strikes his su- perior officer, or draws or lifts uj) any weapon, or offers any violence against him, being in the execution of his office, or disobeys any lawful command of his superior officer, sliall suffer death, or such other punish- ment as a court-martial may direct." 1. To justify a conviction of the capital offence of offering violence against a superior officer, it should be made to ap- pear in evidence that the accused knew or believed that the 'G. O. 44, Dept. of Dakota, 1872. And see G. C. M. O. 28, War Dept., 1875 ; G. O. 47, Dept. of tlie Platte, 1870. ^G. C. M. O. 35, Dept. of the Missouri, 1872. ^G. O. 53, Dept. of Dakota, 1871. ARTICLES OF WAR. 9 person assaulted was in fact an officer of the Armj^ and was his *' sui)erior '^ in rank.^ XXIX, 485. 2. Under a charge of a violation of this Article, in offering violence to a superior officer, it should be alleged and proved that tbe officer assaulted was at the time " in the execution of his office." I, 4G2 ; IX, 90. 3. Jle/cZ that in charging a striking or doing of violence to a sui^erior officer under this Article, m a case where the assault wasfatal, it was aHowable to add in the specification, " thereby causing his death," as indicating the probable measure of \io- lence employed. XXIX, 485. 4. The "superior officer" in the sense of this Article, need not necessarily have been the commanding officer of the ac- cused at the time of the offence. The article is thus broader than Art. 20, which relates only to an offence against a " com- manding officer." 2 XIX, 248. 5. Where an inferior officer was charged with having dis- obeyed an order given him on the spot by a superior officer; held that it should be made to api^ear in proof that the latter, if not i)ersonally known to the accused to be his superior offi- cer, was recognizable as such by his uniform or otherwise. XYI, 604. 6. A non-compliance by a soldier with an order emanating from a non-commissioned officer, is not an offence under this Article, but one to be charged, in general, under the G2d.^ XI, 491. 7. Under a charge of a disobedience of the order of a supe- rior officer in violation of this Article, it should be alleged, and should api^ear from the evidence introduced, that the order or " command " was " lawful." XXYII, 488. An officer or soldier is not punishable for disobeying an unlaicfid order. XXYI, 003. But the order of a proper superior is to be i)re- sumed to be lawful, and should be obeyed, where it is not clearly and obviously in contravention of law, or existing orders, or the established usage of the service. And an in- ferior will in general not be held civilly liable for an injurious ' See G. O. 34, Dept. of Virginia, 1SG3. 2 See G. O. 7, Dept. of the Missouri, 1807. ^ See the provision, introductory to the Articles of War, of Sec. 1342, Eev. Sts., in which it is specified that " the word officer, as used therein, shall be understood to designate com- missioned officers." 10 ARTICLES OF WAR. consequence of his execution of an order of a superior, unless the same was palpably illegal on its face.^ [See Order, I § 6.] But a military inferior in refusing" or failing to compty with the order of a superior on the ground that the same is, in his opinion, unlawful, does so, of course, on his own personal responsibility^ and at his own risk. XXYI, 25G. 8. Held that a member of a post band who refused, (re- spectfully,) to obey an order of the post commander directing the band to play in a town in the neighborhood of the post for the pleasure of the inhabitants, was not chargeable with a military offence j such an order not being a '^ lawful com- mand" in the sense of this Article. XXVII, 520. So held that a soldier was not chargeable with *' disobedience of orders " in not complying witli an order forbidding him to contract marriage, (XXXVIII, 47 — see Marriage 5) and similarly lield of a refusal by a soldier to comply with an order, (in violation of Sec. 1232, Rev. Sts.,) to act as an offi- cer's servant.^ XLIV, 80. 9. The oifence of disobedience of orders contemjdated by this Article, consists in a refusal or neglect to comply with a specific order to do or not to do a particular thing. A mere failure to perform a routine duty is properly charged under Art. G2.=^ XXXIII, 280. Where an officer neglected fully to I^erform his duty under general instructions given him in regard to the conduct of an expedition against Indians; held that his offence was properly chargeable not under the 21st but under the G2d Article. XXXVIII, 454. 10. An officer or soldier on leave of absence cannot in gen- eral be made liable to a charge of disobedience of orders, ex- cept indeed where required by a positive order, issued on account of a public emergency, to return before his leave is expired, and failing to comx)ly with such requirement. XXXIX, 340. ^ See Despan v. Olney, 1 Curtis 0. 0. 309 ; Iliggs v. Stat'eJ 3 Cold. ?>:)', Slate v. Sparks, 27 Texas, G32 ; Trammell v. Bas- sett, 24 Ark. 499, and other cases cited under Order, I § 6. ^ So where a soldier was convicted of a disobedience of or- ders in refusing to assist in buildiug a private stable for an ofOcer, the finding was disapproved on the ground that such an order was not a lawful one. G. C. ]\1. O. 130, Dept. of Dakota, 1879. =^See G. C. M. O. 20, War Dept. 1872 ; do. 7, Dept. of Texas, 1874 J G. O. 24, 35, Fifth Mil. Dist. 1808. ARTICLES OF WAR. 11 TWENTY-SECOIs'D ARTICLE. "Any officer or soldier who begins, excites, causes, or joins in any mu- tiny or sedition, in any troop, battery, company, party, post, detachment, or guard, shall sulfer death, or such other punishment as a court-martial may direct." 1. Mutiny at military law maybe defined to be an unlawfi.l opposing or resisting of lawful military autliority, with intent to subvert the same, or to nullify or neutralize it for the time.^ It is this intent which distinguishes mutiny from other offences, and especially from those, with which, to the embarrassment of the student, it has frequently been confused, viz : those punishable by the 21st Article, as also those which, under the name of "mutinous conduct," are merely forms of viola- tion of x^rt. 02. The offences made punishable by this Arti- cle are not necessarily " aggregate" offences : ^ among them is the heglnning or causing of a mutiny — which may be committed by a single person. In general, however, the offence here charged will be a concerted proceeding ; the concert itself going far to establish the intent necessary to the legal crime. To charge as a capital offence under this Article a mere act of insubordination or disorderly conduct on the part of an in- dividual soldier or officer, unaccompanied by the intent above indicated, is irregular and improper.^ Such an act should in general be charged under Art. 20, 21, or G2. XXIX, 571 ; XXXYIII, 199. 2. Where a body of soldiers, under the reasonable but er- roneous belief that their legal term of service had fully ex- l)ired, quietly stacked their arms and refused to fall in and march when ordered to do so by their commanding officer, and having been brought to trial on a charge of mutiny, were found by the court not guilty of that charge but guilty only of "conduct to the prejudice of good order and military dis- cipline," (see Finding § 10,) and were moderately sentenced; ' Compare the definition and description of mutiny or revolt at maritime law, in United States r. Smith, 1 Mason, 147; United States v. Haines, 5 Id. 27G; United States i\ Kelly, 4 Wash. 52S; United States v. Thompson, 1 Sumner, 171; United States v. Borden, 1 Sprague, 370. -Samuel, 254,257; G. O. 77, W\ar Dept., 1837; do. 10, Dept. of the Missouri, 1803. ^ See G. O. 7, War Dept. 1848 ; do. 115, Dept. of Washington, 1805 ; G. C. M. 0. 73, Dept. of the Missouri, 1873. And compare United States r. Smith, 1 Mason, 147; United States v. Kelly, 4 Wash. 528; United States v. Thompson, 1 Sumner, 171. 12 ARTICLES OF WAR. advised that tliis was, on the whole, a wise judgment, and would properly be apjjroved by the reviewing authority. XXXY, 386. 3. Soldiers cannot properly be charged with the offence of joining in a mutiny under this Article, where their act con- sists in refusing, in combination, to comply with an unlawful order. Thus where a detachment of volunteer soldiers, who, under and by virtue of Acts of Congress speciallj^ authorizing the enlistment of volunteers for the purpose of the supi^res- sion of the rebellion, and with the full understanding on their part, and that of the officers by whom they were mustered into the service, that they were to be employed solely for this purpose, entered into enlistments expressed in terms to be for the war, and after doing faithful service during the war, and just before the legal end of the war, but when it was l^ractically terminated, and when the volunteer organizations were being mustered out as no longer required for the prose- cution of the war, were ordered to march to the plains, and to a region' far distant from the theatre of the late war, and engage in fighting Indians, wholly unconnected as allies or otherwise with the recent enemy 5 and thereui:>on refused, to- gether, to comi)ly with such orders, — held that they Avere not chargeable with mutiny. While by the strict letter of their contracts they were subject to be employed upon any mili- tary service up to the last day of their terms qf enlistment, the public acts and history of the time made it perfectly clear that this enlistment was entered into for the particu- lar purpose and in contemx)lation of the i)articular serv- ice above indicated, and to treat the parties as bound to another and distinct service, and liable to capital punishment if they refused to perform it, was technical, unjust, and in substance illegal. XLII, 524. 4. In a case where a brief mutiny among certain soldiers of a colored regiment was clearly provoked by inexcusable vio- lence on the part of their officer j the outbreak not having been j)remeditated, and the men having been, prior thereto, subordinate and well conducted ; advised that a sentence of death imposed by a court-martial upon one of the alleged mutineers should be mitigated, and the officer himself brought to trial. XXVI, G4. Similarly advised in the cases of sen- tences of long terms of imi)risonment imposed ui)on sundry ARTICLES OF WAR. 13 colored soldiers, who, (witbout previous purpose of revolt,) bad been provoked into momentary mutinous conduct by tbe recklessness of tbeir oificer in firing ui)on them, and wounding several, in order to sui)i)ress certain insubordination which might api)arently have been quelled by ordinary methods.^ XXY, 51, 75, ICO. TWENTY-rOUETH ARTICLE. ^ "All officers, of what condition soever, ha.vo power to part and quell all quarrels, frays, and disorders, whether among persons belonging to his own or to another corps, regiment, troop, battery, or company, and to order officers into arrest, and non-commissioned officers and soldiers into confinement, who talve part in the same, until their proper superior offi- cer is acquainted therewith. And whosoever, being so ordered, refuses to obey such officer or non-commissioned officer, or draws a weapon upon him, shall be punished as a court-martial may direct." TWENTY-FIFTH ARTICLE. "ISO officer or soldier shall use any reproachful or provoking speeches or gestures to another. Any officer who so offends shall be put in arrest. Any soldier who so offends shall be confined, and required to ask j)ardou of the party offended, in the presence of his commanding officer." This article confers no jurisdiction or power to punish on courts-martial, but merely authorizes the taking of certain measures oi prevention and restraint by commanding officers j i. e., measures preventive of serious disorders such as are indicated in the two following articles relating to duels.^ XXYIII, G50. * Compare cases in G. O. 12, War Dept., 1855 j do. 101, Id., 18G3 ; G. C. M. O. 50, Hdqrs. of Army, 18G7. 2 It is a principle of the common law that any bystander may and should arrest an aflrayer. [1 Hawkins, P. C, c. 03, s. 11; Timothy v. Simpson, 1 C. M. & R. 7G2, 7G5; Phillips V. Trull, 11 Johns. 187.] And that an officer or soldier, by entenng the military service, does not^ cease to be a citizen, and as a citizen is authorized and bound to put a stoj) to a breach of the i)eace committed in his presence, has been spe- cifically held by the authorities. [Burdett v. Abbott, 4 Taunt. 419 ; Bowyer, Com. on Const. L. of Eng. 499 ; Simmons, § 109G-1100.] This Article is thus an application of an estab- lished common law doctrine to the rehitions of the military service. [See its application illustrated in the following Gen- eral Orders : G. O, 4, War Dept., 1813 ; do. G3, Dept. of the Tennessee, 18G3; do. 104, Dept. of the Missouri, 1863 ; do. 52, Dept. of the South, 1871; do. 92, Id., 1872.] ^ Compare Samuel, 372. 14 ARTICLES OF WAE. TVv^EXTY-SIXTH AETICLE. " No officer or soldier shall send a cliallenge to another officer or soldier to fight a duel, or accept a challenge so sent. Any officer who so offends shall he dismissed from the service. Any soldier who so offends shall siiffer such corporal punishment as a court-martial may direct." To establish that a clialleuge was sent, there must ai^pear to have been communicated by one party to the other a de- liberate invitation in terms or in substance to engage in a X)ersonal combat with deadly weapons, with a view of obtain- ing satisfaction for wounded honor.^ The expression merely of a willingness to fight, or the use simply of language of hostility or defiance, will not amount to a challenge. On the other hand, though the language employed be couched in ambiguous terms, with a view to the evasion of the legal con- sequences, yet if the intention to invite to a duel is reason- ably to be implied, — and, ordinarilj^, notwithstanding the stilted and obscure verbiage employed, this intent is quite transparent, — a challenge will be deemed to have been given. And the intention of the message, where doubtful upon its face, may be illustrated in evidence by proof of the circum- stances under which it was sent, and especially of the jn^evious relations of the parties, the contents of other communications between them on the same subject, &c.^ And technical words in an alleged challenge may be explained by a reference to the so-called duelling code.^ It may be noted that our Articles of War, unlike the Brit- ish, fail to make i)unishable, as a specific military ofience, the engaging in a duel. Such an act, therefore, would, as such, be in general chargeable only under Art. 62. XXXIX, 247. ^Compare the definition in 2 Wharton, Or. L. § 2074-2679. 2 On the general subject of challenges, and the question what constitutes a challenge, see the principal cases of the sending of challenges^ in our service, as published in G. O. 64, A. G. O., 1827 ; do. 39, 41, Id., 1835 ; do. 2, War Dept., 1858; do. 330, Id., 1863; do. 11, Army of the Potomac, 1861; do. 46, Dept. of the Gulf, 1863 ; do. 223, Dept. of the Missouri, 1864; do. 130, Id., 1872; do. 33, Dept. & Army of the Tennessee, 1864. And comi)are Commonwealth v. Levy, 2 Wheeler, Cr. C. 245 ; Do. v. Tibbs, 1 Dana, 524 ; Do. v. Hart, 6 J. J. Marsh, 119; State v. Taylor, 1 So. Ca., 108; Do. v. Strickland, 2 Nott & McCord, 181 ; Ivey r. State, 12 Ala., 277; Aulger v. People, 34 Ills., 486, 2 Bishop, Cr. L. § 314; Saumel, 381-387. ^ State V. Gibbons, 1 South. 51. ARTICLES OF WAR. 15 THIRTIETH ARTICLE. ''Any soldier who thinks himself wronged by any officer may complain to the commanding officer of his regiment, who shall summon a regimental court-martial for the doing of justice to the complainant. Either party may appeal from such regimental court-martial to a general court -mar- tial ; hut if, upon such second hearing, the appeal appears to be ground- less and vexatious, the party appealing shall bo punished at the discre- tion of said general court-martial." 1. Tbis Article is not inconvsistent with Art. 83, which prohibits regimental courts from trying commissioned officers. It does not contemplate or i:)rovide for a trial of an officer as an accused^ but simply an investigation and adjustment of some matter in dispute — as, for examj^le, a question of accounta- bility for public property, of right to pay or to an allowance, of relief from a stoppage, &c. The regimental court does not really act as a court bat as a board, and the ''api)eal" au- thorized is practically from one board to another.^ But though the regimental court has no power to find "• guilty" or ''not guilty," or to sentence, it should come to some defi- nite opinion or conclusion — one sufficiently specific to allow of its being intelligently reviewed by the general court, if desired. XXIII, G31 ; XXVIII, 113; XXIX, 227 j XXX, 81 ; XXXII, 588. 2. The proceeding under this Article, not being a trials is not affected by the limitation of the 103d Article. Due dili- gence, however, should be exercised in i^resenting the com- plaint, and a delay in a certain case to do so for three years, (not satisfactorily explained,) held wholly unreasonable and properly treated by the court as seriously prejudicing the complaint. XXXI, 452. 3. The authority to summon a regimental court under this Article is vested in terms in the regimental commander. A department or other superior commander cannot properly exercise such authority, nor will his order add to the validity or effect of the i^roceeding. XXIX, 227. 4. The court caniiot take cognizance of a comi)laint against an officer no longer in the service. So, where a company com- mander, having entered on the pay-rolls an unauthorized stoppage against a soldier, had resigned, and the same stop- page was thereupon continued by his successor: held that ^See Macomb §103, 194; G. O. 13, War Dept., 1813 j I Opins. of Attys. Gen. 1G7. 16 ARTICLES OF WAR. the complaint should be i^resented against the hitter. XXXV, 332. 5. Where the alleged wrong was charged upon certain offi- cers' servants, and it did not appear that their acts were authorized or sanctioned by the officers who employed them, lield that the complaint was not one which could be taken cognizance of under this Article. XXIII, 631. THIRTY-EIGHTH AETICLE.^ "Any officer who is found drunk on liis guard, party, or other duty, shall he dismissed from the service. Any soldier who so oifends shall suffer such corporal punishment as a court-martial may direct." 1. Reld that a soldier found drunk when on duty was prop- erly convicted under this Article, though his drunkenness actually commenced before he went on the duty ; his condi- tion not being perceived till some time after he had entered upon the same. While it is in itself an offence knowingly to allow a soldier to go on duty when under the influence of intox- icating liquor, yet if a soldier is placed on duty while par- tially under this influence but without the fact being detected, and his drunkenness continues and is discovered while he remains upon the duty, he is strictly amenable under this Article, which prescribes not that the party shall become drunk, but that he shall be ''found drunV^ on duty.^ XXXI, 3li4. 2. A charge of drunkenness on duty, (drill,) held not sus- tained where the party was found drunk, not at or during the drill, but at the hour appointed for the drill, which, how- ever, by reason of his drunkenness, he did not enter upon or attend. The charge should properly have been laid under Art. 62. XXXIX, 226. 3. An officer reporting in i)erson drunk, upon his arrival at a post, to the commander of which he had been ordered to report, held chargeable under this Article. And so held of an officer reporting, when drunk, to the post commander for orders, as officer of the day, after having been duly detailed as such. XXXVII, 152. ^ Xote the emphatic order of the President in regard to violations of this Article, published in Cx. O. 104, Hdqrs. of Army, 1877. '' See cases in G. O. 11, Dept. of Louisiana, 1869 ; G. 0. M. O., 113, Dept. of the Missouri, 1873. ARTICLES OF WAR. 17 4. But where an officer, after being specially ordered to remain with his company, absented himself from it and from his duty, and, while thus absent, became and was found drunk, held that he was not strictly chargeable with drunk- enness on duty under this Article, but was properly charge- able with disobedience of orders and unauthorized absence, aggravated by drunkenness. XXXVIII, 425. 5. A post commander, while present and exercising com- mand as such, is deemed to be at all times on duty in the sense of this Article, and thus liable to a charge under the same if he become drunk at the post.^ XXVI, 480; XXXVIII, 30G. 6. A medical officer of a post, where there are constantly sick persons under his charge who may at any moment re- quire his attendance, may, generally speaking, be deemed to be *'on duty" in the sense of the Article, during the whole day, and not merely during the hours regularly occupied by sick call, visiting the sick, or attending hospital. If found drunk at auy other hour he may in general be charged with an offence under this Article. XXXVII, IIG. 7. The drunkenness need not be such as totally to incapac- itate the party for the duty : it is sufficient if it be such as materially to imi)air the full and free use of his mental or physical abilities.^ XXXVI, 444, XXXVII, 118, 152, G73 ; XXXVIII, 272 ; XLT, 339. It is not a sufficient defence to a charge of drunkenness on duty to show that the accused, though under the influence of liquor, contrived to get through and somehow i^erform the duty. XXXVII, 118. A finding, under a charge of a violation of this Article, of not guilty of being ^' found drunk," but guilty of being "found under the influence of liquor," (or by which the latter words ^ That the Article is not limited in its application to mere duties of detail, but embraces all descriptions and occasions of duty, — see the interpretation of the same as declared in (jr. O. 7, War Dept., 185G, and affirmed in G. O. 5, Id., 1857. The case in the latter order, indeed, was a case of drunken- ness while on duty as a post commander. See another case of the same character in G. 0. M. O. 21, Dei^t. of the Missouri, 1870, and the remarks of Maj. Gen. Schotield thereon, and compare G. C. M. O. 9, War Dept., 1875. 2 See G. C. M. O. 33, War Dept., 1875; also do. 21, Dept. of the Missouri. 1870; G. O. 53, 98, Army of the Potomac, 18G2 ; do. 48, Deptl of Va. & Xo. Ca., 18G4; do. 33, Dept. of the Platte, 1871. 2d 18 ARTICLES OF WAR. are sulxstituted in the specification for the former — see Find- iNGr § 4,) reGommended to be disapproved as making a dis- tinction loo fine for a practical administration of justice, and establishing a precedent which must tend to defeat the pur- pose of the Article.^ XXXVI, 444. 8. It is immaterial whether the drunkenness be voluntarily induced by spirituous liquor or by opium or other intoxicating drug : in either case the ofi'ence may be equally complete." XXXVIII, 409. 0. Drunkenness not on duty, or when off duty, when amounting to a '' disorder,'' should be charged under Article 62, unless, (in a case of an oificer,) committed under such circumstances as to constitute an ofi'ence under Art. 61. XXXI, 52. 10. Xo punishment except dismissal can legally be imposed upon an ofiicer on a conviction of the offence made punish- able by this Article. A sentence imposing, with dismissal, any further punishment, as imprisonment or forfeiture of i^ay, is, as to Svich additional penalty, unauthorized and inopera- tive, and should, so far, be disapproved. XIV, 330. [See Sixty-first Article, § 19.] THIRTY-XIXTH ARTICLE. '^Auy sentiuel who is found sleeping upon his post, or who leaves it before he is regularly relieved, shall suffer death, or such other jiunish- ment as a court-martial may direct." It is no defence to a charge of ^' sleeping on post" that the accused had been x^reviously overtasked by excessive guard duty ;^ or that an imperfect discipline prevailed in the com- mand and similar ofienccs had been allowed to pass without notice;^ or that the accused was irregularly or informally posted as a sentinel.^ Evidence of such circumstances, how- ever, may in general be received in extenuation of the offence ; or, after sentence, may form the basis for a mitigation or i^ar- ' Compare G. C. M. O. 33, War Dept., 1875. -Simmons § 157. And see Hough, (Precedents,) 208; James' Precedents, 60. ^ See G. O. 74, Army of the Potomac, 1862 ; also G. O. cited in note 5. ^G. O. 74, Army of the Potomac, 1862. 5G. O. 10, Middle Mil. Dept. 1865; do. 166, Dept. of the South, 1864. ARTICLES OF WAR. 19 tial remission of tlie punisbmeut.' An officer wlio places or continues a soldier on duty as a sentinel when fr«m excessive fati^i'ue, infirmity, or other disability, he is incompetent to f>erfor[n the important duties of such a position, will ordina- rily render himself liable to charges.^ XX, 250. FORTY-SECOXD AETIOLE. "Any officer or soldier wlio niisbeliaves himself before the enemy, runs away, or shamefully abandons any fort, post, or guard, which he is com- manded to defend, or speaks words inducing others to do the like, or casts away his arms or ammunition, or quits his post or colors to plunder or pillage, shall suffer death, or such other punishment as a court-martial may direct." 1. Misbehavior before the enemy may be exhibited in the form of cowardice, or it may consist in a wilful violation of orders, gross negligence or inefficiency, an act of treason or treachery, &c.^ It need not be committed in the actual sight of the enemy, but the enemy must be in the neighborhood, and the act of oftence Lave relation to some movement or service directed against the enemy, or growing out of a movement or operation on his part. It may be committed in an Indian war equally as in a foreign or civil war.* YI, 79; XI, 274; XLII, 54G. 2. The term "his arms or ammunition" does not refer to arms, &c , which are the personal property of the soldier, but means such as have been furnished to him by the proi)er officer for use in the service.^ The term is to be construed in connection with the further similar expression, "his post or colors." YI, 79. ^See G. O. 10,62, Dept. of~Ya. & No. Ca.',l8637do."2j :N"orthern Dept. 1865; do. 67, Dept. of Washington, 1866; do. 9, Dept. of the South, 1870 ; G. 0. M. O. 44, Dept. of Texas, 1875. 2 See G. O. 15, Army of the Potomac, 1861 ; do. 62, Dept. of Ya. & Xo. Ca., 186:^ ; G. C. M. O. 59, Dept. of Texas, 1872 ; do. SO, Dept. of the Missouri, 1875. ^The x)hases which this ofience may assume are well illus- trateunishment by court-martial under either Article.=^ II, 498; V, 291; XI, 215, 454. 2. During the late war, all inhabitants of insurrectionary States were prima facie enemies in the sense of this and the succeeding Article.^ XIV, 266. A citizen of an insurgent State who entered the U. S. military service became of course no longer an enemy. So held of a Lieutenant of the 1st -"&. Tenn. Cavalry. XXIX, 206. 3. It is no less a relieving an enemy under this Article 'See G. O. 67, War Dept., 1861; also the following Orders of that Department publishing and approving sentences of civilians tried and convicted under these Articles: — G. O. 76, 175, 250, 371, of 1863; do. 51 of 1864; G. C. M. 0. 106, 157, of 1864; do. 260, 671, of 1865. 2 XIII Opins. 472. ^Admitting this construction to be warranted so far as re- lates to acts committed on the theatre of war or within a dis- trict under martial law, it is to be noted that it is the eftect of the leading adjudged cases to x>reclude the exercise of the military jurisdiction over this class of oftences, when commit- ted by civilians in places not under military government or martial law. See, especially, U.io lyarte Milligan, 4 Wallace, 121-123 ; Jones v. Seward, 40 Barb. 563; also other cases cited in note to Court-Marttal, II § 7. ^ See the opinion of the U. S. Sui^reme Court, (frequently since reiterated, in substance,) as given bv Grier, J., in the '^ Prize Cases," 2 Black, 666, (1862;) and by Chase, C. J. in the cases of Mrs. Alexander's Cotton, and The Venice, 2 AVallace, 274, 418, (1864.) In the latter case the Chief Justice observes : ''The rule which declares that war makes all the citizens or subjects of one belligerent enemies of the government and of all the citizens or subjects of the other, ai)plies ecjually to civil and to iuternational wars." That an insurrectionary State was no less "euemy's couutry," though in the military occupation of the United States, with a uulitary governor appointed by the President — see oi)iuiou by Field J. in Coleman v. Tennes- see, 7 Otto, 516-517. ARTICLES OF WAR. 21 that the money, &c., furnished is exchanged for some com- modity, as cotton, valuable to the other party. XI I, 385 ; XIV, 206; XVI, 446. . 4. The act of '^ relieving the enemy " contemplated by this Article is distinguished from that of trading with the enemy in violation of the laws of war ; the former being restricted to certain particular forms of relief, while the latter includes ever^' kind of commercial intercourse not expressly author- ized by the government. XIV, 266. [See Law of War, § 1.] FORTY-SIXTH ARTICLE. "Whosoever holds correspondeuce -with, or gives iutelligence to, the enemy, either directly or indirectly, shall suffer death, or such other pun- ishment as a court-martial may direct." 1. Held that the ofience of holding correspondence with the enemy was completed by writing and putting in progress a letter to an inhabitant of an insurrectionary State during the late war ; it not being deemed essential to this offence that the letter should reach its destination.^ IV, 368 ; V, 274, 287 ; X, 567. 2. It is essential, however, to the offence of giving intelli- gence to the enemy that material information should actually be communicated to him; the communication may be verbal, in writing, or by signals. XIV, 273. FORTY-SEVEXTH ARTICLE. " Any officer or soldier who, having received pay, or having been duly enlisted in the service of the United States, deserts the same, shall, in time of war, suffer death, or such other punishment as a court-nuirtial may direct ; and in time of peace, any punishment, excepting death, which a court-martial may direct." See desertion. FORTY-EIGHTH ARTICLE. '* Every soldier who deserts the service of the United States shall bo liable to serve for such period as shall, with the time he may have served ln■e^ious to his desertion, amount to the full term of his enlistment ; and such soldier shall be tried by a court-martial and punished, although the term of his enlistment may have elapsed previous to his being appre- hended and tried ." 1. The liability, to make good to the United States the time lost by desertion, enjoined by the first clause of this Article, ^Compare Hensey's Case, 1 Burrow, 642; Stone's Case, 6 Term, 527; Samuel, 580. 22 ARTICLES OF WAR. is independent of Sii\j punishment which may be imposed by a court-martial, on conviction of the offence: it need not, therefore, be adjudged or mentioned in terms in the sentence.^ The liability is a legal consequence of the conviction, and a soldier can be subjected thereto only ui^on a conviction duly approved by the i^roper authority.^ XLII, 130. If the con- viction is disapproved, the legal status of the accused is the same as if he had been acquitted, and the obligation of addi- tional service is of course not incurred. XXVI, 568. 2. Where a deserter was sentenced to imprisonment for the "balance of his term;" held that he was not absolved from the obligation to make good time lost; these words referring to the balance of the term of his original enlistment. XI, 615, 680 ; XXVII, 439. 3. The time passed by a deserter in confinement under sen- tence cannot be computed as a part of the i^eriod required by the Article to be made good to the United States, such time not being a time of military service, but of i)uuishment. XXX, 506; XXXI, 275, 374. Nor can the i)eriod of confinement be credited where the sentence is remitted before it is fully exe- cuted. XXIV, 39. So, time passed by the deserter in arrest or confinement, (or in hospital,) while waiting trial or action upon his sentence, cannot be so computed. XI 1, 326. 4. The enforcement of the liability, where enforced at all, is generally postponed till after the execution of the punishment, (if any), imposed upon the deserter by his sentence. A de- serter may still be required to make good the time included in his unauthorized absence from the service, although his term of enlistment has exj^ired pending a term of confinement ad- 1 See G. O. 21, Dept. of the Lakes, 1873 ; do. 94, Dept. of the Missouri, 1867 ; G. C. M. O. 74, Dept. of the East, 1873. The old ruling contra, (see G. O. 26, 45, Hdqrs. of Army, 1843,) may be regarded as abandoned in our law and i)ractice. Compare authorities cited in next note. 2 See opinion of Atty. Gen. Taft of Sei)t. 1, 1876, XV Opins. 152, (citing Huber y.'Reilly, 52 Penn., 112.) The Atty. Gen. says : '^ This provision," (referring to the first clause of Art. 48,) " is to be construed along with the other penal provisions relating to the offence of desertion, all of which contemplate a trial and conviction before the iniiiction of the penalty. * * It comes into play only after a conviction." This opinion has been affirmed by an oi)inion of Atty. Gen. Devens of Oct. 16, 1878, (XVI Opins. — .^ AETICLES OF AVAR. 23 judged him by court martial ou conviction of his offence, pro- vided he has not been discharged. XXXI I, 40. 5. The United States may icaive the liability imposed by the first clause of the Article. It is in fact waived where the deserter, without being required to i)erform the service, is discharged by one of the officials authorized by Art. 4 to dis- charge soldiers. So it is waived where the soldier is adjudged to be dishonorably discharged by sentence of court martial, and this punishment is duly approved and thereupon exe- cuted. XXIX, 507 ; XXX, 506; XXXYII, 416. 6. The provision of the second clause of this Article applies only to desertions committed while the soldier is duly in the service and before his term of enlistment has expired. For an escape from military custody, committed after the expira- tion of the period for which he enlisted, and while he is held in arrest prior to trial or awaiting sentence, or in confinement under sentence, — a soldier cannot be made amenable, under this Article, to trial as for a desertion. XXXIV, 98. A de- serter, who has been duly discharged from the service, of course does not remain amenable to trial under this Article. XXXI, 48. 7. The liability to trial and punishment imposed by the second clause of the Article is subject to the two years' limi- tation of prosecutions prescribed by Art. 103. XXXI, 384. [See One hundred and third Article, § 9.] FIFTIETH AETICLE " No non-commissioned officer or soldier shall enlist himself in any other regiment, troop, or company, without a regular discharge from the regiment, troop, or company in which he last served, on a penalty of being reputed a deserter, and suffering accordingly. And in case any officer shall knowingly receive and entertain such non-commissioned officer or soldier, or shall not, after his being discovered to be a deserter, immedi- ately confine him and give notice thereof to the corps in which he last served, the said officer shall, by a court-martial, be cashiered." 1. This Article, in its first clause, does not create a specific ofltence, or one distinct from the desertion made punishable in the 47th Article, but declares in efl:ect that a soldier who abandons his regiment shall be deemed none the less a de- serter although he may forthwith re-enlist in a new regiment. It does not render the act of re-enlistment a desertion, but simply makes the re-enlistment, under the cu^cumstances in- 24 ARTICLES OF WAR. dicated, prima facie evideoce of a desertion from the previous enlistmeut from which the soldier has not been discharged, or, more accurately, evidence of an intent not to return to the same.^ The object of the provision, as it originally aj)- pears in the British code, apparently was to preclude the notion, that might otherwise have been entertained, that a soldier would be excused from repudiating or departing from his original contract of enlistment, i)r()vided he i^resently renewed his obligation in a different portion of the military force.^ XLII, 642. 2. Held that an enlisted marine, who abandoned the marine corps without a discharge and enlisted in the Army, could not be '' reputed a deserter " according to the terms of this Article ; but advised that he be turned over to the comman- dant of that corps for the proi)er disi^osition and action. XXXI, 170, 379. 3. Where a soldier enlisted in a certain regiment, after being officially notified that he was duly discharged from a x)re- vious enlistment, but without having received the written cer- tificate and evidence of his discharge, which, by mistake or accident, had not been delivered to him as required by Art. 4, — held that he could not properly be •' reputed" or charged as a deserter. XXXYIII, 343. FIFTY-FIRST ARTICLE. "Any officer or soldier who advises or persuades any otlier officer or soldier to desert the service of the United States, shall, in time of war, suffer death, or such other punishment as a court-martial maj^ direct; and in time of peace, any punivshment, excepting death, which a court- martial may direct." A declaration, made by one soldier to another, of a willing- ness to desert with him in case he should decide to desert, held not i)roperly an advising to desert, in the sense of this Ai'ticle. To constitute the ofl'ence of advising to desert, it is not essential that there should have been an actual desertion by the party advised. But held otherwise as to the offence of persuading to desert: to comi)lete this offence the persuasion should have induced the act.^ XXXIX, 407. ^See the similar view expressed in G. 0. M. O. 129, Dept. of the Missouri, 1872 ; do. 77, Id., 1874. ^ See Samuel, 330-1. ^Compare Hough, (Practice.) 172, and cases in G. O. 23, Dept. of the Missouri, 18G2; G'. 0. M. O. 11, 152, Id., 1808. ARTICLES OF WAR. 25 riFTY-rOUETH AETICLE. *' Every officer commanding in quarters, garrison, or on the march, shall keep good order, and, to the utmost of his power, redress all abuses or disorders which may be committed by any officer or soldier uuder his command; and if, upon complaint made to him of officers or soldiers beating or otherwise ill-treating any person, disturbing fairs or markets, or committing anj^ kind of riot, to the disquieting of the citizens of the United States, he refuses or omits to see justice done to the offender, and reparation made to the party injured, so far as part of thi'operly made to api)ear that he is formally charged with a crime or offence within the meaning of the Article, and that his surrender is required "by or in behalf of the party injured."^ In a case of a summary arrest of an officer' or soldier without due application, his release should be demanded, and if the demand is refused, he may legally be released by military force, if it be deemed expedient to resort to it. 3 III, 446 J VIII, 601 J XXXV, 357. 2. Where a military ofl&cer, without any formal application being made for his surrender in conformity with this Article, was summarily arrested and confined in i)rison by the civil authorities of a State, upon a charge of assault ui)on a citi- zen; and these authorities, as well as the governor of the State, when called ui^on to interfere, formally refused to re- lease him ; held (December, 1865,) that the department com- mander, in compelling his release by the presence and use of a military force, could not be said to have transcended his authority. XVII, 532. 3. The commanding officer, before surrendering the party, is entitled to require that the *' application" shall be so specific as to identify the accused and to show that he is charged with a particular crime or offence which is within the class described in the Article. Where it is doubtful whether the application is made in good faith and in the interests of law and justice, the commander may demand that the ai^plication be especially exi>licit and be sworn to ; and in general the ^ See the declaration of this x^rinciple in the recent case of Dov*' V. Johnson, 10 Otto, 169. -See Ex parte ]\[cEoberts, 16 Iowa, 603-605. "^See Ex parte Bright, 1 Utah, 151. 30 ARTICLES OF WAR preferable and indeed only satisfactory coarse will be to re- qnire the production, if practicable, of a due and formal war- rant or writ for the arrest of the party. ^ XXI, 5G7 ; XXIII, 490 ; XXXY, 357. The application required by the Article should be made in a case where the crime was committed by the party before he entered the military service equally as where it was committed by him while in the service. " In the former case a more exact identification may perhaps reason- ably be required. XII, 145. 4. The provisions of the Article are applicable only when the officer or soldier is accused of a crime or offence " which is i)unishable by the laws of the land," i. e., by the public law — statutes or constitution — of the i^articular State.^ Where the i^arty is charged with a mere breach of the peace or other disorder in violation of a local ordinance, by-law, or ■police regulation, he may legally be forthwith arrested and pro- ceeded against by the civil authorities, without any such formal application as is contemplated by the Article.* XXIX, C26; XXXV, 357, 478. 5. The Article is not applicable to a case of an offence com- mitted against the laws of the United States, as — for instance — the statutes prohibiting the introduction of liquor into the Indian country. XXXII, 445. Xor is it applicable to a case 1 See II Opins. of Attys. Gen., 10. 2 See G. O. 20, Dept. of the Northwest, 1864, where it is re- marked that there is an especial obligation to surrender the soldier, where the crime was committed by liim before enter- ing the military service. ^ As to the meaning of the term ^' laws of the land," espe- cially as contrasted with municipal ordinances, see Vanzant V. Waddell, 2 Yerger, 270; State Bk. v. Cooper, Id., 005; Horn V. People, 20 Mich., 228 ; Ux parte Bright, 1 Utah, 140, 158. ^ See Ex parte Bright, 1 Utah, 145. This case, however, is regarded ats going too far in holding that though a soldier may, without application to the military authorities, be ar- rested and detained^ by the civil authorities, for the violation of a city ordinance, lie may not be tried or punished b,>^ the lat- ter, but, for that purpose, must be surrendered to the military commander. Unless the offence of such a soldier directlj^ prejudiced military discipline, he could not be tried for the same at all by a military court; and if it did, he would be triable only for the breach of discii)line, leaving him still amenable to the local law for the civil disorder. ARTICLES OF WAE. 31 of an offence committed in a place over and witliin which the jurisdiction of the United States is exchisive.^ XXI, 5G7. 6. The party should be surrendered upon proper applica- tion, though the offence be one of which a military court has jurisdiction concurrently with the civil courts ; unless, indeed, the miUtary jurisdiction has already duly attached, (by means of arrest or service of charges with a view to trial,) in which case the prisoner may be surrendered or not as the proper authority may determine. A soldier under a sentence of confinement imposed by court martial cannot, in general, properly be surrendered under this Article. In sucli a case, the civil authorities should, regularly, defer their application till the military punishment has been executed or remitted.^ XXXI, 317. Where a soldier, duly surrendered under this Article and allowed to go on bail, was thereupon returned to duty, held that it was within the spirit of the Article for the department commander to instruct the commanding officer of such soldier to cause him to appear for trial at the proper tune. XXI, 457. 7. An of&cer or soldier accused as indicated by the Article, though he may be willing and may desire to surrender him- self to the civil authorities, or to appear before the civil court, should not in general be permitted to do so, but should be required to await the formal application. XXXI, 022. 8. In view of the obligation devolved by this Article upon officers of the Army, a post commander would properly be required to apprehend and hold for surrender to the civil au- thorities a soldier who, having been once surrendered under the Article, had escaped and returned to the post. ^ XXVII, 320. SIXTIETH ARTICLE. "Any person in the military service of the United States who makes or causes to be made any claim against the United States, or any officer thereof, knowing such claim to he false or fraudulent ; or ^See Civil Process, § 4. It is further held, in Ex parte McEoberts, 10 Iowa, 003, that the provisions of the Article apply only to oflftcers and soldiers while within the immediate control and jurisdiction of the military authorities, and there- fore do not apply to a case of a soldier ahsent on furlough ; but that such a soldier, pending his furlough, may be arrested in the same manner as any civilian. ' Compare YI Opins. of Attys. Gen. 423. ^ See a case to a similar effect published in G. O. 7, Dept. of the South, 1871. 32 ARTICLES OF WAR. ** Who presents or causes to be presented to any person in the civil or military service thereof, for approval or payment, any claim against the United States or any officer thereof, knowing such claim to be false or fraudulent ; or " Who enters into any agreement or conspiracy to defraud the United States by obtaining, or aiding others to obtain, the allowance or payment of any false or fraudulent claim ; or '' Who, for the j)urpose of obtaining, or aiding others to obtain, the ap- proval, allowance, or payment of any claim against the United States or against any ofScer thereof, makes or uses, or i)rocure8 or advises the making or use of, any writing, or other i)aper, knowing the same to con- tain any ialse or fraudulent statement ; or ''Who, for the xmrpose of obtaining, or aiding others to obtain, the ap- proval, allowance, or payment of any claim against the United States or any officer thereof, makes, or procures or advises the making of, any oath to any fact or to any writing or other paper, knowing such oath to be false ; or " Who, for the purpose of obtaining, or aiding others to obtain, the ap- proval, allowance, or payment of any claim against the United States or any officer thereof, forges or counterfeits, or x)rocures or advises the forg- ing or counterfeiting of, any signature upon any writing or other paper, or uses or procures or advises the use of, any such signature, knowing the same to be forged or counterfeited ; or " Who, having charge, possession, custody, or control of any money or other property of the United States, furnished or intended for the military service thereof, knowingly delivers, or causes to be delivered, to any per- sons having authority to receive the same, any amount thereof less than fchat for which he receives a certificate or receipt ; or ''Who, being authorized to make or deliver any paper certifying the receipt of any j)roperty of the United States, furnished or intended for the military service thereof, makes, or delivers to any person, such writ- ing, without having full knowledge of the truth of the statements therein contained, and with intent to defraud the United States ; or "Who steals, embezzles, knowingly and willfully misappropriates, ap- plies to his own use or benefit, or wrongfully or knowingly sells or dis- poses of any ordnance, arms, equipments, ammunitiou, clothing, subsist- ence -tores, money, or other property of the United States, furnished or intended for the military service thereof; or "Who knowingly purchases, or receives in pledge for any obligation or indebtedness, from any soldier, officer, or other person who is a part of or employed in said forces or service, any ordnance, arms, equipments, ammunition, clothing, subsistence stores, or other property of the United States, such soldier, officer, or other x)erson not having lawful right to sell or pledge the same, — " Shall, on conviction thereof, be punished by fine or imprisonment, or by such other i)nnishnient as a court-martial may adjudge. And if any person, being guilty of any of the offences aforesaid, Avhile in the military service of the United States, receives his discharge, or is dismissed from the service, he shall continue to be liable to be arrested and held for trial and sentence by a court-martial, in the same manner and to the same ex- tent as if he had not received such discharge nor been dismissed." ARTICLES OF WAR. 33 1. The offence knovrii as the duplicating of pay rolls, where it involves, as it generally does, a presenting or a causing to be l)rese.:ted of a false or fraudulent claim against the United States, is properly chargeable under this Article. XXXVII, 356 J XLII, 500. 2. Where an officer wlio had been sentenced to forfeit all pay due, but whose sentence had not yet been approved or published, i)resented pay accounts to the paymaster for his pay, and received the amount of the same ; held that he was not triable for the offence of i)resenting a fraudulent claim under this Article. X, 009. 3. The presenting of false and fraudulent claims for horses lost in battle, for recruiting expenses, and for rewards for the arrest of deserters — held offences within paragrai)hs 1, 2, and 4, of this Article. XII, 10, 38 ; XIII, 108. 4. Where a soldier, in order to procure his discharge from the service and the payment thereupon of a considerable amount not in fact due him, forged .the name of his command- ing officer on a discharge x)aper and a " final statement" paper, and presented the same to a paymaster; held that he was chargeable with offences defined in the 2d, 4th and Gth para- graphs of this Article. XXYIII, 008. 5. Where a disbursing officer, having caused a creditor of the United States to sign a receipt in blank, paid him a less sum than was due him, and afterwards inserted the true amount due in the receipt, so as to obtain credit with the United States for the greater sum ; held that he was charge- able with the offence defined in the 7th paragraph of this Article. XXI, 330. 6. Where an officer, by collusion with a contractor, who had contracted for the delivery of military supplies, received for a pecuniary consideration from the latter a less amount of supplies than the Uidted States was entitled to under the contract, while at the same time giving him a voucher certi- fying on its face the delivery of the whole amount, — held that such officer was chargeable with an ofience of the class defined in the 8th paragraph of this Article. XXXY, 420. 7. In a case of embezzlement of public funds * or property, ^ ^'All money lawfully in the hands of a public officer, and for which he is accountable, is monev of the United States.^ United States v. Watkins, 3 Cranch 0. 0. 441. 3d 34 ARTICLES OF WAR. charged under tliis Article, it is not necessary to allege in terms, or to i^rove, an intent to defraud the United States. It is the act of legal embezzlement which is made the offence, irrespective of the purpose or motive of such act. Y, 498 ; XXIII, 69. [See § 9, infra.] 8. In order to determine whether certain acts or conduct may properly be charged as constituting embezzlement of fjublic money under the ninth i^aragraph of this Article, the Sections of the Eevised Statutes — especially those contained in Ch. G of Title LXX — may i^roi^erly be recurred to. Acts here specified as constituting embezzlements in law may, when committed by officers of the army, be charged as em- bezzlements under this Article, and the rules of evidence established by these Sections may also be api)lied, where aj)- posite, to military cases.^ But as to the penalties prescribed in the same, these, though useful as going to indicate a reason- able measure of punishment Avhen imprisonment or fine is proposed to be adjudged, ,are of course in no respect obliga- tory upon military tribunals, and any approved military iien- alty or penalties, such as dismissal, suspension, &c., may be imposed by courts-martial upon conviction of embezzlement, either alone or in connection with imprisonment or fine. XXXVIII, 245, G2G. So, a term of confinement, or a fine, (or fori^iture of pay,) in excess of the penalties authorized for civil offenders, may legally be adjudged by such courts. XXXVIII, 245. 9. The withdrawing, by a disbursing officer of the army, from an authorized depository, of public funds for a i)urpose not prescribed or authorized by law — as for personal use, or to pay claims not due from the United States or i)ayable by such officer — being a form of embezzlement defined by Sec. 5488, Eev. Sts., lield i)roperly charged as embezzlement under the i)resent Article ; and convictions of officers upon such a charge, held authorized and legal. XXV, 583; XXVII, 414; XXXIII, 291, 48G; XXXVIII, 9G; XXXIX, IG. But held that to constitute such embezzlement, it is not necessary that there should have been a personal conversion ^ See cases in which embezzlements of this class were charged against officers of the army, in G. O. 1, War Dept., 18G1;"G. C. M.O. 43, 8G, Ildqrs. of Armv, 1SG8; do. 21, War Dept. 1871 ; do. 27, 34, Id. 1872 ; do. 81, Id., 1874 ; do. 52, Hdqrs. of Army, 1877. ARTICLES OF WAR. 35 of the funds or an intent to defraud. The object of the law is to provide a safeguard against the misuse and diverting from their appointed purpose of public moneys, and the in- tent of the offender, whether fraudulent or not, enters in no respect into the statutory crime. ^ If the withdrawal or ap- plication of the funds is simply one not prescribed or author- ized by law, the offence is complete." XXV, 583 ;' XXVII, IIG; XXXIII, 494; XXXVIII, 96; XXXIX, IG. An ab- sence, however, of criminal motive in the illegal act may be shown in mitigation of sentence in a military case. XXXIII, 494. So, held that it constituted no defence to a charge of an em- bezzlement of this class, (though it might be shown in miti- gation of punishment,) that the officer had restored to the public depository the funds illegally withdrawn by him before a formal demand was made for the same. XXV, 583. 10. It is a defence to a charge (under this Article) of the embezzlement defined in Sec. 5490, Eev. Sts., as consisting in a failure to safely keep public moneys by an officer charged Avith the safekeeping of the same, that the funds alleged to have been embezzled were, without fault on the part of the accused, lost in transportation, or fraudulently or feloniously abstracted. I, 435. 11. Sec. 5495, Eev. Sts., provides that the refusal of any per- son charged with the disbursement of public moneys, promptly to transfer or disburse the funds in his hands "upon the legal requirement of an authorized officer, shall be deemed, upon the trial of any indictment against such i)erson for embezzle- ment, as prima facie evidence of such embezzlement." Ap- plying this rule to a military case, it is clear that, in the event of such a refusal by a disbursing officer of the army, the burden of proof would be upon him to show that his pro- ceeding was justified, and that it would not be for the prose- cution to show what had become of the funds. So, where an acting commissary of subsistence, on being relieved, failed to turn over the public moneys in his hands to his successor, or to his post commander when ordered to do so ; or to pro- ^ See remarks of the Secretary of War in G. 0. M. 0. 34, War Dept., 1872. - Compare XIV Opins. of Attys. Gen., 473. 36 ARTICLES OF WAR. duce such moueys, exhibit vouchers for the same, or other- wise accouut for their use, wheu so required by his depart- ment commander ; held that he was properly charged with, and convicted of, embezzlement under this Article. XXII, 546. 12. Where a quartermaster used temporarily with his pri- vate carriage a pair of government horses in his charge; held that he was not properly chargeable with embezzlement, but with the offence, under this Article, of ' knowingly applying to his own use and benefit property of the United States, furnished for the military service.' lY, 421. 13. The misapprojwiation specified in the Article need not be an appropriation for the i)ersonal i)rofit of the accused. The words "to his own use or benefit," qualify only the term "applies." XXIII, 69. 14. In charging a stealing, embezzlement, misappropriation, &c., under this Article, it is not necessary to allege that the funds or i^roperty were "furnished or intended for the mili- tary service" : it is sufiicient if this fact appears from the evi- dence, and in most cases it will be inferable from the very nature of the proi)erty itself — as where, for exami)le, the same consists of "quartermaster stores," "subsistence stores," "ord- nance stores," &c. XXIX, 299, 315. 15. Where an officer of the quartermaster department used teams, tools, and other i^ublic property, in his possession as such ofiicer, in erecting buildings, &c., for the benefit of an association, composed mainly of civilians, of which he was a member; held that he was properly chargeable with a misap- propriation of property of the United States. X, 664. And similarly held of a loaning by such an officer of public prop- erty, (corn,) to a contractor, for the puri^ose of enabling him to fill a contract made with the United States through another officer.^ XXIX, 26. The fact that a practice exists in a ijost or other command of making a use, (not authorized by regu- lation or order, ) of government property for private puri)Oses, or of loaning it in the i)rospect of a j)rompt return, can con- stitute no defence to a charge for such act as an offence under this Article. Such i)ractice, however, if sanctioned, though improi)erly, by superior authority, may be- shown in evidence in mitigation of sentence. XXIX, 189. Compare case in G. C. M. O. 46, Ildqrs. of Army, 1869. ARTICLES OF WAR. 37 10. The offence of stealing, indicated in the 9th paragraph of this Article, consists in a larceny of "property of the United States furnished or intended for the military service." Except in time of war, (see Fifty-eighth Article, § 1,) larceny of oilier property can be charged as a military offence only when cognizable under Art. 02, as directly prejudicing good order and military discipline. XXX, 250. [See Sixty- seco]N^d Article, § 2.] 17. Held that under the concluding provisiou of this Article,^ a soldier might be brought to trial for an offence of the class specified therein, while held imprisoned, after dishonorable discharge, under a sentence imposed for another offence, pro- vided of course the two years' limitation of Art. 103 had not expired. XXXI, 34. [See One hundred and third Arti- cle, § 9.] 18. In view of the words, "in the same manner," employed in the last paragraph of this Article, considered in connection with the 77th Article and Sec. 1058, Eev. Sts., held that a vol- unteer or militia officer or soldier could be tried, after his dis- charge from the service, for a breach of this Article committed while in the service, only by a court composed in the one case of other than regular officers and in the other of militia officers. XIX, 070 J XXVI, 100. [See Seventy-seventh Article.] SIXTY-FIEST AETICLE. "Any officer who is convicted of conduct unbecoming an officer and a gentleman shall be dismissed from the ser'fice." 1. To constitute an offence under this Article, the conduct need not be "scandalous and infamous." These words, con. tained in the original article of 1775, were dropped in the form adopted in 1800. Xor is it essential that the act should ^ Whether this provision, in subjecting officers and soldiers discharged, mustered-out, ayment, in con- nection with the facts or circumstances rendering it dishonor- able, may properly be deemed to constitute an offence charge- able under this Article.^ XIII, 425 5 XXIII, 504^ XXVII, 430 5 XXVIII, 328; XXIX, 208. 12. Where an officer, in payment of a debt, gave his check upon a bank, representing at the same time that he had funds there, when in fiict, as he was well aware, he had none ; held that he was amenable to a charge under this Article. XIII, 207. 13. Xeglect or refusal to pay honest debts may constitute an offence under this Article, where so repeated or persistent as to furnish reasonable ground for inferring that the officer designs or desires to avoid, or indefinitely defer, a settlement. This, especially, where the debts are due to soldiers for money borrowed from, or held in trust for, them. XXI, 035 ; XLII, 54. 14. An indifference on the part of an ofiicer to his pecuniary obligations, of so marked and inexcusable a character as to induce repeated just complaints to his military commander or the Secretary of War by his creditors, and to bring dis- credit and scandal upon the military service, Jield^ to constitute an offence within the purview of this Article.^ XXIII, 504. 15. Where certain officers of a colored regiment made a practice of loaning to men of the regiment small amounts of money, for which they charged and received in payment at the rate of two dollars for one at the next pay day ; Jield that they were properly convicted of a violation of this Ar- ticle. XXIII, 200 ; XXIV, 72. ^ Oases of officers made amenable to trial by court-martial, under this Article, for the non-fulfilment of pecuniary obliga- tions to other ofiicers, enlisted men, post traders and civilians, are found in the following General Orders of the War Dept., and IId(]rs. of Army: — Xo. 87, of 1800; do. 3, oij^ 04, of 1809 ; do. 15, of 1870 ; do. 17, of 1871 ; do. 22, 40, of 1872 ; do. K), of 1873; do. 25, 50, 08, 82, of 1874; do. 25, of 1875; do. 100, of 1870 ; do. 40, of 1877. ^ See, on the subject of tliese comphiints, the Circular, issued originally from the War Department, (A. G. O.,) on Feb. 8, 1872, in which the Secretary of War " declares his intention to bring to trial by court-martial," under the 01st Article of War, ''any officer who, after due notice, shall fail to quiet such claims against him.'' ARTICLES OF WAR. 41 W. Where an officer stationed in Utah was married there by a Mormon official to a female with whom he lived as his wife, althongh having at the same time a legal wife residing in the States ; held that he might properly be brought to trial by general court-martial for a violation of this article. XXIII, 164. So held of an officer who committed bigamy by pub- licly- contracting marriage in the United States, while having a legal wife living in Scotland whom he had abandoned. XLII, 98. 17. Abusing and assaulting his wife by an officer at a mil- itary post, in so public and marked a manner as to disturb the post and bring scandal upon the service, held chargeable as an offence under this Article. XXXI, 395. 18. The institution by an officer of fraudulent proceedings against his wife for divorce, and the manufacture of false testimony to be used against her in the suit, in connection with an abandonment of her and neglect to i)rovide for her support, held to constitufe "conduct unbecoming an officer and a g'entleraan " in the sense of this Article. XLIII, 21. 19. According to the accepted i)rinciple of interpretation, by which Articles of War enjoining a specific punishment or punishments, are held to be in this particular both manda- tory and exclusive, no sentence other than one of simple dis- missal can legally be adjudged upon a conviction under this Article. A sentence which adds to dismissal any other i>en- alty or penalties — as disqualification for office, forfeiture ot pay, imprisonment, &c., is valid and operative only as to the dismissal, and as to the rest, shoidd be formally disapproved as being unauthorized and of no effect. lY, 283 ; IX, 072 ; XIY, 330. [See Sentence and PuNisniyiENT, § 3.] See EIGHTH ARTICLE, $ 8. SIXTY-SECOND ARTICLE, ^ 6. FINDING, ^ 10, 11, 12. GAMBLING. STATEMENT, $ 5. SIXTY-SECOXD ARTICLE. ''All crimes not capital, and all disorders and neglects, wliicli officers and soldiers maybe guilty of, to the prejudice of good order and military discipline, though not mentioned in the foregoing articles of War, are to be taken cognizance of by a general or a regimeutal, garrison, or field- officers' court-martial, according to the nature and degree of the offence, and punished at the discretion of such court." 42 ARTICLES OF WAR. 1. The word ^'crimes" in this Article, distinguished as it is from ''neglects" and "disorders," means civil crimes — as homicide, robberj^, arson, larceny, &c. " Capital" crimes, {i. €. criiiies capitally x>unishable,) including murder, or any grade of murder, made capital by statute, connot be taken cognizance of by courts-martial under this Article. I, 473 ; VII, 429, 405 ; XI, 176 ; XXIX, 257 ; XXXII, 478, 522, 523 ; XXXiV, 350, 447; XXXY, 585; XXXVI, 3G4 ; XLI, 50. [As to the jurisdiction of courts-martial in cases of mnrder, &c., in time of war, see Fifty-eighth Article, § 1.] A crime which is in fact mnrder, and capital by statute of the United States or of the State in which committed, cannot be brought within the jurisdiction of a court-martial under this Article, by charging it as " Manslaughter, to the prejudice," &c., or simply as " Conduct to the prejudice," &c.^ If the specification, or the proof, sliows that the crime was murder and a capital oftence, the court should refuse to take jurisdic- tion, or to find or sentence. If it assume to do so, the x)ro- ceedings should be disapproved as unauthorized and void. XXXIII, 155; XXXIV, 250; XLII, 451. 2. The term " to the i^rejudice of good order and military discipline," qualifies, according to the accepted interpretation, the word " crimes" as well as the words " disorders and neg- lects." Thus, the crime of larceny^ (sometimes charged as " theft" or " stealing,") is held chargeable under this Article, when it clearly and directly affects the order and discix)line of the military service. Stealing, for examj^le, from a fellow soldier or from an officer, (or stealing of i^ublic money or other public property, where the offence is not more properly a violation of Art. CO,) is generally so chargeable. XXIV, 441; XXVI, 23, 439, 487; XXXVI, 214; XXXVII, 131; XXXIX, 47. And so of any other crime, (not capital,) the commission of which has directly i)rejudiced military disci- pline. As for example, manslaughter, (or homicide not amounting to murder — see § 1,) of a soldier. XXV, 592; XXXI, 87, 278; XXXIII, 155; XXXVI, 6(>7 ; XXXVII, 380 ; XLI, 188 : Assault with intent to kill a fellow soldier. ^ See this opinion, as given in an important case, adopted by the Secretary of War in his action on the same published in G. C. M. O. 3, War Dei)t. 1871; also tlie similar rul-ngs in G. C. M. O. 28, Dept. of Texas, 1875 ; G. O. 14, Dept. of Dakota, 1808 ; do. 104, Army of the Potomac, 1802. A-RTICLES OF WAR. 43 XXVII, 587, 654: Forgery of the name of a disbursing or other military oflicer to a government check or draft. XXIX, 309 J or forgery of an ohicer's name to a check on a bank. XXXII, 623. (And this whether or not anything was in fact lost by the government or the bank or officer :) Forgery in signing the name of a fellow soldier to a certificate of indebt- edness to a sutler. IX, 328 ; or to an order on a paymaster. XLII, 562 : Embezzlement or misappropriation of the i)rop- erty of an officer or soldier. XXXIX, 201. 3. Otherwise, in general, where the offence is not such as directly to affect military discipline, (though it may perhaps do so in some indirect manner;) as manslaughter of a 6'a*/Zm?i, (XLI, 50 ;) larceny from a civilian, (XXXI, 535; XXXII, (}od ; XXXIII, 51 ; XXXVI, 214, 587; XXXVII, 131 ; XXXVIII, 12;) burglary of the house of a civilian, (XXXIX, 218;) — where the offence is not committed within a military post, or the party or property is not under military control, protection, or charge. ' (XXXIX, 218.) Where the crime is committed against a person wholly un- connected with the militarj' service, and no military order or rule of discipline is violated in and by the act itself, such act will not be rendered a military offence under this xVrticle by the fact that the soldier at the time of its commission is absent from his post without authority. XXXIX, 412. The principle, however, that a court-martial may take cog- nizance of a crime, (other than capital,) provided it directly affects the military service and prejudices military discipline, is not required to be api)lied in time of war to the cases of the crimes specified in Art. 58, these being brought at such a time within the cognizance of military courts, whatever the circumstances of the case or relations of the act committed. [See Fifty-eighth Article, § 1.] 4. Xo distinction of grand and petit larceny is known to military law. An inferior court has, under this Article, the same jurisdiction of larceny as has a general court. This ^See, as sustaining the view expressed in this paragrai)h, the remarks and action of the reviewing otlicers in the follow- ing Orders: G. O. Dept. of Washington, 1866; do. S^, Dept. of the Cumberland, 1867; do. 8. Dept. of the Columbia, 1872; do. :y^, Dept. of the Platte, 1872; G. C. 31. O. 27, Id., 1875; do. ij'S^ Dept. of the Missouri, 1860 ; do. 5, Dept. of Texas, 1871 ; do. 85, Dept. of Dakota, 1874. 44 ARTICLES OF WAK. crime, however, is, in general, one requiriog too severe a sen- tence to be adequately iKinished by an inferior court-mai'tial. XLII, 23. 5. Held that for an officer to print and publish to the army a criticism ni^on an official report, made by another officer in the course of his dut^^ to a common superior, charging that such report was erroneous and made with an improi^er and inter- ested motive, was gravely unmilitary conduct to the preju- dice of good order and military discipline. An officer who deems himself wronged by an official act of another officer should prefer charges against the latter or appeal for redress to the proper superior authority. He is not permitted to re- sort to any form of piiblication of his strictures or grievances. XXXIX, 431. So held that for an officer to publish or allow to be i)ublished in a newspaper of general circulation, charges and insinuations against a brother officer by which his char- acter for courage and honesty is aspersed and he is held up to odium and ridicule before the army and the community — was a highly unmilitary proceeding and one calling for a serious x^unishment upon a conviction under this Article, and this whether or not the charges as i)ublished were true. XLII, 284. [And compare Statement § 5.] 6. The following offences have been held i^roperly charged or chargeable under this Article, as disorders or neglects "to the prejudice of good order and military discipline : " Drunk- enness or drunken and disorderly conduct, at a post or in public, committed by a soldier or officer when not " on duty," and when the act, (in the case of an officer,) does not more proi^erly fall within the description of Art. 61, I, 463 ; VIII, 366 ; XXIV, 79 ; XXVII, 413 j XXVIII, 575 : Escape from military confinement or custody, (where not amounting to desertion — see Desertion § 4.) X, 474 : Breach of arrest, (where not properly chargeable under Art. 65.) XXIX, 175 : Malingering. XX, 50 : Disclosing a finding or sentence of a court martial in contravention of the oath prescribed in Art. 84 or %:j. XXI, 628 : Refusing to testify, when duly re- quired to attend and give evidence as a witness before a court martial. XLII, 596 : Joining with other inferior officers of a regiment in a letter to the colonel, asking him to resign. XLI, 226 : Xeglecting, by a senior officer "iiiesent for duty" with his regiment, to assume the command of the same when ARTICLES OF WAR. 45 properly devolved upon liim, and allowing such command to be exercised by a junior. XI, 172 : Culiiable malpractice by a medical officer in the course of his regular mihtary duty. II, 378 : Colluding with bounty brokers in procuring fraud- ulent enlistments to be made and bounties to be i^aid thereon. XIV, 32G: Violations, by an officer, of par. 1000, Army Keg- ulations, in bidding-inand purchasing, through another party, public property sold at auction by himself as quartermaster; also, in imrchasing subsistence stores, ostensibly for domestic use, but really for puri)oses of traffic. XXXIX, 283. [Viola- tions, indeed, of Army Regulations in general are properly chargeable under this Article as neglects, (or disorders,) to the prejudice of good order and military discipline :] Caus- ing, (by a quartermaster,) troops to be transported upon a steamer known b}" him to be unsafe. XV, 301 : Paying money due under a contract, (for military supplies,) to a party to wbom, with the knowledge of the accused, the contract had been transferred in contravention of Sec. 3737, Kev. Sts. XLII, 44: Inciting, (by an officer,) another officer to chal- lenge him to fight a duel. XXVIII, G50 : Assuming, (by a soldier,) to be a corporal in the recruiting service, and as such enlisting recruits and obtaining board and lodging for him- self and recruits without paying for same. XXXIX, 221) : Procuring, (by a soldier,) whiskey from the post trader by forging an order for the same in the name of a laundress. XXXVII, 270 : Breach of faith, (by a soldier,) in refusing to pay the post trader for articles obtained on credit, upon orders on him which had been guaranteed or ai^proved by the com- pany commander ui^on the condition that the amounts should be paid on the next pay-day. XXVII, 270, 283, 503 ; XXVIII, 298; XXIX, 574: Gambling by officers or soldiers under such circumstances as to imj)air military discipline, (where the conduct, in the case of an officer, does not rather consti- tute an offence under Art. Gl.) XXXI, 404. 7. The following acts or offences have been held to be not properly chargeable under this Article : A mere breach of the peace committed by a soldier, (while absent alone and at a distance from his post, ^) in a street of a city, and in violation ^That offences committed by a soldier while on furlough will not in general so directly prejudice military discii^line as to render him amenable to trial by court martial, — see Court Martial II §13. 46 ARTICLES OF WAR. of a municipal ordnance. XXXIII, 277 : Pecuniary trans- actions between enlisted men of a culpable character, but in their private capacity and not directly affecting the service or impairing military discipline. XI, 490; XVIII, 380; XXXVI, 480 : Speculating and gambling in stocks by a dis- bursing officer, the proper ^performance of whose military duty was not affected. (But recommended that he be relieved from the duty of disbursing public money.) XVII, 22: Ee- enlisting, by the procurement of the recruiting ofiBcer, after having been discharged for a disability, still continuing ; the act being in good faith, and the alleged offence being com- mitted before the party could be said to have fully come into the service. VI, 203 : Procuring him self — by a (late) soldier — to be re- enlisted by exhibiting a false honorable discharge, when he had in fact been discharged dishonorably, the act being done prior to the consummation of the enlistment, and while the party was really still a civilian. XXXIX, 511: Making and signing a fnlse '' declaration of recruit,'' such declaration being only a i)reliminary to enlistment and thus made before the party had actually become a soldier. XLII, 203 : Stating by a parry in the oath of enlistment that he knew of no impediment to his faithfully serving, after falsely representing in the " declaration" that he was not a married man; such statement being made only concurrently with the act of enlistment, not after the same was fully consummated, and being further no proper part of the statutory oath. XLII, 203. See Second xVrticle § 2. [The existing law is perhaps defective in not making acts of this last class i)unishable by the civil courts, but it would of course be beyond the scope of military authority to attempt to supply such a defect. XXXIX, 511.] 8. A crime, disorder, or neglect, cognizable under this Arti- cle, may be charged either by its name simply, as '^Larceny," "Drunkenness," ''Xeglcct of duty," &c.; or by its name with the addition of the words, " to the i)rejudice of good order and military discipline;" or simply as "Conduct to the prejudice of good order and military discipline; " or as " Violation of the 62d Article of War." It is immaterial in which form the charge is expressed, provided the specification sets forth facts constituting an act prima facie prejudicial to good order and miUtary discipline. VII, 485; IX, 328; XI, 228; XXVIII, AETICLES OF ^AH. 47 486. [See Charge § 2, 3.] Whenever tlie charge and speci- ficatiou taken together make out a statement of an act clearly thus prejudicial, &c., the pleading will be regarded as sub- stantially sufficient under this general Article. XVI, 316, 551. [See Chaege § 6.] 9. A charge of '' Conduct to the prejudice," &c., with a spec- ification setting forth merely trials and convictions of the ac- cused for x)revious oflences, is not a pleading of an offence under this Article, or of any military offence. XXVII, 331. [See Charge § 11.] So of a charge of "Habitual Drunken- ness to the prejudice," &c., with a specification setting forth instances in which the accused has been sentenced for acts of drunkenness. XXXIII, 175. [See Charge § 10.] Such charges indeed are in contravention of the i)rinciple that a party shall not be twice tried for the same offence. So, a specification under the charge of "Conduct to the prejudice," &c., which sets forth not a distinct offence but simjily the re- sult of an aggregation of similar offences, is insufficient in law. XXXVI, 432. TV^here the specifications to such a charge, in a case of an officer, set forth that the accused was "frequently" drunk, "frequently" absented himself without authority from his command, &c., held that these specifications were properly struck out by the court on the motion of the accused. In such a case the only correct pleading is a general charge under this Ai'ticle, with specifications setting forth — each separately — some i^articular and specific instance of offence. XXXVIII, 211. [See Charge § 9.] See eighth ARTICLE, q 3. seyexteenth article, ^ 4. twentieth article, ^ 1, 2. twenty-first article, $ 6, 9. TW^ENTY-SECOND ARTICLE, $ 1, 2. TWENTY-SIXTH ARTICLE. THIRTY-EIGHTH ARTICLE, $ 2, 9. FIFTY-EIGHTH ARTICLE, o 1. SIXTY-FIFTH ARTICLE, ^ 1. EIGHTY-SIXTH ARTICLE, $ 3. ARMY REGULATIONS, § 5. BURGLARY. CADET, $ 8. CHARGE, ^ 4. COURT-M.VIiTIAL, II ^ 12. FINDING, $ 10, 11, 12. GAMBLING. 48 ARTICLES OF WAR. MANSLAUGHTER ^ 1. PERJURY § 1. PRESIDING OFFICER OF THE COURT § 4, 5. SENTENCE AND PUNISHMENT $ 2. STATEMENT $ 5. SIXTY-THIED ARTICLE. "All retainers to the camp, and all persons serving with the armies (»f the United States in the field, thongh not enlisted soldiers, are to be sub- ject to orders, according to the rules and discipline of war." 1. The accepted interx)retation of this Article is that it sub- jectSj (in time of war,) the classes of persons specified, not only to military discipline and government in general, but also to the jurisdiction of courts martial. Individuals, how- ever, of the class termed '^ retainers to the camp^^'' as well as camp followers generally, have rarely been subjected to trial in our service. For breaches of discipline committed by them , the punishment has generally been expulsion from the limits of the camp and dismissal from employment. XXIII, 331. 2. The discipline authorized by the Article has mainly been applied to the description of ^'•persons serving ivith the armies of the United States in the field ^^"^ — that is to say, civilians serv- ing in a quasi military capacity in connection with troops, in time of war and on its theatre. Thus, during the late war, civilians of the following classes were, in repeated cases, held amenable, under this Article, to the military jurisdiction, and subjected to trial and i)unishment by courts martial : — Team- sters emx)loyed with wagon trains, watchmen, laborers and other employees of the quartermaster, subsistence, engi- neer, ordnance, i^rovost-marshal, &c., departments 5 ambu- lance drivers; telegraph operators 5 interpreters; guides; paymasters' clerks; veterinary surgeons; '^contract'' sur- geons, nurses and hospital atteiulants ; conductors and engi- neers of railroad trains oi)erated ui)on the theatre of war for military purx)oses ; officers and men employed on government transports, &c. Ill, 209; VII, 110; IX, 111, 140; XI, 493; XII, 370; XIII, 459. But the mere fact of employment by the government pending a general war, does not render the civil employee so amenable. The employment must be in con- nection with the army in the field and on the theatre of hos- tilities. Vir, 453, 511. 3. Held^ (June, 1803,) that the force employed in the ^' Earn ARTICLES OF WAK. 49 Fleet" on western waters was properly a coutingeiit of the army ratber than of the navy, and accordingly that civilian commanders, pilots and engineers employed upon such lleet during the war and before the enemy, were persons serving witli the armies in the held in the sense of this Artick', and, therefore, amenable to trial by court martial. II, 570. 4. Civil employees of the United States serving with the army in the field during active Avarfare with hostile Indian tribes, held amenable to trial by court-martial uny of the existing charges and specifications, though the list of wit- nesses api^ended to the original charges was omitted, (see ' Compare Blake's Case, 2 Maule & Sel. 428 ; Bailey v. Warden, 4 Id., 400. ARTICLES OF WAR. 53 Charge § 29 ; ) and though the charges themselves were not in sufficient legal form, and were intended to be amended and re-drawn. XXV, 350. 4. The fact that cases of officers put in arrest ^' at remote military posts or stations" are excepted from the application of the Article, does not authorize an abuse of the i^ower of arrest in these cases. And where, in such a case, an arrest, considering the facilities of communication with the depart- ment lieadquarters and other circumstances, was in fact unreasonably protracted without trial, held that the officer was entitled to be released from arrest upon a i^roper appli- cation submitted for the purpose. XXXII, 195, 484:. SEVENTY-SECOND AETICLE. *'Any general ofificer eommauding the army of the United States, a sep- arate army, or a separate department, shall he eompetent to appoint a gen- eral court-martial, either in time of peace or in time of war. But when any such commander is the accuser or prosecutor of any officer under his com- mand, the court shall be appointed by the President, and its proceedings and sentence shall be sent directly to the Secretary of War, by whom they shall be laid before the President, for his approval or orders in the case." 1. This Article specifies by what military officers a general court-martial may be constituted. The President of the United States has of course the power to order such a court, as the constitutional Commander-in-chief of the Army, irre- spective of this Article or other statute. XXXIII, 603. [See President, I.J 2. This Article, in empowering certain commanders to con- stitute the superior courts-martial, makes them the judges in general of the exiiediency of ordering such courts in x)articu- lar instances. Except where specially authorized to do so by law or regulation, (as in the case provided for by par. 1027, Army Eegidations,) an officer or soldier can not demand a court martial in his own case. XXXIV, 413. 3. Where a commander empowered by this Article to con- vene a general court martial, declines, in the exercise of his discretion, to approve charges submitted to him by an inferior and to order a court thereon, liis decision shoidd in general be regarded as final. XXXII, 323. 4. A colonel commandhig a department is not authorized, as such, to convene a general court : otherwise of a colonel assigned to the command of a department according to his 54 ARTICLES OF WAR. brevet rank of brigadier or major general. XXXVIII, 156 j XLI, 496. 5. The authority to order a court under this Article is an attribute of command. Thus a dei)artment commander, de- taclied and absent from his command for anj^ considerable period by reason of having received a leave of absence, (whether of a formal or informal character,) or having been placed upon a distinct and separate duty, (as that of a mem- ber of a court or board convened outside his department, for example,) is held to be incompetent during such absence to order a general court martial as department commander, even though no other officer has been assigned or has succeeded to the command of the department.^ XL, 78 j XLIY, 63. [See One hundred and fourth Article, § 4.] Xor can a department commander thus absent, exercise such authority throtigh a staff officer or other subordinate, or delegate the same to a subordinate to be exercised by him. XLIII, 264, 279. Xor, where a general court martial duly convened by a department commander, has, at a time when the commander is thus absent from his command, been re- duced, by an incident of the service, below five members, can another member legall^^ be detailed uj^on the court, by the assistant adjutant general, or other subordinate officer re- maining in charge of the headquarters; since such a detail would be an exercise of a portion of the authority vested by this Article in the commander, and which can in no part be delegated. XLII, 577; XLIII, 332. [See Seventy-fifth Article § 7.] 6. To fix upon the commander who convened the court the character of "accuser or prosecutor," it is not essential that he should have signed the charges on which the accused was tried. YIII, 38. 7. Where the commander who convened the court had also to do with the preparing or preferring of the charges, the question whether he is to be regarded as having been the " accuser or i^rosecutor " of the accused in the sense of this Article is mainly to be determined by his animus in the mat- ter. If, when the facts of the alleged offence are communi- cated to him, he determines that the same constitute a suffi- cient and proper ground for a trial, and thereupon directs a suitable officer, as an officer of his staff*, or the commanding ' See G. 0. M. O. 9, Dept. of Columbia, 1880. AUTICLES OF WAR. 55 officer of the regiment or company of the accused, to prepare or i)refer the charges, he acts simply in the due performance of an official duty and not as '' accuser or i)rosecutor." ^ Kor is his action any the less official, if, in the desire to have the proceedings regular and effectual, he himself directs as to the form of the charges, or, after the same are prepared, revises them so that they shall sufficiently set forth the alleged of- fences. Much less is he to be deemed an ^^ accuser or prose- cutor," where he causes the charges to be preferred, and pro- ceeds to convene the court, by the direction of the Secretary of War or a competent military sui)erior. On the other hand, where he himself initiateH the charge, out of a hostile animus toward the accused or a personal in- terest adverse to him, or from a similar motive adopts and makes his own a charge initiated by another, he is to be deemed an ^^ accuser or prosecutor" within the Article. Xor is he the less so where, though he has no personal feeling or interest in the case, he has become possessed with the con- viction that the accused is guilty and deserves punishment and, in this conviction, initiates or assumes as his own the charge or the prosecution. For in this case, equally as in the former, he is unfit to be m jud(je\\\)on the merits of the case: in the one instance he is too much prejudiced to be qualified to do justice; in the other he has condemned the accused be- forehand. VII, 5; XIV, 285; XXX, 170; XXXII, 78, 278; XXXIV, 104; XXXVII, 189; XLII, 626. 8. The objection, that the convening commander was the "accuser" or ''prosecutor" of the accused, being one going to the legal constitution of the court, may be raised before the court at any stage of its proceedings. [Or it may be taken to the reviewing officer with a view to his disapproving the proceedings, or may be made to the President, after the ai)proval and execution of the sentence, with a view to having ^ Comi^are late opinion — to a somewhat similar effect — of the Attorney General of August 1, 1878, (XVI Opins. — ,) in which it is also held that where the record of the trial fails to indi- cate that the convening officer was the " accuser or prose- cutor" of the accused, the latter, in applying to the Secretary of War to have the proceedings pronounced invahd on this ground, may establish the fact by the production of affidavits setting forth the circumstances of the case and the action of the commander. 56 ARTICLES OF WAR. the same declared invalid or to llie obtaining of other appro- priate relief.] Eegnlarly, nowever, the objection, if known or believed to exist, should be taken at or before the arraign- ment. I, 430 5 VIII, 38. If the objection is not admitted by the i^rosecution to exist, the accused is entitled to prove it like any other issue. I, 430. 9. The x^ro vision of this Article, (and of Art. 73,) that, when the convening commander is ''accuser or prosecutor," the court shall be convened by the President or ''next higher commander," being expressly restricted to general courts, has of course no application to regimental or garrison courts. The same principle, however, will properly be applied to pro- ceedings before these courts, if it can be done without serious embarrassment to the service. XXXIV, 353, 598; XXXY, 138 J XLII, 231. SEYEXTY-THIED AETICLE. ''In time of war the commaDtler of a division, or of a separate brigade of troops, shall be competent to appoint a general court-martial. But when such commander is the accuser or prosecutor of any person under his command, the court shall be appointed by the next higher commander." 1. According to the general definition given in the Act of March 3, 1799, (Sec. 1114, Eev. Sts.,) a division is an organ- ized command consisting of at least two brigades, and a bri- gade an organized command consisting of at least two regi- ments of infantry or cavalry. A brigade, however, to be a '''separate brigade''^ in the sense of this Article, must not exist as a component part of a division : to authorize its commander to convene a general court martial it must be detached from or disconnected with any division and be oi^erating as a dis- tinct command. Thus, where it appeared from the record of a trial that the court was convened by a colonel commanding the "2d Brigade, 3d Division, 14th Army Corps," held that it was quite clear that such colonel did not command a ''- sepa- rate brigade," and was therefore not authorized to order a general court martial. Ill, 546. 2. Held, prior to Aug. 31, 1804, (the date of the General Order specified in the next Paragraph,) that where a com- mand, not attached to a division but occupying a separate l)ost or district, or operating separately in the field, was made up of regiments or parts of regiments sufiicient to compose a brigade, and such as were commonly or might properly be ARTICLES OF WAR. 57 organized into a brigade command, the same might in general be viewed as constituting a "separate brigade" in the sense of this Article, i. e. so far as to empower its commander to convene a general court martial. VI, 250; X, 52, 107; XIII, 29. But Avliere a certain command consisted of but one reg- iment of infantry with three batteries of artillery, held that it could scarcely be regarded as a separate brigade within the meaning of the statute. X, 107. 3. On Aug. 31, 18G4, was issued from the War DepartrnxCnt a General Order — Xo. 251 of that year — whicli directed as follows: "Where a x)OSt or district command is composed of mixed troops, equivalent to a brigade, the commanding officer of the Department or Army will designate it in orders as 'a sei)arate brigade,' and a copy of such order will accompany the proceedings of any General Court Martial convened by such brigade commander. Without such authority, com- manders of i)Osts and districts having no brigade organiza- tion will not convene General Courts Martial." Under this Order, which was applied mainly to the commands designated in the late war as "Districts," it was held by the Judge Ad- vocate-General as follows : — That the fact that a district com- mand was composed not of regiments but of detachments merely, (which, however, in the number of the troops, were equal to or exceeded two regiments,) did not ])reclude its being designated as a " separate brigade," and that when so designated, its commander had the same authority to convene general courts martial as he would have if the command had the regular statutory brigade organization. XI, 110 : That though a district command embraced a force considerably greater than that of a brigade as commonly constituted, yet if not designated by the proper authority as a "separate brigade," its commander would be ^^thout authority to con- vene general courts martial, unless indeed his command con- stituted a separate "army" in the sense of the G5th (now 72d) Article. XIII, 340: That it was not absolutely necessary, to give validity to the proceedings or sentence of a general court martial convened by the commander of a separate bri- gade, that the command should be described as a Separate Brigade in the caption or sui)erscription of the order conven- ing the court and prefixed to the record, or even that a copy of the Order designating the command as a separate brigade 58 ARTICLES OF WAR. should accompany the proceedings. As to the hitter feature, the Order of 1864 is viewed as directory merely. And though not to accompany the record with a copy of the order thus constituting the command would be a serious irregularity, as would be also — though a less serious one — the omission of the proper formal description of the command from the convening order, yet if the command had actually been duly designated, and m fact was, a separate brigade, and this fact existed of record and could be verified from the ofQcial records of the department or army, the omission of either of these i^articu- lars, though a culpable and embarrassing neglect on the part of the court or judge advocate, would not, jjer se^ invalidate the proceedings or sentence. XIX, 280, G81. 4. Held^ (January, 18GG,) that until the status helli had been formally declared to be terminated by the President or Con- gress, such status must be held to be subsisting ; ^ and that, till such declaration, the authority vested by the Act of Dec. 24, 18G1, ch. 3, (now Art. 73,) in commanders of divisions and separate brigades might lawfully continue to be exercised. XXI, 136. SEVENTY-FOUETH ARTICLE. " Officers who may appoint a court-martial sliall be competent to appoint a judge-advocate for tlie same." See judge ADVOCATE, § 1. SEYEXTY-EIFTH AETICLE. " General courts-martial may consist of any number of officers from five to thirteen, inclusive ; but they shall not consist of less than thirteen when that number can be convened, without manifest injury to the service." 1. Under this Article a^ll officers of the active list of the army are eligible to be detailed as members of general courts -mar- tial; medical officers and chaplains equally with any others. XXXVI, 451 J XLI, 306. [But see Medical Officer § 2.] Eetired officers, in view of Sees. 1259, 1260, Eev. Sts., cannot legally be assigned to court martial duty. 2. But only officers can be so detailed : courts-martial com- posed in whole or in i^art of enlisted men are unknown to our ^ As to the date, (or dates,) of the legal termination of the war, and so of the operation, for the time, of this Article, see War. ARTICLES OF WAR. 59 law. XLII, 311. So an "acting assistant surgeon," being a civilian, is not qualified to sit on a court martial. XXII, 542. Though any officer may legally be detailed, it is desira- ble that no officer should be selected who, from having pre- ferred the charges or other known reason, may be i)resumed to be biased or interested in the case. XXXIX, 240. 3. Where, in the course of a trial, the number of the mem- bers of a general court martial is reduced b^^ reason of ab- sence, challenge, or the relieving of members, the court may legally proceed with its business so long as five members — the minimum quorum — remain : Otherwise, where the num- ber is thus reduced below five. XVI, 549. 4. While a number of members less than five cannot be organized as a court or i)roceed with a trial, they may per- form such acts as are i:)reliminary to the organization and action of the court. Less than five members may adjourn from day to day, and where five are present and one of them is challenged, the remaining four may determine upon the sufficiency of the objection. Y, 310. 5. A court reduced to four members and thereupon adjourn- ing for an indefinite period, does not dissolve itself. In ad- journing it should report the facts to the convening authority and await his orders. He may at any time complete it by the addition of a new member or members, and order it to reas- semble for business. V, 319 ; XXXIX, 328. G. Where a court, though reduced by the absence of mem- bers, operation of challenges, &c., to below five members, yet proceeds with and concludes the trial, its further proceedings, including its finding and sentence, (if any.) are unauthorized and inoperative. II, 448 ; VII, 440. 7. An assistant adjutant general, or other staff officer of a department commander, is not empowered, of his own author- ity, in the absence of the commander, to relieve im officer (h\\j detailed ui)on a court-martial by such conmiander, any more than he is so empowered to detail a new officer as a member of such a court. XLIII, 332. [See Seventy- Seco^^d Aeti- CLE § 5.] 8. It is not essential to the validity of the proceedings that the order convening a general court-martial of less than thir- teen members should state that '^ no other officers," (or '• no greater number,") "than those named can be assembled 60 ARTICLES OF WAB. without maoifest inj ury to the service." Par. 883 of the Army Regulations is merely" directory as to the form of the order. Attorney General Wirt, (I Opinions, 290,) did not hold such a statement to be essential, but simply exi)ressed the opinion that the President, before confirming a certain death sentence, adjudged by a court of less than thirteen members, would properly satisfy himself that a court of the full number could not have been convened without prejudice to the service. It was held at an early i)eriod by the U. S. Supreme Court that it was for the convening authority to determine as to what number of officers could be detailed without manifest injury to the service, and that his decision on the subject would be conclusive.^ XXXYII, 528. SEVENTY-SEVENTH ARTICLE. "OiScers of tlie Eegular Army shall not be comx^etent to sit on courts- martial to try tlie officers or soldiers of other forces, except as provided in Article 78." Although officers and soldiers of volunteers, not being militia, are as much a x)art of the Army of the United States as are regular officers, (see Volunteers § 1,) yet, in view of the terms of this Article, an officer of the regular army, so- called, would not be eligible for detail as a member of a court- martial convened for the trial of volunteer officers or soldiers, nor, when duly detailed as a member of a court-martial, would he be competent to take part in the trial of a volunteer by such court. XIX, 670. SEVEXTY-XIXTH ARTICLE. " Officers shall he tried only hy general courts-martial ; and no officer shall, when it can be avoided, be tried by officers inferior to him in rank." 1. Whether the trial of an officer by officers of an inferior rank can be avoided or not, is a question not for the accused or the court, but for the officer convening the court ; and his decision, (as indicated by the detail itself as made in the con- vening order,) upon this i^oint, as ux)on that of the number of members to be detailed, is conclusive. [See Seventy-fifth Article § 8.] An officer, therefore, cannot successfully chal- lenge a member because, merely , of being of a rank inferior to his own. Ill, 82. [See Eighty-eighth Article § 7.] ^Martin v. Mott, 12 Wheaton, 34-37. (1827.) ARTICLES OF WAR. 61 2. The statement sometimes added in orders convening* courts-martial to the effect that '•'• no officers other than those named can be detailed without injury to the ser\'ice/' is as superfluous and unnecessary for the purpose of excusing the detailing of officers junior to the accused, as it is for account- ing for the fact that less than the maxinmm number have been selected for the court. XI, 208. [See Seve]N'ty-fifth Article § 8.] EIGHTIETH AETIOLE. " In time of war a lield-officer may be detailed in every regiment, to try soldiers thereof for offences not capital ; and no soldier, serving with his regiment, shall be tried by a regimental or garrison court-martial when a field-officer of his regiment may be so detailed." 1. While the original statute, (Act of July 17, 18G2, c. 201, s. 7,) i^roviding for field officers' courts was open to the con- struction of authorizing these courts at all times, whether in war or in peace, and was quite generally regarded as so authorizing the same, the law as re-enacted in the i)resent Article, in the Code of 1874, expressly limits the detailing of field officers as courts to ^' time of tvar.''^ The Article substi- tutes the field officer's court for the regimental or garrison court in time of war, in all cases arising in a regiment, for the trial of which it is practicable to detail a field officer of the regiment. II, 58, ()S', Y, 523; XXXY, G40 ; XXXVI, 410. Held, as to one hundred and twenty-four cases, forwarded together to the Bureau of Military Justice, and which had been tried by field officers' courts convened in time of peace, and after the present code of Articles had been enacted by Congress, — that the proceedings in all the cases were unau- thorized and inoperative. XXXVI, 430. But, adrised that the soldiers tried and sentenced by these courts, (or by any other field officers' courts ordered in time of peace,) remained of course triable by general, or by regimental or garrison, courts in the usual manner. XXXVI, 630 ; XXXVII, 270. [See One hundred and second Article § 3.] 2. The field officer will properly be detailed by the colonel or commanding officer of the regiment, wherever there is a field officer, (other than such commander,) on duty with it. In i)ractice the major has generally been so detailed. Wiiere there is present with the regiment but a single field officer, who is also the officer in command, such officer cannot properly 62 ARTICLES OF WAK. detail himself as a court ; the detail in such case should there- fore be made by the next higher commander, as the brigade, division, or post commander, in whose command the regiment is iijcluded. I, 3G8, 400 ; Y, 523 -, VIII, 413 5 X, 470. The following commanders licld not authorized to convene a field ofiicer's court : A i)ost commander whose command does not include a regiment. XXI, 78 : A commanding ofiicer of a battalion. XIII, 480 : A commander of a draft rendezvous. XIY, 48. 3. Only a field ofiicer of a regiment can be detailed. XI, 497 ; XVII, 18, 50. A captain assigned to duty with his regiment according to his brevet rank of major, is a field officer for the time, and may be detailed. XII, 5G0 A post commander cannot be detailed as such. XXIII, 546. An ordnance ofiicer, (of field officer's rank,) commanding a detach- ment at an arsenal, cannot be detailed. VIII, 413. 4. Where a regiment, in time of war, contains no field officer eligible for the detail, a regimental or garrison court must be resorted to. I, 368 5 II, GS-, III, 81, 182, 644 j XIII, 14. 5. The field officer has jurisdiction only to try soldiers of his regiment. Ill, 613 5 YIII, 413; XXIX, 180. His juris- diction is co-extensive with the regiment, and attaches gen- erally, although the regiment for puri^oses of service is sepa- rated into portions, provided all the portions are under the command of the convening ofiicer. XXYI, 235. But it does not extend to a comiiany or portion of the regiment on detached service in a separate and distinct command. XXII, 608 5 XXIX, 202. 6. A field officer detailed as a court is not required to be sworn as such. I, 371 ; Y, 395, 405. 7. The whole duty of the court is, in practice, performed by the field ofiicer. Xo judge advocate or recorder is required to be, or has been, employed. The field officer i)repares his own record. I, 371 ; XI, 210. 8. The proceedings of the field officer are intended to be summary in their character. He will, however, properly make a brief succinct record of the same, setting forth the order of detail, the names, &:c., of the offenders, the oft'ences with which they were charged, with the time and place of commission, thei)leas, the findings and the sentences imposed by him. The nature and circumstauces of the offence or ARTICLES OF WAR. 63 offences in each case should be stated with sufficient particu- larity to enable the reviewing officer to determine whether the court had jurisdiction. It shoukl api)ear of course from the record that the accused in each case was present before the court, and that the charges were investigated : in prac- tice, liowever, the testimony luis not in general been recited. I, 371, 400, 4865 III, 280; Vl, 584; VIII, 249, 414; IX, 29; XXIV, 309. 9. The accused is not entitled to challenge the field officer, (see Eighty-Eighth Article § 1,) and it is not essential that the record should show that he was afforded an oppor- tunity for challenge. Any material objection, however, of the nature of a challenge, tluit may be offered by the accused to the officer will properly be set forth in the record as a fact for thg consideration, (in connection with the sentence,) of the reviewing authority, by whom, as indicaf^d in Art. 110, the proceedings are to be approved. XLI, 210. EIGHTY-FIRST ARTICLE. ''Every officer commanding a regiment or corps shall, subject to tho provisions of article eight}', be competent to appoint, for his own regi- ment or corps, courts-martial, consisting of three oihcers, to try offenses not capital." 1. Held that the Chief of Engineers was authorized to order a court under this Article for the trial of soldiers of the engineer battalion; the same, in connection with the engineer officers cf the army, being deemed, in view of sees. 1094, 1151, 1154, &c., of the Revised Statutes, to constitute a "corps" in the sense of the Article. XXII, 497. So heU that the Chief of Ordnance was authorized to convene such a court for the trial of the enlisted men authorized by Sec. 1162, Rev. Sts., to be enlisted by him; the same being deemed to con- stitute, with the ordnance officers, such a separate and dis- tinct branch of the military establishment as to come within the general designation of " corps " employed in the Article. XXXVIII, 190, 540. So held that the Chief Signal Officer, under the provisions of the acts of July 24, 1870; June 20, 1878, &c., relating to his branch of the service, was author- ized to order courts martial, as commanding a " corps '' in tbe sense of this Article. XXX, 509. 2. It is not necessary that an order convening a court under this (or the next) Article, in time of war, should state in terms 64 ARTICLES OF WAR. tliat it is not practicable to detail a field officer under Art. 80. It is good practice, however, and not nnusnal, to add a state- ment to this eflect. XXIII, 517. 3. Under par. 898, Army Regulations, it devolves upon a department commander to supervise the proceedings of regimental and garrison courts martial transmitted to his headquarters, and if he discovers any material error, defect or omission in a record or in the action taken in the case by the inferior commander, to return the j^roceedings to the latter, calling his attention to the correction deemed proper to be made. XXXV, 105, 174. EIGHTY-SECOND ARTICLE. '^ Every officer commanding a garrison, fort, or other place, where the troojjs consist of different corps, shall, subject to the provisions of article eighty, he compej^ut to apx)oint, for such garrison or other placei^ conrts- martial, consisting of three officers, to try offenses not capital." 1. It is not essential that the "officer commanding" should be of the rank of field officer. A commanding officer, though a captain or lieutenant, may convene a court martial under this Article, provided he has the required command. VIII, 483. 2. A commanding officer is not authorized to detail himself, with two other officers, as a court under this, (or the preced- ing,) Article. XXIV, 2G3. An ''acting assistant surgeon,'' not being an officer of the army, cannot be detailed on such court. XXX, 109. [See Seventy-Fifth Article § 1.] 3. The general term '' other place, '^'' is deemed to be intended to cover and include any situation or locality whatever — post, station, camp, halting i^lace, &c., at which there may remain or be, however temporarily, a separate command or detach- ment in which different cori^s of the army are represented, as indicated in the next paragraph. If such command, so situ- ated, contains three officers, other than the comniander, avail- able for service on court martial, the commander will be comx)etent to exercise tlie authority conferred by this article. XLIY, 32. 4. Held, in view of the early Orders^ relating to the sub- ject andot the i^ractice thereunder, that the presence on duty ^The original order is G. O. 5, Hdqrs. of Army, 1843. And see the law as announced later in G. O. 13, Fourth ]MiI. Dist., 18G7. ARTICLES OF WAR. 65 witli a garrison, detachment, or other separate command, at a fort, arsenal, or other post or place, and as a part of such command, of a single representative, ofQcer or soldier, of a corps, arm, or branch of the service other than that of which the bulk of the command is composed, — as an ofQcer of the quartermaster, subsistence, or medical department, a chap- lain, an ordnance sergeant or hospital steward, an officer or soldier of artillery where the command consists of infantry or cavalry, or rice versa, &c., — might be deemed sufficient to fix upon the command the character of one '* where the troops consist of different corps," in the sense of this Article, and to empower the commanding officer to order a court martial under the same. YII, 174 j XIY, 48; XXI, 118; XXVI, 254. The presence, however, with the command, of a civil employee of the army, (as an " acting assistant surgeon,") could have no such effect. Till, 483. 5. Where, after a garrisdto court had tried the cases re- ferred to it but before its proceedings had been acted upon the command of the post was devolved ui)on the officer who had been president of the court, held that such officer would legally and properly act upon the proceedings ; the case not being one in which the action of the department or other higher commander was required by the one hundred and ninth Article of war. XLIII, 2G8. EIGHTY-THIRD ARTICLE. "Regimental and garrison courts-martial, and field-officers detailed to try offenders, shall not liavc power to try capital cases or commissioned officers, or to inflict a fine exceeding one month's pay, or to imprison or put to hard labor any non commissioned officer or soldier for a longer time than one month." 1. Under this Article, field officers' courts are invested with the same jurisdiction and power of x)unishment as regi- mental and garrison courts. I, 400. 2. Cajntal offences, (?'. e., offences capitally punishable,) not being within the jurisdiction of inferior courts, such courts cannot take cognizance of acts specifically made punishable by Art. 21, however slight be the offences actually committed.^ ' G. O. 21, Hdqrs. of Army, 1858. And see G. O. IS, War Dept., 1850; do. 0, Dept. of L'tah, 1858, where the proceedings of garrison courts in cases of capital offenses are i^ronounced void. 5 D 66 AUTICLES OF WAR. 11,189; XI, 210; XXIV, 195; XXYI, 533; XXYIII, 53; XXXII, 334. 3. A sentence forfeiting pecuniary allowances in addition to pay, where the entire forfeiture amounted to a sum greater than one month's pay, held not authorized under this Article. XXIX, 101. 4. Where, in a case of a soklier whose monthly i^ay was $13, a forfeiture of $15 was imposed by a garrison court, held that the same, being in excess of the authority of the court, could not be made legal by an approval, by the reviewing officer, of the sentence, as to $13, and a disapi>roval as to the rest. XXXVIII, (j3(j. 5. A sentence, adjudged by a garrison court, of confinement '' till the expiration of the term of service" of a soldier, held unauthorized unless the soldier had no more than one month left to serve. XXVII, 483. 6. The limitation of the authori^ of inferior courts in regard to sentences of imprisonment and .fine, held not to preclude the imx)osition by them of other punishments sanctioned by the usage of the service ; such, for example, as reduction to the ranks, either alone or in connection with those or one of those expressly mentioned. XXX, 687. 7. The limitations imi)osed by the Article have reference of course to single sentences. For distinct offences made the subject of different trials resulting in separate sentences, a soldier may be placed at one and the same time under sev- eral penalties of forfeiture and imprisonment, or either, exceed- ing together the limit affixed by the Article for a single sentence.^ XXXI, 3. 8. While inferior courts have, equally with general courts, jurisdiction ot all military offences not cax)ital, yet, in view of the limitations upon their authority to sentence, it is in gen- eral inexpedient to resort to them for the trial of the graver offences, — such as larcenies, aggravated acts of drunkenness, protracted absences without leave, i&c, a proper and ade- quate punishment for which would be beyond the power of such tribunals. So, as a reviewing officer is never authorized to add to the punishment imi^osed by any court martial, (see Sentence and Punishment § 13,) the more serious offences should, Avhere practicable, be referred for trial to general courts ~ ^See G. 0. 18, War Dept, 1859. AUTICLES OF WAR. 67 which alone are vested with a fall discretion to impose pun- ishment in proportion to the gravity' of the offence. VII, 3G, 207; XI, 210; XYI, 315; XXYl, 487, 533; XLII, 33. An inferior court cannot, however, legally decline to try or sentence an offender on the ground that it is not em^^ow- ered under this Article to impose a punishment adequate to his actual offence. XXVIII, 57. EIGHTY FOURTH ARTICLE. "The judge-advocate sliall administer to eacli member of the court, before they proceed upon any trial, the following oath, Avhich shall also be taken by all members of regimental and garrison courts-martial : * You, A B, do swear that you will well and truly try and determine, according to evidence, the matter now before you, between the United States of America and the prisoner to be tried, and that you will duly administer justice, without partiality, favor, or affection, according to the provis- ions of the rules and articles for the government of the armies of the United States, and if any doubt should arise, not explained by said arti- cles, then according to your conscience, the best of your understanding, and the custom of war in like cases ; and you do further swear that you will not divulge the sentence of the court until it shall be published by the proper authority ; neither will you disclose or discover the vote or opinion of any jiarticular member of the court-martial, unless required to give evidence thereof, as a witness, by a court of justice, in a due course of law. So help you God.' " 1. This Article makes the administering to the court of the form of oath thereby prescribed an essential preliminary to its entering upon a trial. ^ Until the oath is taken as speci- fied, the court is not qualified '-to try and determine." XXXVIII, 196. The arraignment of a prisoner and reception of his plea — which is the commencement of the trial— before the court is sworn, is without legal effect. IX, 293; XI, 323. The Article requires that the oath shall be taken not by the court as a whole, but by " each member." Where, therefore, all the members are sworn at the same time, the judge advo- cate will i)referably address each member by name, thus " you A. B., 0. D., E. F., &c., do severally swear," &c. XIII, ^ See in this connection, G. O. 15, Hdqrs. of Army, 1880, cited under Judge Advocate, § 1, which, in directing that judge advocates shall be detailed for regimental and garrison, as well as general, courts martial, rescinds G. O. 49 of 1871, prescribing a special form of oath tor the former courts, and thus provides for their taking the due and regular oath recited in Art. 84. 68 ARTICLES OF WAR. 483. A member added to the court, after tlie members origi- nally detailed have been duly sworn, should be separately sworn b}^ the judge advocate in the full form i)rescribed by the xYrticle : otherwise he is not qualified to act as a member of the court. YIII, 7^ X, 5G3; XIV, 350. A member who X^refers it may be affirmed instead of sworn. II, 562. [See Sec. 1, Eev. Sts.] 2. The members are sworn to try and determine tlie matter before them at the time of the administering of the oath. In a case, therefore, where, after the court had been sworn and the accused had been arraigned and had i^leaded, an addi- tional, charge, setting forth a new and distinct oft'ence was introduced into the case, and the accused was tried and con- victed upon the same ; — held that, as to this charge, the pro- ceedings were fatally defective, the court not having been sworn to try and determine such charge. ^ XXIY, 513. [And see Charge § 9.] 3. It is a departure from the engagement exjiressed in the body of the oath — to try and determine according to evidence, and administer justice according to the Articles of War, &c., — for a court martial to determine a case either upon per- sonal knowledge of the facts possessed by the members and not put in evidence, or according to the private views of justice of the members independently of the provisions of the code. 2 XXX, 56. 4. Where the vote of each member of the court upon one of several specifications upon which the accused was tried, was stated in the record of trial, held that such statement was a clear violation of the oath of the court, though it did not affect the validity of the i)roceedings or sentence. II, 59. A statement in the record of trial to the effect that all the mem- bers concurred in the finding or in the sentence, while it does not vitiate the proceedings or sentence, is a direct violation of the oath prescribed by this Article. II, 76 ; YII, 3. [See Sixty Secojsd Article § 6.] 5. The disclosing of the finding and sentence to a clerk by permitting him to remain with the court at the final deliber- ' See G. 0. M. O. 39, War Dept. 1867 ; G. O. 13, l^orthern Dept. 1864. ^Compare G. O. 21, Dept. of the Ohio, 1866 j G. 0. M. O. 41, Dept. of Texas, 1874. ARTICLES OF WAR. 69 ation aDcl enter the judgment in tlie record, is a grave irreg- ularity, though one which does not affect the validity of the proceedings or sentence. XXYIII, 146. [See Clerk § 3.J 6. The words "a court of justice" are deemed to mean a civil or criminal court of the United States, or of a State,^ &c., and not to include a court martial. ^ A case can hardlj^ be supposed in which it would become proper or desirable for a court martial to inquire into the votes or opinions given in closed court by the members of another similar tribunal. XLI, 450. See sentence AND PUNISHMENT ^ G. EIGHTY-SIXTH AETICLE. ''A court martial may ijunish, at discretion, any person wlio uses any menacing words, signs, or gestures, in its presence, or who disturbs its proceedings, by any riot or disorder." 1. The power of a court-martial to punish, under this Arti- cle, being confined practically to acts done in its immediate IDresence,^ such a court can have no authority to punish, as for a contemj)t, a neglect by an officer or soldier to attend as a witness in compliance with a summons.* Y, 172. 2. Held that a court-martial would not be authorized to punish, as for a contempt, under this Article, (or otherwise,) a civilian witness didy summoned and appearing before it, but, when put on the stand, declining, (without disorder,) to testify. XLII, 595. 3. Where a contempt within the descriiDtion of this Article has been committed, and the court deems it proper that the offender shall be punished, the proper course is to susi^eud ^ The only case which has been met with in which the mem- bers of a court martial have been required to disclose their votes hj the process of a civil court, is that of In re Mac- kenzie, 1 Pa. Law J. E. 356, in Avhich the members of a naval court martial were comi^elled, against their objections, to state their votes as given upon the findings at a particular trial. 2 In the present corresponding British Article, the words ''or a court martial" are added after the words " a court of justice.'^ ^It was held by the Secretary of War in the case of Lt. Col. Backenstos — G. O. 14, War Dept., 1850, — that a court mar- tial had, under this Article, no power to j)unish its own members. * As to the i)ower of courts of inquiry to iDunish for contemj)t, see ONE HUNDRED AND FIFTEENTH ARTICLE § 5, and notC. 70 ARTICLES OF WAR. tbe regular business, and after giving- the party an oppor- tunity to be heard, exphiin, &c./ to proceed — if the explana- tion is insufficient — to impose a i)unishment ; resuming there- upon the original proceedings. The action taken is properly summary, a formal trial not being called for. Close confinement in quarters or in the guard house during the trial of the pend- ing case, or forfeiture of a reasonable amount of i)ay,has been the more usual punishment. XXX, 3G1, 570. Instead of pro- ceeding against a military person for a contempt in the mode contemplated by this Article, the alternative course may be pursued of bringing him to trial before a new court on a charge for a disorder under Art. G2.^ XXXI, 59. EIGHTY-EIGHTH AETICLE. '' Members of a conrt-martial may be cballengecl by a prisoner, but only for cause stated to tbe court. The court sliall determiue tbe relevancy and validity thereof, and shall not receive a challenge to more than one member at a time." 1. This Article authorizes the exercise of the right of chal- lenge before all courts except field officers' courts. These courts are not subject to be challenged, because, being corn- loosed of but one member, there is no authority provided which is comi^etent to i^ass upon the validity of the challenge. XI, 210. 2. It is ordinarily a sufficient ground of challenge to a mem- ber that he is the author of the charges and is a material wit- ness in the case. II, 584; XX, 18; XXXI, 210; XXXVII, 43, 315 ; XXXIX, 240. The mere fact that he is to be a wit- ness is not in general to be held sufficient. II, 584 ; XXXIII, 137. 3. The mere fact that a member signed or formally pre- ferred the charges is not sufficient ground of objection, since he may have done so ministerially or by the order of a supe- rior. IX, 258. But where a member, upon investigation or otherwise, has initiated or preferred the charges as accuser, or as prosecutor has caused them to be brought to trial, lieis- properly subject to challenge. XXXIII, 204 ; XXXVII, 315. Thus, that a member had originated and preferred the charge ^See G. 0. M. O. 37, Fourth Mil. Dist., 18(38. ^Compare Samuel, 034; Simmons § 434. The latter course has not unfrequently been adopted in our i)ractice. ARTICLES OF WAR. 71 for a disobedience of his own order, was held good cause of challenge. XXX YI, 257. So, in a case of a trial for an assault upon an officer, the fact that the officer upon whom the assault was committed, and who was the prosecuting wit- ness, was a member of the court, w^as held to constitute com- plete cause of challenge to him as member. XXXIII, 257. 4. That a member is the regimental or company commander of the accused does not, per se, constitute sufficient ground of challenge. But such ground may exist where the commander has i^referred the charges, or where the relations between him and the accused have been such as to give rise to a presump- tion of prejudice. VIII, 534; XXII, G31. 5. Where a member, before the trial, had expressed an oi^in- ion, based ui)on a knowledge of the facts, that the accused would be convicted whichever way he might plead, held that 'he had clearly i)rejudged the case, and that the court should have sustained an objection taken to him by the accused, although, upon being challenged, he declared that he was without prejudice.^ XXXYII, 491. [See § 12, infra.] G. A member, on being challenged for i)rejudice, declared that he did not consider the accused (an officer) a gentleman, and would not associate with him, and that he had stated so ; but he added at the same time that he was not i)rejudicedfor or against him. Held, especially as one of the charges was "conduct unbecoming an officer and a gentleman," that the challenge was imi)roperly overruled by the court. XXIY, 584. 7. It is not good ground of challenge to a member that he is junior in rank to the accused, nor is it sufficient ground that the member will gain a step or "file" in the line of pro- motion if the accused is dismissed. It is however a sufficient cause of challenge to a member, that, if the accused, (an offi- cer,) be convicted and sentenced to be dismissed, the member will be forthwith entitled to promotion. XXXIII, 137; XXXYII, 189 ; XXXYIII, 3G6, 37G. 8. Held sufficient ground of challenge to a member of a court martial, that he has previously taken part in an investi- gation of the same case before a court of inquiry, though such court did not express a formal opinion. XXIII, 406. ^ See this oiunion as adopted by the President in G. 0. M. O. Gi}, Hd(ps. of Army, 1879. 72 ARTICLES OF WAR. 9. Held good grouDd of challenge to a member oY a court martialj in a case of alleged theft by a soldier, that such mem- ber had been a member of a previous court of inquiry which had investigated the case and fixed the misai>propriation of the property upon the accused. XXXVI, 599. 10. Held that the members of a court martial who had com- posed a previous court by which the same accused had been tried for the same act though under a difterent chargCj were all subject to be set aside on challenge. XXYIII, 181. 11. A challenged member, on being j)ersonally examined as to his bias, &c., need not be put on oath. At this stage, in- deed, of the proceedings, neither the president nor judge ad- vocate is authorized to administer an oath. IX, 258; XXIV, 555. It is not necessary, (though not unusual,) for a member to withdraw from the court room on being challenged and pending the deliberation on the objection. V, 196. 12. Courts should be liberal in i^assing upon challenges, but should not entertain an objection which is not sjjecific, or allow one ui)on its mere assertion by the accused without l^roof, and in the absence of any admission on the i)art of the member.^ XXIV, 584 5 XXXVI, 578. A positive declara- tion by the challenged member to the effect that he has no prejudice or interest in the case, will, in general, in the ab- sence of material evidence in supi^ort of the objection, justify the court in overruling it. XVII, 105. 13. Where, before arraignment, the accused, (an ofiicer,) without having personal knowledge of the existence of a ground of challenge to a member, had credible hearsay in- formation of its existence, held that he should properly have raised the objection before the members were SAvorn, and that the court was not in error in refusing to allow him to take it at a subsequent stage of the trial. XLI, 411. 14. The fact that a sufficient cause of challenge exists against a member but, through ignorance of his rights, is not taken advantage of by the accused, or if asserted is improperly 1 See G. 0. M. O. 0(], War Dept., 1875. The challenge, the allowance of which by the court in Gen. Twiggs' case was dis- approved in G. O. 4, War Dept., 1858, Avas simply a gene- ral objection to the member by the accused on account of " some unpleasant circumstances growing out of their official relations ; " no specific allegation of bias being made, and the member himself expressly disclaiming any feeling of prejudice. ARTICLES OF ^YAR. 73 overruled by the court, can affect in no manner tlie validity in law of the proceedings or sentence, though it may sometimes properly furnish occasion for a disapproval of the proceedings, &c., or a remission in whole or in part of the sentence. ^ YIII, 534; IX, 258; XX, 18; XXXYll, 315, 401; XXXIX, 240. 15. The Article hnposes no limitation upon the exercise of the right of challenge other than that " more than one mem- ber shall not be challenged at a time." Thus while the i)anel, or the court as a whole, is not subject to challenge, yet all the members may be challenged provided they are challenged separately. XXYIII, G32; XXX, 3G1; XXXYIII, 53. The Article contains no authority for challenging the judge advo- cate. XXXY, G18. [See Judge Advocate § 8.J 16. The Court, of itself, cannot excuse a member, in the absence of a challenge. A member, not challenged, but con- sidering himself disqualified, can be relieved only by applica- tion to the convening authority. XXXYII, 34. NIXETY-FIRST ARTICLE. ^' The depositions of witnesses residing beyond the limits of the State, Territory, or district in wliicli any military court may be ordered to sit, if taken on reasonable notice to the opposite party and duly authenticated, may be read in evidence before such court in cases not capital." 1. A deposition cannot be read in evidence in a capital case^ — as in a case of a violation of Art. 21, or a case of a spy, or one of desertion in time of war : otherwise in a case ^ See Opinion of the Attorney General of January 10, 1878, (XY Opins. — ,) in which the opinion, exjiressed by the Judge Advocate General in the most recent of the cases upon which this paragraph is based, — that the fact that one of the cliarges upon which the accused was convicted was preferred by a member of the court who also testified as a witness on the trial, (but who, though clearly subject to objection, was not challenged by the accused,) could not affect the vahdity of the sentence of dismissal alter the same bad been duly confirmed, — is concurred in by the Attorney General. And, to a similar effect, see Keyes r. United States, 15 Ct. CI. — In G. C. M. O. 88, Dept. of Dakota, 1878, the point is noticed that where a challenge intei'posed by the accused has been improperly disallowed, a subsequent plea of guilty is not to be treated as a waiver of the advantage to which he may be entitled by reason of the improper ruling. -As to the meaning of " capital,"' see Sixty-second Ar- ticle § 1 ; ElGHTY-THIKD AllTICLE § 2. 74 ARTICLES PF WAR. of desertion in time of peace. Ill, 485 -, IX, 646 ; XXXII, 6 ; XLII, 177, 361. Xor is the deposition admissible of a witness wlio resides in the State, &c., witliin w bicU the conrt is held.' Xor, in view of the limitations of the Article, can such a deposition, or a deposition in a capital case, be introduced in evidence by either party, even if the other party waives ob- jection and consents to its admission. XLII, 361. 2. An}^ official authoiized to take depositions by the laws of the State, &c., in which the witness is examined, may take a deposition intended to be used in evidence before a military court. IX, 632. Or the deposition may be taken, by stipu- lation, by some officer of the army or other person agreed upon by the parties. 3. Where the evidence of high officers or public officials — as a department commander, or chief of a bureau of the War Department — is required before a court martial, the same, es- pecially if the court is assembled at a distant point, should be taken by deposition, if authorized under this Article. Such officers should not be required to leave their public duties to attend as witnesses, except where their dei)ositions will not be admissible, and where the case is one of si3ecial importance and their testimony is essential. VII, 5^ XLII, 177. The Secretary of War should not be required to attend as a wit- ness, or to give his deposition in a military case, where the chief of a staff corps or other officer, in whose bureau the evidence sought is matter of record, or who is personally acquainted with the facts desired to be proved, can attend or depose in his stead. XXXV, 505. [See Witness § 10, 11.] 4. The x)arty at whose instance a deposition has been taken, cannot be admitted, against the objection of the other party, to introduce only such parts of the deposition as are favora- ble to him or as he may elect to use : he uuist offer the depo- sition in evidence as a whole or not offer it at all. XXXVI, 236. 5. If the i)arty at whose instance a deposition has been taken decides not to put it in, it may be read in evidence by the other party. One party cannot withhold a deposition, (duly taken and admissible under this Article,) against the consent of the other. XXXVII, 9. ^ Xote the remarks of the reviewing authoiity in O. C. M. O. 102, I3ept. of the East, 1871 j do. 1, Division of South, 1875. ARTICLES OF WAR. 75 G. Held that the deposition of a witness residing in a for- eign country, and taken before a qualified person — as an American consul, would be admissible in evidence under this Article equall}^ with the deposition of a resident of the United States. XLII, 114. 7. Where the judge advocate offered in evidence, on the l^art of the prosecution, a deposition which proved to have been given by a person other than the one to whom the inter- rogatories were addressed, and the accused objected to its Introduction, but the objection was overruled by the court, lield error 5 the fact that the intended deponent was but the agent, in the transaction inquired about, of the person who actually furnished the deposition, not being sufficient to make such deposition admissible except by consent of parties.^ XLII, 110. NIXETY-SECOKD AETICLE. " All persons wlio give evidence before a court-martial shall be exam- ined on oath, or affirmation, in the following form : '■ You swear (or affirm) that the evidence you shall give, in the case now in hearing, shall be the truth, the whole truth, and nothing but the truth. So help you God.'" 1. This Article prescribes a single specific form of oatli to be taken by all witnesses. The Constitution, however, (Art. I of Amendments,) has x)rovided that Congress shall make no law prohibiting the free exercise of religion. AVhere, there- fore, the prescribed form is not in accordance with the relig- ious tenets of a witness, he should be pern^itted to be sworn according to the ceremonies of his own faith or as he may deem binding on his conscience.'^ XII, biS. 2. The Article does not prescribe by whom the oath shall be administered. By the custom of the service it is administered by the judge advocate. When the judge advocate himself takes the witness stand, he is properly sworn by the i>resi- dent of the court. XLII, 269. 3. A witness Avho has once been sworn and has testified, is not required to be re-sworn on being subsequently recalled to the stand by either party. The re-swearing, however, of such a witness will not affect the legal validity of the pro- ceedings or sentence. XXXII, 310. "~^See G. 0. M. O. 9, Hdqrs. of Army, 1879. 2 See 1 Greenl. Ev. § 371; O'Brien, 200. 76 ARTICLES OF WAR. NINETY-THIED AETICLE. ''A court-martial shall, for reasonable cause, grant a continuance to either party, for sucli time, and as often, as may appear to be just: Pro- vided, That if the prisoner be in close confinement, the trial shall not be delayed for a period longer than sixty days." 1. lu making au api>licatiou for a contmuance or postpone- ment nnder this Article, on account of the absence of a wit- ness, the forDi of affidavit i^rescribed in par. 887 of the Army Eegnlations shoukl in general he substantially observed. But while the court may refuse the application if this regulation be not followed, it may, in its discretion, refrain from insisting that the same be strictly com]^lied with, and accej^t a modi- fied form.^ It should however in all cases require that the desired evidence appear or be shown to be material, and not merely cumulative,^ and that to await its produfction will not delay the trial for an unreasonable period. It should also, in general, before granting the continuance, be assured that the absence of the witness is not owing to any neglect on the X^art of the applicant. This feature, however, will not be so much insisted upon in military as in civil cases.^ \'III, 662 j XXYI, 311. 2. Where ^''veasonahle ccvuseJ^ is, in the judgment of the court, exhibited, the party is entitled to some continuance under the Article.* A refusal, indeed, by the court to grant such continuance will not invalidate the proceedings, but, if ^ It is not the practice of courts martial to admit counter affidavits from the opposite party as to what the absent wit- ness would testify. And as to the civil practice, see Williams V. State, 6 Nebraska, 334. ^ Compare People v. Thomi)son, 4 Cal. 238*, Parker v. State, 55 Miss. 414. ^ A military accused can not be charged with laches in not procuring the attendance at his trial of a witness who is pre- vented from being x)resent by sui>erior military authority. Thus in a case in G. O. 03, Dept. of Dakota, 1872, an accused soldier was held entitled to a continuance till the return of material witnesses then absent on an Indian exj^edition. * It would properly be so held upon common law principles, even independently of the ])ositive terms of the Article. In Eex V. D'Eon, 1 W. Blacls:. 514, it was declared by Lord Mansfield that — "No crime is so great, no proceedings so in- stantaneous, but that, u])on sufficient grounds^ the trial may be put off." ARTICLES OF WAR. 77 tlie accused lias tlius been prejudiced in his defence, may properly constitute good ground for disapproving the sen- tence/ or for mitigating or x)artiall3' remitting the punish- ment. XXII, 502; XXXIII, GIG; XXXIX, 13. 3. Where an accused soldier, by reason of his regiment having been moved a long distance since his arrest, was sep- arated at his trial, from certain witnesses material to his de- fence, lieldj that he was entitled to a reasonable continuance for the purpose of procuring their attendance or their deposi- tions. XXI Y, 555. 4. That the charges and specifications upon which an ac- cused is arraigned differ in a material particular from those contained in the coi)y served upon him before arraignment, may well constitute a sufficient ground for granting him ad- ditional time for the preparation of his defence. XXIV, 513. [See Charge § 28.] 5. Where after arraignment a material and • substantial amendment is allowed by the court to be made by the judge advocate in a specification, the eflect of which amendment is to necessitate or make desirable a further preparation for his defence on the part of the accused, a reasonable postpone- ment for this purpose will in general properly be granted by the court. XXII, kyS. 6. It is in general good ground for a reasonable continuance, that the accused needs time to procure the assistance of coun- sel,^ if it is made to appear that such counsel can probably be obtained within the time asked, and that the accused is not chargeable with remissness in not having already' provided himself with counsel. XIII, 400. XIXETY-FOUETH AETICLE.^' "Proceedings of trials shall be carried on only between the hours of eight in the morning and three in the afternoon, excepting in cases which, in the opinion of the officer appointing the court, recpiire immediate ex- ample." 1. This Article is imperative upon the point that no pro- ceedings of trials shall be carried on before eight o'clock a. m. ^ See G. 0. M. O. 35, War Dent. 1SG7; do. 128, Hdqrs. of Army, 187G; G. O. 24, Dept. of Arizona, 1874. - See G. C. :M. O. 25, War Dept., 1875. •'' Xote the different reasons for this enactment assigned by Attorney General Speed, (XI Opins. 141,) and Coppee, (p. 50!^) And see, on this point, Hough, (Practice,) 377. 78 ARTICLES OF WAR. or after tliree o'clock i>. m., except in the class of cases specifi- cally indicated. Where, therefore, the record shows aflirma- tively that any particular material proceeding of the trial was had by the court before eight or after three o'clock, and sets forth no authority for the same from the convening officer, (such as the usual direction or i^ermission in the convening order, that the court '^will," or "may, sit without regard to hours,") such proceeding must be held unauthorized and of no legal effect.^ And if the proceeding, thus futile, was one necessary to the completeness of the trial, or otherwise im- portant, it should be repeated, or taken de novo, within legal hours. II, 123 5 VII, 433; XXIII, G27; XXXYI, 490. 2. The Article, however, does not require that the record shall show in terms that the hours indicated were observed. It is i^roper, indeed, and the best practice, to state the hour of each meeting and adjournment; but where no such entry appears in the proceedings, the same will not be invalidated, but, in the absence of evidence to the contrary, it will be presumed^ in favor of the record,^ that the court did not sit except between the prescribed hours. XXII, 635; XXIII, 627; XXX, 144. 3. The entertaining by the court, after three o'clock p. m., of a motion to adjourn would not be unauthorized, such a motion not being properly a proceeding of a trial in the sense of the Article. XXVIII, 189. NINETY-SIXTH ARTICLE. "No person shall be sentenced to sulfer death, except by the concur- rence of two-thirds of the members of a general court-martial, and in the cases herein expressly mentioned." 1. Though it has sometimes been viewed otherwise, it is deemed quite clear ui^on the terms of the present Article, ^ In some cases where the trials have, without express au- thority been commenced before 8 a. m., or continued after 3 p. m., the entire proceedings and sentences have been disap- proved as fatally defective. See G. O. 2, Dept. of the South, 1873; do. 94, liept. of the Gulf, 1864; S. O. 281, Dept. of Washington, 1861. Strictly, however, it is only the proceed- ing had during the inhibited interval tliat is unautljorized and inoi)erative, and the irregularity involved may in general be remedied as indicated in the text. ^ As to the presumption in favor of the regularity of judicial proceedings, see 1 Greenl. Ev. § 19; also Eecoed § 3, and note. ARTICLES OF VTATl. 79 that it is not necessary to the legality of a death sentence that two-thirds of the court should have concurred in the finding as well as the sentence. ^ Further, — in the absence of any requirement to that effect in the Article, — it is , not deemed essential to the validity of the sentence that the record should state the fact that two-thirds of the court con- curred therein. The practice, however, has been to add such a statement. XX, GOG. 2. A sentence of death imposed by a court-martial, upon a conviction of several distinct offences, will be authorized and legal if any one of such offences is made cai)itally jjunishable by the Articles of War, although the other offenses may not be so punishable. Ill, 253, 27G, 480. 3. A court-martial, in imposing a death sentence, should not designate a time or place for its execution, such a desig- nation not being within its province but pertaining to that of the reviewing authorit3\ If it does so designate, this part of the sentence may be disregarded, and a different time or place fixed by the commanding general. Ill, G50. 4. Wliere a death sentence imi^osed by a court-martial has been directed by the proper authority to be executed on a I)articular day, and this day, owing to some exigency of the service, has gone by without the sentence being executed, it is competent for the same authority, or his proper superior, to name another day for the purpose, the time of its execution being an immaterial element of this punishment.- Ill, GoOj V, 22. 'Compare McXaghten, 120. ^It was held by the Supreme Court in Coleman v. Ten- nessee, (7 Otto, 519-20,) that a soldier who had been convicted of murder and sentenced to death by a, general court martial ,in May, 1865, but the execution of whose sentence had been meanwhile deferred, by reason of his escape and the pend- ency of civil proceedings in his case, might at the date of the ruling, (October Teim, 1878,) "be delivered up to the military authorities of the United States, to be dealt with as recjuired by law." More recently (May, 1870, XVI Opins. — ) it has been held in this case by the Attorney-General that the death sentence might legally be executed notwithstanding the fact that the soldier had meanwhile been discharged from the service; such discharge, while formally separating the party from the army, being viewed as not affecting his legal status as a mili- 80 ARTICLES OF WAR. KINETY-SEVENTH AETIOLE. ''No person in the military service shall, under the sentence of a court martial, he punished by confinement in a penitentiary, unless the offence of which he may be convicted would, by some statute of the United States, or by some statute of the State, Territory, or District, in which such offence may bo committed, or by the common law, as the same exists in such State, Territory, or District, subject such convict to such punishment." 1. This Article, by necessary implication, proliibits the imi:)Osition of confinement in a penitentiary as a punishment for offences of a purely or exclusively military character — as desertion for example. ^ Y, 500; YII, 538; XXIII, 415; XXYIII, 12G; XXIX, 250; XXXI, 296; XXXII, 255; XXXIII, 32, 175. 2. A sentence of penitentiary confinement in a case of a purely military offence is wholly unauthorized and should be disapproved. Effect cannot be given to such a sentence by commuting it to confinement in a military jirison, or to some other punishment which would be legal for such offence. XXIY, 202; XXYII, 299; XXX, G03. Xor, in a case of such an offence, can a severer penalty — as death, be com- muted to confinement in a i^enitentiary. XI, 413. 3. Xor can i^enitentiary confinement be legalized as a pun- ishment for purely military offences by designating a peniten- tiary as a ''military prison," and ordering the confinement there of soldiers sentenced to imprisonment on conviction of such offences. XXXY, 377 ; XXXIX, 059. 4. An offence charged as "Conduct to the prejudice of good order and military discipline," which, however, is in fact a larceny,^ embezzlement, violent crime, or other offence tary convict. But, in view of all the circumstances of the case, it was recommended that the sentence be commuted to imprisonment for life or a term of years. ^ See G. O. 4, War Dept., 18G7 ; also the action taken in cases in the following General Orders : G. O. 21, Dept. of the Platte, 185G; do. 21, Id., 1871; do. 44, Eighth Army Corps, 18G2; G. C. M. O. 34, 35, 43, 4G, 72, 73, Depf. of the Missouri, i87(;. ' In a case of larceny^ the court should inform itself as to whether the value of the property stolen be not too small to permit of penitentiary confinement for the offence under the local law. See G. O. 44, Eighth Army Corps, 18G2 ; G. C. M. O. G3, Dept. of the Platte, 1872. ARTICLES OF WAK. 81 made punishable with penitentiary^ confinement by the law of the State, &c., may legally be visited with this punish- ment. IX, 281. 5. The term '^ penitentiary," as employed in this Article, has reference to civil prisons only — as the penitentiary of the Unit( d States or District of Columbia at Washington, the l^ublic prisons or penitentiories of the different States, and the penitentiaries '^ erected by the United States," (see Sec. 1892, Kev. Sts.,) in most of the Territories. The military prison at Leavenworth is not a penitentiary in the sense of the Article. XLI, 518. The term State or State's prison in a sentence is equivalent to penitentiary. IX, 00. 6. A military prisoner duly sentenced or committed to a penitentiary, becomes subject to the government and rules of the institution. XXIX, 20G. 7. Where a soldier is sentenced to be confined in a peni- tentiary, the proper reviewing authority may legally desig- nate for the execution of the punishment, any State or Territorial penitentiary Avithin his command. XXYIII, 52. Where there is no such i^enitentiary available for the pur- pose, or desirable to be resorted to, he will i^roperly submit the case to the Secretary of War for the designation of a proper penitentiary. XXVI, G72; XXYIII, 0. 8. A court martial, in imposing by its sentence the punish- ment of confinement in a penitentiary, is not required to follow the statute of the United States or of the State, «S:c., as to the term of the confinement. It may adjudge, at its discretion, a less or a greater term than that affixed by such statute to the particular off'ence. At the same time the court will often do well to consult the statute, as indicating a rea- sonable measure of punishment for the offence. XXVIII, 217. 0. Where a court-martial specifically sentences an accused to confinement in a "military prison," he cannot legally be committed to a penitentiarj^, although such form of imi)rison- ment would be authorized by the character of his offence. XXIX,' 250. But where a sentence of confinement is ex- pressed in general terms, as where it directs that the accused shall be confined 'in such place or prison as the proper authority may order,' or in terms to such effect, held that the same may, under this Article, legally be executed by the 6d 82 ARTICLES OF WAR. commitment of tlie party to a 'penitentiary^ to be designated by tlie reviewing officer or Secretary of War, i^rovided of course the offence is of such a nature as to warrant this form of punishment. XLI, 004^ XLII, 218. NINETY-OTNTH AETICLE. "No officer sliall be discliarged or dismissed from the service, except by order of tlie President, or by sentence of a general court-martial ; and in time of peace no officer shall be dismissed, except in pursuance of the sentence of a court martial* or in mitigation thereof." See dismissal, I, II. ONE HUNDREDTH ARTICLE. "When an officer is dismissed from the service for cowardice or fraud, the sentence shall further direct that the crime, punishment, name, and place of abode of the delinquent shall be published in the newspapers in and about the camp, and in the State from which the offender came, or where he usually resides; and after such publication it shall be scandal- ous for an officer to associate with him." 1. The terms '''-cowardice'''^ and '^/mif(^," employed in this Article, may be considered as referring mainly to the offences made punishable by Articles 42 and GO. With these, however, may be regarded as included all offences in which fraud or cowardice is necessarily involved^ though the same be not ex- pressed in terms in the charge or specification. XI, 671. 2. Though the injunction of the Article, as to the direction to be added in the sentence, should of course regularly be complied with, a failure so to comx)ly will not affect the valid- ity of the punishment of dismissal adjudged by the sentence.^ The declaration of the Article, that after the publication, "it shall be scandalous for an officer to associate with" the dis- missed officer, though it has in a few cases^ been incorporated in the sentence, is not intended to be, and should not be, so expressed by the Court. XXII, 508 ; XXVII, 052. OXE HUNDRED AXD FIRST ARTICLE. "When a court martial suspends an officer from command, it may also suspend his pay and emoluments for the same time, according to the nature of his ofience." See suspension. ^ Note the action taken in the case published in G. C. M. O. 27, War Dept. 1872. 2 As in cases published in G. O., (A. &. I. G. O.,) of May 13, 1820 J do. 108, Dept. of the Missouri, 1805. ARTICLES OF WAR. 83 OKE HimDEED AND SECOND xVETICLE. "Xo person shall be tried a second time for the Kame ofifence." The Constitutiou, (Art. Y of tlie Amendments,) declares that "no person shall be subjected, for the same offence, to be twice put m jeopardy of life or limb." The U. S. Courts, in treating the term " put in jeoi)ardy " as meaning i^ractically tried, hold that the "jeopardy" indicated " can be interpreted to mean nothing short of the acquittal or conviction of the prisoner and the judgment of the court thereon.^ So, held that the term " tried," emi^loyed in this Article, meant duly prosecuted, before a court-martial, to a final conviction or acquit- tal; and, therefore, that an officer or soldier, after having been duly convicted or acquitted by sucli a court, could not be subjected to a second military trial for the same offence, except by and upon his own waiver and consent. For, that the accused may tvaive objection to a second trial was held by Attorney-General Wirt in 1818,- and has since been re- garded as settled law. Y, 272 ; YI, 02 ; YIII, 37. [See New Trial.] 2. Where an officer or soldier has been duly acquitted or convicted of a specific offence, he cannot, against his consent, be brought to trial for a minor offence included therein, and an acquittal or conviction of w^hich was necessarily involved in the finding upon the original charge. [See Desertion § 18 ', Findings § 8.] Thus a party convicted or acquitted of a desertion cannot afterwards be brought to trial for an absence without leave committed in and by the same act. XXX, 386, 039. 3. Held that there was no "second" trial, in the sense of the Article, in the following cases : Where the party, after being arraigned or tried before a court which was illegally constituted or composed, or w^as without jurisdiction, was again brought to trial before a competent tribunal. IX, 201 j XYIII, 211; XXYIII, OS: Where the accused, having been arraigned n\)Oii and having pleaded to certain charges, was re-arraigned upon a new set of charges substituted for the ^United States v. Haskell, 1 Wash. C. C. 409. And see United States r. Shoemaker, 2 McLean, 111; United States v. Gibert, 2 Sumner, 19 ; United States v. Perez, 9 Wheaton, 579 ; I Opins. of Attvs. Gen. 291. 2 1 Opins. of Attys. Gen. 233. And see also YI Id. 205. 84 ARTIGILES OF WAR. otliers which were withdrawn. XIX, 222: Where one of several distinct charges upon which the accused had been arraigned was withdrawn pending the trial, and the ac- cused, after a trial and finding by the court upon the other charges, was brought to trial anew upon the charge thus withdrawn. Y. 213 : Where, after proceedings commenced but discontinued without a finding, the accused was brought to trial anew upon the same charge. Y, 192 : Where, after having been acquitted or convicted ui^on a certain charge which did not in fact state the real offence committed, the accused was brought to trial for the same act but upon a charge setting forth the true offence. XXY, 670 -, XXYII, 60-1: Where the accused was brought to trial after having had his case fully investigated by a different court, which how- ever failed to agree in a finding and was consequently dis- solved.^ XXY, 73: Where the first court was dissolved because reduced below five members by the casualities of the service pending the trial. YI, 62 : Where, for any cause, there was a ^' mis-trial," or the trial first entered upon was termi- nated at any stage of the proceedings before a final acquittal or conviction. Y, 192. 4. Where an officer or soldier, having been acquitted or convicted of a criminal offence by a civil court, is brought to trial by a court-martial for a military offence involved in his criminal act, he cannot plead a ''former irial," in the sense of this Article. So where the trial for the military offence has preceded, he cannot plead autrefois acquit or convict to an indictment for the civil crime committed in and by the same act.2 Y, 140. [See Court Martial, II § 12.] 5. But where the accused has been once duly convicted or acquitted, he has been '' tried " in the sense of the Article, and cannot be tried again, against his will, though no action whatever be taken upon the proceedings by the reviewing authority, XXXI, 300 ; or, though the i^roceedings, findings, (and sentence, if any,) be wholly disapproved by him.^ IX, 611 J XXYII, 348 J XXXYIII, 38. ^See United States ?;. Perez, 9 Wheat., 579. ^ See YI Opins. of Attys. Gen., 413, 506, and other authori- ties cited in note to Court-Martial, II § 12. HJompare Macomb, § 159 j O'Brien, 277 j Eules for Bombay Army, 45. ARTICLES OF WAR. 85 G. That an accused lias been, in the opinion of the review- ing anthorit}^, inadequately sentenced,, either by a general or an inferior conrt, cannot except his case from the application of this Article: though insufiaciently punished, he cannot be tried again lor the saDie offence. YII, 17 j XXVIII, 69. ONE HUNDRED AND THIRD ARTICLE. *'No person shall be liable to be tried and punislied by a general court- martial for any offence wliicli appears to have been committed more than two years before the issuing of the order for such trial, unless, by reason of having absented himself, or of some other manifest imijediment, he shall not have been amenable to justice within that period." 1. It has repeatedly been held by the Judge Advocate Gen- eral that the limitation prescribed by this Article api^lied alike to all prosecutions, including those for desertion equally with those for other military offences. In the absence of any authoritative interpretation of the Article, it was further held by him that in cases of desertion the i^eriod of limitation began to run from the day on which the deserter absented himself without authority.^ ^ That the Article applies to and includes cases of desertion^ though questioned by some military authorities, has been uniformly held by the Attorney General. See XIII Opins. of Attvs. Gen. 402; XIY Id. 265; Opinions of September 1, 1876, (XV Opins. — ,) and October 16, 1878, (XVI .Opins. — .) In the latter opinions, however, it was held that the i)eriod of the limitation in such cases — desertion being regarded as a continuing offence — began to run, not from the date of the commission of the offence, but from that of the end of the term for which the soldier had enlisted, (or, if he was appre- iieuded or surrencl^red himself prior to that time, from the date of the arrest or surrender.) The construction of the Article, in which the Attorney General and Judge Advocate General unite, that the offence of desertion is not intended to be excepted from its provisions, is certainly, as it is expressed by the latter in his official re- port to the Secretary of War, of Oct. 10, 1877, in accord with " the enlightened spirit of modern criminal codes. It is," con- tinues that ofdcer, '' a general principle of all these codes that the State shall prosecute offenders within a reasonable time, or be barred therefrom ; that to hold at will over the party the menace of punishment, keeping him constantly in sus- pense without proceeding to briug him to justice or afford him the opportunity of a judicial exculpation, is contrary- to public policy, unworthy the dignit}' of the Government and cruel." But in view of the doubt that has sometimes been enter- 86 ARTICLES OF WAR. 2. Uuder tliis Article it lias also been held by tlie Judge Advocate General, in a great number of cases, that mere absence alone is not an '^ impediment," in the sense of the Article, and that a mere general averment in the specification to the effect that because of his absence the party has not been amenable to justice duriug the interval, is a wholly in- sufficient allegation of an imi)ediment j further, that absence, to constitute an imi)ediment, must be such an absence as ren- ders it impracticable for the military authorities, by the use of due and reasonable diligence, to bring the offender to jus- tice during the prescribed period^ — as, for example, an absence ill a foreign country and therefore beyond the jurisdiction of a court-martial j that the facts constituting the imiiediment must be specifically set forth in the specification, a general averment not being sufficient, and must be proved as laid j and further that where it appears from the specification, or from the evidence, that more than two years have elapsed between the date of the commission of the alleged offence and that of the ^' issuing of the order'' for the trial, and it is not j) roved by the United States that, by reason of some manifest imj)ediment the party has not been '^ amenable to justice within that pe- riod," the proceedings and sentence must be held void and inoperative, even if the accused has pleaded (juilty^ such a plea not availing to give the court jurisdiction.^ That the limitation cannot be waived by the accused, see § 8, infra. 3. The following have been held to be ''manifest impedi- tained as to the proper interpretion of the Article, and in order that our military code shall be placed unmistakeably in harmony with the principle thus indicated, the Judge Ad- vocate General has heretofore recommended an amendment of the Article which should remove any possible question as to its application to cases of desertion, while at the same time extending and defining the limitation of prosecutions for that offence. This recommendation, having been approved by the Secretary of War, has been favorably acted upon by the Senate, which has twice passed a bill amending the 103d Arti- cle in the manner x)roposed and fixing the iieriod of limitation in the case of desertion at three years. Such a bill is now pending for final action in the House of Representatives, having been favorably reported for passage by the Military Committee. ^ See to a similar effect, the opinions of the Attorney Gen- eral of Sei)tember 1, 1870, and October 10, 1878, noted supra. ^ Similarly held by the Attorney General in his opinion of Oct. 10, 1878, noted mpra. ARTICLES OF WAR. 87 meiits" in the sense of the Article : — Absence from the United States as a fngitive from civil justice. XXXI, 27 : Absence from the United States originally by authority but protracted by reason of detention by the authorities of the country of which the soklier was a native. XXXVII, 576 : Any absence from the United States during such a proportion of the in- terval since the commission of the offence as to leave less than two years during which the party was in this country and amenable to justice. XXXVII, 479: Arrest and con-, finement by the civil authorities of the United States, or of a State, &c., under a charge or upon a conviction of a civil offence, where the party has not been discharged from such confinement within two years x)rior to the order convening the court-martial. XXXIV, 158; XXXVII, 590: Detention as a prisoner of war or in the compulsory service of the enemy during the interval, (a brief period only excepted,) of the absence. XXIII, 18. 4. In the following cases it was held that no impediment had existed : — Where the soldier, subsequently to his desertion, re-enlisted under a different name, in another regiment, and was thus, (within two years,) manifestly within reach of the military authorities and amenable to justice.^ XXXVI, 553 : Where, under similar circumstances, the party enlisted in the U. S. marine corps and thus came within the immediate con- trol and reach of the authorities.^ XXXV, 511 : Where a soldier, though arrested by the civil authorities for a civil offence, was not in fact held by them but, in the absence of a convenient civil prison, was left in military charge and cus- tody at a military post, with the assent of the commander, for more than two years. XLII, 183. 5. The mere fact that the offence was concealed by the accused and remained unknown to the military authorities for more than two years, constitutes no "impediment" in the sense of the Article.^ XXI, GSij. 6. A mere allegation in a specification, to the effect that the whereabouts of the offender was unknown to the military authorities during the interval of more than two years which * See the like case of Harris, in XIV Opins. of Attys. Gen., 265. - See this opinion as adopted by the Secretary of War in G. C. M. O. 63, War Dept., 1874. 3 XIV Opins. of Attys. Gen., 52, 266-8. 8S ARTICLES OF WAR. had elapsed since the offence, is not a good averment of a " manifest impediment " in the sense of the Article. XXXY, 640. 7. An officer or soldier cannot of course legally be arrested with a view to trial, where more than two years, (within which he has been amenable to justice,) have elapsed since his offence. XLII, 130. 8. The ruling of Attorney General Wirt, in 1820,^ that where the limitation prescribed by this Article has once duly taken effect, an accused party cannot waive it, or legally be brought to trial though desiring and applying for a trial, has been held applicable in repeated cases by the Judge Advocate General, and has been invariably followed in our practice. XXVIII, 34 ; XLII, 213. 9. The liability to trial after discharge, imposed by the last clause of Art. 60, held subject to the limitation i^rescribed in Art 103.' XII, 481, 536 -, XY, 133 ; XXI, 4 -, XXVI, 670. And so held as to the liability to trial after the expiration of the term of enlistment, under Art. 48.^ XXXI, 384. 10. The'i^rohibition of the Article relates only to i)rosecu- tions before general courts martial: it does not apply to trials by inferior courts. So, courts of inquiry may be con- vened without regard to the i^eriod which has elaxjsed since the date or dates of the act or acts to be investigated.* XLII, 213. Xor does the rule of limitation ap^dy to the hearing of cojnplaints by regimental courts under Art 30. XXXI, 452. [But see Thirtieth Article § 2.J 1 1 Opins. 383, affirmed by Atty. Gen. Gushing in VI Opins. 239. The ground of the ruling was that the provision of the Article was intended, not merely for the benefit of the accused, but to ensure the prompt prosecution of offences Avith a view to the better security and maintenance of military discii)line, and being thus based upon considerations of xjiiblic policy, its operation could not be waived by an accusecl i)arty in his own case. Xote, in this connection, the opposite ruling of the same authoi'ity, in regard to the waiver of objection to a second trial, cited under One Hundred and second Article § 1. '-^XIV Opins. of Attys. Gen. 52. ^See, to a similar effect, XIII Ojuns. of Attys. Gen. 462, and Oi^ins. of Sei)t ember 1, 1876, and October 16, 1878, noted siipra ; also In re Bird, 2 Sawyer, oo. * See VI Opins. of Attys. Gen., 239. ARTICLES OF WAR. 89 o:n^e hundred and fourth article. "No sentence of a court-martial shall Ije carried iuto execution until the whole proceedings shall have been approved by the officer ordering the court, or by the officer commanding for the time being." 1. This provision, taken from the old G5th Article, is, in its .present form, inaccurately expressed. It is rarely necessary that tlie entire proceedings of a court should be approved to give eii'ect to the sentence. The term "whole proceedings" is thus construed as meaning the material proceedings, i. e., the i)roceedings necessary to the validity of the sentence or such part of it as is api^roved. XXXIX, 2(35; XL, 77; XLIII, 14. 2. This Article is properly to be complied with by an ap- l)roval of the proceedings, (where the same are approved in fact,) by " the officer ordering the court," «&c., although — as in a case of a sentence of dismissal in time of peace — he may not be emi)owered finally to confirm and give effect to the sentence. His approval is required as showing that he does not, as he is authorized to do, disapprove. IX, 15 ; XXIII, 451. [See Reviewing Aithoeity § 2.] 3. The approval of the proceedings indicated by this Arti- cle should properly be of 2i formal character. An endorse- ment, signed by the commander, of the single word " Ap- I)roved," — a form not unfrequently employed during the late war, — though, strictly, sufficient in law, (XXVI, 511,) is irregular and objectionable. So, held that a mere statement, written in or uj^on the proceedings, in transmitting them to the President, that the record was '' forwarded '' for the action of superior authority, was insufficient as not imi:>lying the requisite approval according to the Article. II, 99 ; VII, 476. And similarly licJd of a mere recommendation that the pro- ceedings be api)roved by such authority. IX, 50, 54. [See Reviewing Authority § 2.] 4. Held that a department commander, while detciched and absent for any considerable period, on leave of absence, or under orders, fi'om his department and command, was not authorized to approve, &c., the i^roceedings of a general court martial previously convened by him while dulj' exercising his command ; but that the same could legally be approved only by an officer duly assigned or acting as dei)artment com- mander "for the time being," or by the original commander 90 • ARTICLES OF WAR. liimself upon bis returning to the department and re-assum- ing the command. XXXIX, 328, 35G 5 XL, 78 ; XLI, 157 ; XLII, 272.1 [See Seventy-second Article § 5.] 5. Held that a department commander could not legally depute a staff or other officer to act for him, while absent from his headquarters on an expedition against Indians, in approving, &c., the x^roceedings of courts-martial previously duly convened by him. XXXVII, 429. G. The ''officer commanding for the time being," indicated in this Article, is an officer who has permanently or temi)o- raiily succeeded to the command of the officer who convened the court ; as where the latter has been regularly relieved and another officer assigned to the command ; or where, by reason of the temporary absence of the regular commander, the command has devolved ux)on the next senior officer 5 or where the command of the convening officer has been discon- tinued, and merged in a larger or other command, at some time before the proceedings of the court are completed and require to be acted upon. Thus, where, under these circumstances, a separate brigade has ceased to exist as a distinctive organ- ization and been merged in a division, or a division has been similarly merged in an army or department, the commander of the division in the one case and of the army or department in the other, is " the officer comnmnding for the time being," in the sense of the Article. YIII, G33; IX, G2I5 XIII, 298 5 XX, 153, 191. So where, before the proceedings of a garrison court convened by a post commander were comi^leted, the post command had ceased to exist, and the command become distributed in the department, held that the department com- mander, as the legal successor of the post commander, was the proper authority to ai)prove the i^roceedings under this Article. XLII, 48. 7. Where a dei)artment command was discontinued, with- out being transferred to or included in any other specific command, held that the General in command of the Army was " the officer commanding for the time being," and the IDroper authority to act, under this Article and the 109th, upon the proceedings and sentence of a court which had been ordered by the dei)artment commander but whose judgment had not been completed at the time of the discontinuance of the command. XXXII, 49G. " » See G. C. M. O. 26, Hdqrs. of Army, 1878. ARTICLES OF WAR. 91 8. Unlike Art. 72, wliicli, iu designating what officers shall be authorized to order general conrts-martial, specifies that they shall be general officers, neither Art. 104 nor Art. 109 X)rescribes that "the officer commanding for the time being '^ shall be an officer of any i^articular rank. So held that a colonel assigned to command a department during the tempo- rary absence of the general commanding, though he would not be authorized to convene general courts, was legally author- ized to act upon and ai:)prove the proceedings of such courts previously assembled by the general, and to order the execu- tion of their sentences. XXXVIII, 15G. ONE HUNDEED AND SIXTH AETICLE. '' In time of peace no sentence of a conrt-martial directing the dismissal of an officer, shall be carried into execntion, until it shall have been con- firmed by the President." 1. The word " ai^proved," employed by the President in passing upon a sentence of dismissal, held to be substantially equivalent to " confirmed," the word used in the Article. In practice the two words are used indifferently in this connec- tion. XLI, 12. 2. The Article does not require that the confirmation of the sentence shall be signed by the President, nor does it pre- scribe any form in which the confirmation shall be declared. Eeld^ tlierefore, that a written approval of a sentence of dis- missal authenticated by the signature of the Secretary of War or exiDressed to be by his order, was a sufficient con- firmation within the Article ; the case being deemed to be governed by the well-established principle that where, to give effect to an executive proceeding, the personal signature of the President is not made essential by law, that of the head of the department to which the subject belongs shall be sufll- cient for the purpose j the assent of the President to his order or direction being presumed, and his act being deemed in law the act of the President whom he represents.^ IX, 44; ^ This view has been sustained by an opinion of the Attor- ney General of June 0, 1877, (XV Opins., — ,) and by a Eeport of the Judiciary Committee of the Senate of March 3, 1879, — Eep. Xo. 808, 45th Cong., od Ses. [From this report, indeed, two members of the Committee dissented in a subsequent report of April 7, 1879,— Mis. Doc. Xo. 21, 4Gth Cong. 1st Ses.] All official confirmations, however, of sentences of dis- 02 ARTICLES OF WAR. XXIII, G54; XXXYII, G50; XXXVIII, 107, 243; XXXIX, 296; XLI, 25; XLII, 209; XLIII, 106. [See Secretary of War.] OXE HUNDRED AND XIXTH ARTICLE. ''All sentences of a court-martial may be confirmed and carried into execution by the officer ordering the court, or by the officer commanding for the time being, where confirmation by the President, or by the com- manding general in the field, or commander of the dej^artment, is not required by these articles." See one HUNDRED AND FOURTH ARTICLE, ^ 7, 8. ONE HUNDRED AND ELEVENTH ARTICLE. ''Any officer who has authority to carry into execution the sentence of death, or of dismissal of an officer, may suspend the same until the pleasure of the President shall be known; and in such case, he shall immediately transmit to the President a copy of the order of suspension, together with a copy of the proceedings of the court." 1. All officer suspending the execution of a sentence for the action of the President under this Article should first formally approve the same. Simply to forward the proceed- ings stating that the sentence has been suspended, is incom- jilete and irregular. lY, 337; IX, 15. If the commander disapproves the sentence, he cannot of course suspend and transmit under this Article, since there remains nothing for the President to act upon. II, 50. 2. Where a case is submitted to the President for his action under this Article, he may approve or disapprove the sentence in whole or in part, and, if ai)i)roving, may exercise the power of remission or mitigation. Ill, 402 ,• YII, 594. ONE HUNDRED AND TWELFTH ARTICLE. " Every officer who is authorized to order a general court-martial shall have power to pardon or mitigate any x^unishment adjudged by it, except missal, approved by the present President, have been for- mally signed by him in person — a proceeding which, while importiug an api>ropriate gravity and solemnity, certainly conforms most strictly to the iiijunction of the Article. In a recent opinion of the Attorney General of April 1, 1879, (XVI Opins., — ,) it has been held that a confirmation of a sentence of dismissal of an officer, though irregidarly and unduly authenticated, would be ratified by an ai)])ointment by the President of another officer to fill the supposed vjicaucy, and that the appointment thus made w^ould be valid and oi)erative. ARTICLES OF WAR. 93 tlie pnni.slim?iit of deatli or of dismissal of an officer. Every officer com- maiidiug a regiment or garrison in which a regimental or garrison court- martial may be held, shall have power to pardon or mitigate any punish- ment which such court may adjudge." 1. The power to reuiit or commute, (see § 5, infra,) sentences of death and dismissal is reserved by this Article for the President. A mil itary commander cannot exercise such power, even where, in time of war, he is authorized to approve and execute the sentence. He may then, however, if lie thinks that the sentence should be remitted or commuted, suspend its execution for the action of the President, (with a recom- mendation to clemency,) under the preceding Article.^ II, 07. 2. A military commander vested with the i^ower of i)ardou or mitigation under this Article is not authorized to delegate the same to an inferior. Thus lield that a department com- mander could not legally authorize a i^ost commander to remit in part, upon good behavior, the punishment of a soldier under sentence at the post of the latter, who had been con- victed by a general court, convened, and whose proceedings had been acted upon, by the former. XXXIII, 119. 3. A x)nnishment cannot be pardoned or mitigated under this Article where it has been once duly executed. [See Pardon § 1.] Where, however, a sentence has been executed only in part, it may be remitted as to the portion remaining unexecuted. II, 29. 4. The pardoning power here given is not limited in its exercise to the moment of the approving of the sentence, but may be emi^loyed as long as there remains any material for its exercise. Under this Article, as interpreted by the usage of the service, a department, (or army,) commander may remit at any time, in his discretion, for any cause deemed by him to be sufficient, the unexecuted portion of the sentence of any soldier confined in his command under a sentence imposed by a court-martial convened by him or by a predecessor in the command. Y, 71; VI, 35 ; VIII, 582 ; XXI, 49 ; XXIII, 286; XXVI, 403; XXVII, 243. [See Pardon § 4, note.] At present, however, when the great mass of military convicts is confined at the Leavenworth prison, (or at Alcatraz Island,) this authority is much less frequently exercised than during the late war; the greater i)art of the remissions of sentences ' See VI Opins. of Attys. Gen. 124-5. 94 ARTICLES OF WAR. being now made by tlie President in orders from the War Department. [As to the effect of remission as distingnished from full pardon, see Pardon § 2 ; Eemission.] 5. The power to ^'pardon" conferred by this Article in- cludes the i)ower to commute^ commutation being a form of conditional jmrdon.^ A punishment which is of such a nature that it cannot be reduced in degree, i. e., mitigated^ must, where deemed too severe, be commuted^ i. e., exchanged for a different penalty of less severity, appropriate to the status of the offender. Death is such a i)unishment, and so is dismissal. Death may be commuted to dismissal, imprisonment, &c. : for dismissal, a suspension from rank and pay for a certain term is the most appropriate commutation. XXI, 215, 484. 6. Mitigation, unlike commutation, is not an exercise of the pardoning i^ower, but a separate function incident to the power vested in the reviewing authority to act upon, approve and execute the sentence.- In approving the punishment adjudged by the court and ordering its enforcement, he is authorized, if he deems it too severe, to graduate it to the proper measure by reducing it in quantity or quality, without changing its species: this is mitigation.^^ XXXYII, 22; XLI, 518. Im- prisonment, fine, forfeiture of pay, and suspension, are pun- ishments capable of mitigation. As a.n instance of a mitiga- tion both in quantity and quality, lield that a sentence of im- prisonment for three years in a penitentiary was mitigableto an imprisonment for two years in a military prison. XLI, 518. 7. Held that it was not a due exercise of the power given by this Article, but irregular and unauthorized, for a post commander to suspend the execution of the sentence of a gar- rison court convened by him, during good behavior on the part of the soldiers sentenced. XXX, 115. ^ Compare Ex parte Wells, 18 Howard, 307 5 Opinion of Just- ices, 14 Mass., 472 ; Perkins v. Stevens, 24 Pick., 278 ; Lee v, Murpliy, 22 Grat., 789; Y 0])ius. of Attys. Gen., 3G9. ^Compare II Opins. of Attys. Gen., 289. ^See opinion of Judge Advocate General published in G. O. 71, War Department, 1875; I Opins. of Attys. Gen., 327; lY Id., 444. [It may be noted that these-oarly opinions of the Attorney-Cienerai inaccurately describe the substitution of a lesser i)unishment for a death sentence^ as a mitigation; the proceeding being j)roperly commutation. See § 5, su;pra.\ ARTICLES OF WAR. 95 ONE HUIs^DEED AND rOURTEENTH AETICLE. "Eveiy party tried by a general court-martial shall, upou (lemaiid thereof, made by himself or by any person in his behalf, be entitled to a copy of the proceedings and sentence of such court." 1. A copy of the proceedings and sentence cannot properly be furnished under this Article 1 ill the same have been finally acted upon and such action has been promulgated in the usual manner. XIX, 024 ; XXI, 380. 2. A person applying for the copy, "in behalf" of the accused, should exhibit some satisfactory evidence that he duly represents the accused, as his agent, attorney, or other- wise. Where it does not satisfactorily appear that the party is applying for and on behalf of the accused, he cannot be furnished with the copy, as of right, under the Article. A person other than the accused, applying on his own account, is not entitled to the copy. Ill, 400 ; XIX, 318 ; XXI, 12 ; XXXI, 499 5 XXXYII, 100. The fact that the applicant is a member of the family of the accused does not entitle him to the copy in the absence of evidence that he apj)lies at the instance or in behalf of the accused. Ill, 348. A party applying in behalf of "friends and creditors" of the accused, held not entitled to a copy of the record of his trial. XXI, 583. So held of one who subscribed his apj)lication merely as " attorney at law," without showing that he was author- ized to act for the accused. XIX, 450. 3. Ai^plicatious for copies under this Article may be, and in practice commonly are, addressed in the first instance to the Judge Advocate General, who thereui)on furnishes the copy, certified hy him as correct, at the expense of tbe United States, i)rovided the application is made by the accused or in his behalf. If not, he can furnish the copy only by the special authority of the Secretary of AYar. Any jierson desir- ing a copy of the record of a court-martial, or of any portion of a record, who is not entitled to be furnished with the same by the terms of this Article, should apply therefor to the Sec- retary of War, stating the reason for his application, in order that it may api>ear that he makes the same in good faith and for a proper purpose. [See Official Papers.] If the application is approved by the Secretary, it will be referred to the Judge Advocate General, who will then have the copy 96 ARTICLES OF WAR. prepared and transmitted. XIX, G35; XXV, 52G; XXXI, 499 5 XXXVII, 106. 4. Tbe accused or other person entitled under this Article to be furnished with a copy of a record of trial, is not enti- tled to be furnished with a copy of a report of the Judge Advocate General made u^^on the case. To receive this, spe- cial authority must be obtained from the Secretary of War. XIX, 657. 5. The furnishing of a copy of a record of a general court martial to a person other than the accused and not api)lying in his behalf, will, as a general rule, be authorized by the Secretary of War, where the application is evidently made in the interest of justice and the coi)y furnished will clearly subserve a good and desirable purpose. XXI, 336. 6. It is only a party "tried by a general court-martial" who is entitled by the Article to the copy. Parties desiring copies of records of courts of inquiry^ for use in evidence under Art. 121, or for other puri)ose, must apply to the Sec- retary of War, as indicated in § 3, supra. I, 427. OXE HUXDEED AXD FIFTEENTH ARTICLE. ''A court of inquiry, to examine into the nature of any transaction of, or accusation or imputation ngainst, any officer or soldier, may be ordered by the President or by anj-- commanding officer; but, as courts of inquiry may l)e perverted to dishonorable purposes, and may be employed, in the hands of weak and envious commandants, as engines for the destruction of military merit, they shall never be ordered by any commanding officer excei)t ujion a demand by the officer or soldier whose conduct is to be inquired of." 1. This article authorizes the institution of a court of in- quiry^ only in a case of an "ofQcer or soldier," and the word " olncer," as employed in the Articles, is defined, by Sec. 1342, Rev. Sts., to mean commissioned officer. A court of inquiry ^ A court of inquiry is not a court in the legal sense of the term, but rather a council, commission, or board of investiga- tion. It does not administer justice ; no plea or specific issue is presented to it for trial ; its proceedings are not a trial of guilt or innocence ; it does not come to a verdict or pass a sentence. For i:)urposes of investigation, however, a court of inquiry in this country is clothed with am];le powers, and, in an imjiortant case, its opinion may be scarcely less significant and even final than that of a military court iJroi)er, that is to say a court martial. ARTICLES OF WAR. 97 cannot therefore be convened on the application, or in a case, of a person who is not an ofiicer (or soldier) of the army at the time. Snch a conrt cannot be ordered to investigate transactions of, or charges against, a party who, by dis- missal, discharge, resignation, «&c., has become separated from the military service, althongh snch transactions, or charges, relate altogether to his acts or conduct while in the army. I, 305, 402; XIX, 71 j XXVII, 001; XXXIX, GIO; XLI, 2G3. A court of inquiry cannot be ordered in a case of an ''acting assistant surgeon," who is not an officer of the army but only a civil employee. XXXVIII, 210. 2. A court of inquiry should not in general be ordered by an inferior — post or regimental — commander, where the charges required to be investigated are not such as an inferior court-martial could legally take cognizance of. Courts of inquiry convened hy such commanders are, however, of rare occurrence in our service. XXXII, 1G3 ; XXXY, 502. 3. Though a court of inquiry has sometimes been compared to a grand jury, there is little substantial resemblance between the two bodies. The accused appears and examines witnesses before snch a court as ireely as before a court-martial, (see xYrt. 118,) and its proceedings are not required to be secret but may be open at the discretion of the court. XXVIII, 580. 1. Although neither Art. 88, or other i^rovision of the code, specifically authorizes the challenging of the members of a court of inquirj^, yet, in the interests of justice and by the nsage of the service in this country, this proceeding is per- mitted in the same manner as before courts-martial. Art. 117 requires that members of courts of inquiry shall be sworn '^ well and truly to examine and inquire, according to the evi- dence, without partiality, prejudice," &c. ; and it is the sense of the service that their competency so to do should be liable to be tried by the same tests as in a case of a court-martial.^ XXVII, 601. ' See Macomb § 204 ; O'Brien, 292 •, De Hart, 278. In the Joint Eesolution of Congress, of Feb. 13, 1874, authorizing the Presi- dent to convene a certain special court of inquiry, it was "pro- vided that the accused may be allowed the same right of chal- lenge as allowed by law in trials by court-martial." It appears, however, to have been regarded in the debate on this Eesolu- tion, (See Cong. Rec, vol. 2, Xos. SS, 40,) that this provision was unnecessary to entitle the party to the privilege. ' 7 D 98 ARTICLES OF WAR. 5. A court of inquiry has uo power to punisli as for a con- temi)t. Such power of this nature as is conferred by Art. SG is restricted in terms to courts-martial. Moreover a court of inquiry, not being in a proper sense a court, cannot exer- cise the strictly judicial function of punishing contempts.^ XXXII, 405. ONE HUXDEED AND XIXETEEXTH AETIOLE. ''A court of inqTiiry shall not give an opinion on the merits of the case inquired of unless specially ordered to do so." 1. An opinion given by a court of inquiry is not in the nature of a sentence or adjudication i)ronounced upon a trial. The accused, upon a subsequent trial, by court martial, of charges investigated by a court of inquiry, cannot plead the jiroceed- ings or opinion of the latter as a former trial, acquittal, or conviction. XYI, 389 -, XXIX, 98. 2. While it is of course desirable that the members of a court of inquiry, directed to express an opinion, should con- cur in their conclusions, they are not required to do so by law or regulation.^ The majority does not govern the minority as in the case of a finding or sentence by court-mar- tial. If a member or a minority of members cannot consci- entiously and without a weak yielding of independent con- victions agree with the majority, it is better that such member or members should formally disagree and present a ^A loose observation of Hough, (Authorities, 10,) that " contemi)ts before courts of inquiry are as much punishable as before courts-martial," has been carelessly repeated by several American writers. The recent English writer, Clode, correctly states the law (as to witnesses,) in saying, (Mil. and Mar. Law, 198,) that a court of inquiry " has no power to pun- ish them for contumacy or silence." ^In the case of the court of inquiry, (composed of seven general officers,) on the Cintra Convention, in 1808, the mem- bers who dissented from the majority were required by the convening authority to put on record their oi)inions, and three dissenting opinions were accordingly given. A further in- stance, in which two of the five members of the court gave each a separate dissenting opinion, is cited by Ilough, Prece- dents, 042. Mainly upon the authority of the former case, both Hough, (Precedents, 042,) and Simmons, (§ 339,) hold that members non-concurring with the majority are entitled to have their opinions reported in the record. ARTICLES OF WAR. 99 separate report (or reports) accordiDgly. The very disagree- ment indeed of intelligent minds is a material and important fact in the case, and one of which the reviewing authority is entitled to have the advantage in his consideration of and action upon the same. XLI, 207. 3. Where, as in the majority of cases, the inquiry is insti- tuted with a view of assisting the determination by the Presi- dent, or a military commander, of the question whether the party should be brought to trials the opinion of the court will proi)erly be as to whether further proceedings before a court- martial are called for in the case, with the reasons for the conclusions reached. Where no such view enters into the inquiry, but the court is convened to investigate a question of military right, responsibility, conduct, &c., the opinion Avill properlj^ confine itself to the special question proposed and its legitimate military relations. A court of inquiry, com- IDOsed as it is of militarj^ men, will rarely find itself called ui)on to express an opinion ujion questions of a i)m*ely legal character.^ XYI, 389. 4. It is not irregular, but authorized, for a court of inquiry, in a proper case, to retiect, in connection with its opinion, upon any improper language or conduct of the accused, pros- ecuting witness, or other i)erson, ai)pearing before it during the investigation.^ XIX, 71. ONE HUXDRED AXD TWEXTY-FIEST ARTICLE. " The proceedings of a court of inquiry may be admitted as evidence by a court martial, in cases not capital, nor extending to the dismissal of an officer : Provided, That the circumstances are such that oral testi- mony cannot be obtained." While the proceedings of a court of inquiry cannot be admitted as evidence on the merits^ upon a trial before a court ^In an exceptional case, that of the special court of inquiry authorized by Congress in the Joint Resolution of Feb. 13, 1871, the court was required to express an oi)inion not only u])on the "moral,'' but upon the ''technical and legal respon- sibility" of the oiiicer for the "offences'' charged. ^Thus, the court of inquiry on the conduct of the Seminole war, adverted, in its opinion, unfavorably upon certain offen- sive and reprehensible language employed against each other by the two general officers concerned, the one in his statement to the court, and tlie other in his official communications which were put in evidence. See G. O. 13, Hdqrs. of Army, 1837. 100 ARTICLES OF WAR. martial of an offence for which the sentence of dismissal will be mandatory upon conviction j^ yet held that ui)on the trial of such offence, as upon any other, such i^roceediugs, properly authenticated, would be admissible in evidence for the x)ur- pose of impeaching the statements of a witness upon the trial who — it was proposed to show — ^had made quite different statements upon the hearing before the court of inquiry .^ XLIII, 339. ' OXE HUXDEED AND TWENTY-SEVENTH AR- TICLE. '^Officers charged with the care of the effects of deceased officers or sol- diers shall account for and deliver the same, or the proceeds thereof, to the legal representajtives of such deceased officers or soldiers. And no officer so charged shall he jjermitted to quit the regiment or post until he has deposited in the hands of the commanding officer all the effects of such deceased officers or soldiers not so accounted for and delivered." This Article, in counection with the two preceding Articles, provides for the securing of the effects of deceased officers and soldiers, making inventory of the same, and accounting for them to the proper legal representative, &c. These Arti- cles have special reference to cases of deaths of military per- sons while in active service in the field or at remote military X^osts, and their provisions apply only to such effects as are left by the deceased "in camp or quarters." [See Arts. 125 and 12G.] An attempt by the commander, &c., to secure effects left elsewhere would not be within the authority here given, and might subject the officer to the liability of an ad- ministrator : such a proceeding would not therefore be advis- able.^ Upon accounting to the duly qualified legal represent- ative, as directed in the Article, the responsibility of the officer is discharged, and it remains for the representative to dispose of the property according to the law applicable to the case. XLIII, 266. ^ Compare G. O. 33, Dept. of Arizona, 1871. ^ See this ruling published, as adopted by the President, in G. C. M. O. 40, Hdqrs. of Army, 1880. ^Compare Samuel, 659; Hough, (Practice,) 558. ABSENCE WITHOUT LEAVE— ACCOMPLICE. 101 ABSENCE WITHOUT LEAVE. 1. Absence without leave may consist in an act of omission as well as in one of commission. Where an officer detailed to command an escort of prisoners and to deliver them at a certain place, neglected, upon this service being performed, to return with reasonable ddigence to his i)roper station, held that he was chargeable with absence without leave, it being the duty of an officer to return i^romptly from such a service without further orders.^ XXXIII, 371. 2. Where an officer or soldier, on returning to his station after an unauthorized absence, is j)laced ui^on or allowed to perform full duty by his proper commander, such action, by the custom of the service, operates in general as a waiver of the charge of absence without leave, and may ordinarily be pleaded as a good defence in the event of a trial. II, 37G, 391. See one HUNDRED AND THIRD ARTICLE S 2. COURT-MARTIAL, II § 14. DESERTION § 1, 18. FINDING § 8. PAY AND ALLOWANCES $ 8. REDUCTION TO THE RANKS, II. ABSENT MEMBER. SEE MEMBER OF THE COLTIT $ 3. ACCOMPLICE. In general, where an accomplice offers and is admitted to testify on the part of the government against an accused per- son, he is called to the stand under an implied promise that no proceedings will be taken against himself, and that the question of his iiardon will be favorably considered, provided he makes a full disclosure of the facts within his knowledge ; and this whether or not the accused be convicted bv means of his evi- ^ See, as to the general rule on this subject, G. O. 82, Hdqrs. of Army, 1866. y^^^^kp^ 102 ACCUSER OR PROSECUTOR — A. A. SURGEON. dence.^ So, where a party, who had thus been admitted to testify as witness, and had in good faith made a full and frank statement of the circumstances of the offence, (of which, how- ever, the accused was acquitted by the court,) was himself subsequently brought to trial for the same act, and convicted and sentenced for his part in the same, — recommended that his sentence be remitted by the President. XI, 590 j XIV, 259. ACCUSER OR PROSECUTOR. SEE SEVENTY SECOND ARTICLE § 6-9. "ACTING ASSISTANT" OR ''CONTRACT" SURGEON. A "contract" or "acting assistant" surgeon is not a mili- tary officer and has no military rank or status. He is amen- able indeed to the military jurisdiction when emi)loyed with the army in the field in time of war ^ (see Sixty Third Arti- cle § 2;) but he is in fact no part of the military establish- ment, but is simply a civilian employed by the United States, under a special contract for his i^ersonal services as a medical attendant to the troops j contract surgeons being thus em- ployed because there are not enough medical oflBcers of the army to attend all the posts. When not serving with troops before the enemy he has no other relation to the military or- ganization or the government than that established by the terms of his contract. IX, 678 j XXVI, 18; XXYIII, 239; XXXIY, 207. He is not subject to military orders in gen- eral, like an officer or soldier, but only to such orders or di- rections as properly pertain to the performance of his partic- ular duties. XXYII, 242. He is of course not liable to be detailed as a member of a military court. XXII, 542 ; XXX, 109. As a civilian, however, he is entitled to the j^er diem allowance, &c., when duly attending a court martial as a wit- ness. XXIV, 180. [See Witness § 19.] See SEVENTY FIFTH ARTICLE ^ I. EIGHTY SECOND ARTICLE § 2, 4. ONE HLT^DRED AND FIFTEENTH ARTICLE $ 1. ^See King v, Eudd, Oowper, 331 ; United States v. Lee, 4 McLean, 103; Whiskey Cases, 9 Otto, 594 ; People v. Whip- ple, 9 Cowen, 707 ; 1 Oliitty Or. L. 708-9 ; 1 Bishop Cr. Proc, § 1075-0, and notes; also lleport, (Xo. 352,) of Committee on Judiciary of Ho. of lieps., 44th Cong., 1st Sess., March 31, 1876. ADJOUKNMENT— AID-DE-CAMP. 103 APJOURNMENT. 1. The adjournment from day to day of a military court is not required, by law or regulation, to be authenticated by the signatures of the in^esident and judge-advocate. YIII, 507. 2. While the i)ractice of noting the adjournment of the court at the end of the record of a trial is a usual and proper one, and is often of service in indicating the sequence of the cases tried and the course and order of the business transacted, a statement of such adjournment is not an essential part of the record of proceedings, and its omission will not aflect their validity. XXIII, 027; XXXIII, 45G. 3. Where the order convening a military court is in the more usual form, requiring it, generally, to try such cases as may be brought before it, an adjournment at some i)eriod of its sessions without a day fixed for its reassembling will not preclude its meeting again and continuing its sessions till its business is terminated. XXI, 91. 4. An adjournment '^sme die^^ of a court martial is quite without legal significance, having no more legal effect than a simi)le adjournment. Such an adjournment does not dissolve the court, since a militarj^ court has no power to terminate its own existence or divest its authority. XXI, 070 ; XXVI, 588 ; XLII, 158. [See Court Martial, I § 13.J 5. A court-martial in session at a military i)ost or station is authorized to adjourn to the quarters, at the same post or station, of a sick witness and there take his testimony, if he is in fact, as certified by the medical officer, too ill to come to the court room.^ XV, 400. ADVERTISEMENT. See contract ^S 2, 3, (5, 7, 9, 10, 11. AID-DE-CAMP. 1. The aids of the General of the Army, though not hold- ing the appointment or office of colonel of the army, are in- vested by law, (sec. 1090, Kev. Sts.,) with the ranic of colonel ' See instance in G. 0. M. O. 37, Dept. of the East, 1870. 104 ALASKA. upon their selection as aids and while acting as sucli.^ They are therefore entitled to sit ni)on courts-martial and boards according to this rank, as dating from their selection. XXX, 168. [Similarly held by the Secretary of War in the case of an aid of the Lieut. General, of the rank of lieutenant colonel, detailed upon a court martial for the trial of a cadet in 1870. j 2. Held^ (December, 18G4,) that the ''additional aids-dc- camp^^^ authorized by the Act of August 5, 18G1, were a part of the regular army. They were appointed by the President and confirmed by the Senate, and the Act creating them provided that they should "bear the ranlc and aittJiority of captains, majors, lieutenant colonels, or colonels of the regular army.'''' Moreover, this Act was expressly entitled as ''supplementary'''' to the Act to increase the military establishment of the United States, of July 29 of the same year, which provided for an in- crease of the regular army by the addition of new regiments. And although the Act of Aug. 5, 1861, i)rovided for the aj)- pointment of these aids only during the rebellion, and for their discharge when not employed in active service, and their reduction in number at the discretion of the President, yet provisions of a similar character, applicable to regular officers, are contained in sec. 6 of the principal Act of July 29. It is not essential to an office in the "regular" army that its term be without statutory limit. XI, 267. [See EeGtULAK Army.] ALASKA. By the treaty of cession with Eussia, subjects of that nation inhabiting the Territory of Alaska at the date of the treaty and continuing to remain such inhabitants for three years, became thereupon American citizens. But the treaty neither mentions nor refers to British subjects or the subjects of any foreign nation other than Eussia: such persons, therefore, residing in the Territory, can become citizens only in the mode and form prescribed by the U. S. naturalization laws. [See Title XXX, Eev. Sts.] kxXVIII, b^)^. 2. Alaska, though unorganized as a Territory, and included in the military department of the Columbia, is lu) more under * This ruling is adopted in a recent opinion of the Attorney General of August 11, 1880. Compare the opinion of the Court of Claims in Wood v. United States, 15 Ct. CI. . ALIEN — APPEAL. 105 military government or juiisdiction than is any other Terri- tory or any State of the United States.^ XXXVIII, 555. ALIEN. 1. Aliens, honorably discharged after enlisting in our army, are not, by such discharge alone, made citizens, but they are thereupon entitled, (under a provision of the Act of July 17, 18G2, now Sec. 2166, Kev. Sts.,) to be admitted to become cit- izens without i)revious declaration of intention, ui)on merely presenting to the proper court, (see Sec. 2165, Rev. Sts.,) a petition for the purpose, accompanied by i)roof of at least one year's residence within the United States previous to the ap- phcation, of good moral character, and of the fact of honorable discharge. XXVII, 69 j XXIX, 295, 369; XXXI, 255. 2. Held that Sec. 2166, Rev. Sts., (see § 1, supra,) did not apply to the case of an alien honorably discharged from an enlistment as a seaman in the navy ; the term "armies of the United States," employed in the statute, being deemed to refer, (as in the Constitution,) only to the military force proper.'^ XLI, 613. AMENDMENT OF CHARGE. See charge ^ 12, 28. COURT-MARTIAL, I $ 7. JUDGE ADVOCATE $ 10. APPEAL. Appeal, in the sense in which the term is employed in the procedure of the civil courts, is unknown to the military law. [See Thirtieth Article § 1.] While there is such a thing ^ "It is a mistake to suppose that the Territory of Alaska is under military rule any more than any other part of the country, except as to the introduction of spirituous liquors, and the making of arrests for violations of the existing law regulating their introduction and disjiosition, (see Indian Country § l,note.) — in cases of which arrests "the military reallv act as civil officers and in subordination to the civil law." In re Carr, 3 Sawyer, 318. 2 Similarly held in In re Bailey, 2 Sawyer, 200. 106 APPOINTJiIENT. as a new trial, — a proceeding, liowever, of rare occurrence, (see New Trial,) — a party legally sentenced by a competent court-martial Las no right of appeal to a higlier or other tri- hunalj but, in the great majority of cases, can obtain relief only b}' application to the pardoning power, or — where the sentence has been executed — to Congress. I, 451. That the proceedings of militarj' courts are not subject to revision by the civil tribunals, see Oourt-Martial, I, § 1. APPOINTMENT. 1. An appointment, (or commission,) in order to take effect at all, must be accepted; but, when accepted, it takes effect as of and from its date, i. e., the date on which it is completed by the signature of the ai^pointing power, or that as and from which it purports in terms to be operative.^ [See Rank § 1.] So held that certain Assistant Surgeons, whose apjiointments were noted in the Army Register as dating from the dates of acceptance, were entitled to have such dates changed to those of the api:)ointments as actually made; that, while the date of acceptance is important in iixing the time from which, ac- cording to par. 1346, Army Regulations, properly commences the right to pay, ^ it is the date of the execution of the ap- X>ointment itself, (or the x)riordate, where it is made in terms to relate back,) which i^roperly fixes the relative rank of the officer. XXXIX, 629. 2. Where to certain appointments made on the same date a particular order was given, with the intention of having the appointees rank in that order, but, subsequently, in sending the names to the Senate for confirmation, this order was by mis- take reversed; lield^ after a confirmation of the ai)pointees as thus sent, that this mistake and action could properly have no effect to change the relative rank of these officers as given and fixed by the original act of ai^i^ointmeut. XLII, 254. 3. The Constitution, (Art. II, Sec. 2 § 2,) provides that ^See Marbury v. Madison, 1 Cranch, 137; United States v. Bradley, 10 Peters, 304; United States v. LeBaron, 19 How., 78; Montgomery v. United States, 5 Ct. CI. 97. 2 See opinion of Attorney General of June 8, 1878, (XYI Opins. — .) APPOINTMENT. 107 " Congress may by law vest the appointment of inferior offi- cers in the President alone." So, where, in three several cases, Congress, by special legislation, authorized the Presi- dent to ^' restore," or " reinstate," in his former rank and office, an officer, (who had been — as expressed in the Act, or indi- cated by the reports of Committees, debates, &c. — in the opinion of Congress, erroneously or unjustly dismissed or mustered out,) and to place him on the retired list in his pre- vious grade, held that such legislation empowered the Presi- dent to reappoint the party without the concurrence of the Senate, and that the simple act of appointment by the Presi- dent alone fully invested the party with the military office.^ XLII, 178, 193, 24G, 353. [See Statutes— Consteuction OF § 0.] 4. The Act of June 18, 1878, c. 2G3, s. 4, made eligible for appointment, as second lieutenants, non-commissioned offi- cers of the "commands" of the "chiefs of the staff corps" of the army. Held, under this provision, that a non-commis- sioned officer on detached service as a clerk in the office of the Adjutant General was eligible to such appointment. XXXIX, G29. In a case of a principal musician, who was also a lance sergeant, recommended for appointment as second lieutenant under s. 3 of the Act of June IS, 1878, c. 263, held that neither a principal musician nor a lance sergeant was a non-commis- sioned officer, and therefore that the soldier was not eligible to appointment under the statute. XLIII, 373. 5. Held that a special authority given by an Act of Con- gress to the President to appoint a certain civilian to "any vacancy occurring in the grade of captain" in a certain regi- ment, empowered the President to appoint the party to the next such vacancy, without regard to the claim thereto, of the senior first lieutenant.^ XXXIX, 525. 6. It was provided by the Act of June 18, 1878, c. 203, s. 13, that no appointments or jiromotions should thereafter be made to fill any vacancy occurring in the army, (except in ^ See this ruling confirmed by the Court of Claims in Collins T. United States, 14 Ct. CI. 56S. The Solicitor General, how- ever, in an opinion of April 10, 1879, (XYI Opins. — ,) had previously held contra. ' See Xiv Opins. of Attys. Gen., 499. 108 APPOINTMENT. certain inferior grades specified,) until the report of a certain joint committee on tlie reform and reorganization of the army, constituted by the same Act, and required to make report to Congress by January 1st, 1879, sliould "be made and acted upon by Congress." The report was made prior to the date fixed and was considered in various forms by both houses of Congress, but Congress finally adjourned, on March 4th, 1879, without specifically adopting or rejecting the ref>ort as such. Held that the Congress intended by the Act was the Congress by which the Act was passed, viz., the Forty Fifth Congress ; that as this Congress ceased to exist on the said March 4th, after which no action by it upon the report was possible, it might properly be said to have ''acted upon" the same within the general terms of the Act; and that accordingly, from and after the said date, the prohibition against the making of mil- itary appointments might be considered at an end. But held that the President, in thereafter appointing to vacancies which had in fact occurred during the period of prohibition fixed by this Act, could not legally date back the apx)oint- ments to take effect as of the dates of the vacancies, but that such a|)i3ointments could take effect only only on or after the said March UW XLII, 197 ; XLIII, 85. 7. Held that the provision of sec. 6 of the Act of March 3, 1869, prohibiting appointments and i^romotions in the medi- cal and other staff* corps did not apply to or jirevent the ad- vancement in rank of assistant surgeons from lieutenant to captain ; the increased rank of these officers resulting by oper- atio7i of law, after three years' service, under the Act of July 28, 1866, (Sec. 1168, Rev. Sts.;) and no new appointment being required for the purpose. ^ XXXI, 220, 223. 8. Eeldj (Ji^ily? 1875,) that there was no existing law pre- cluding the President from appointing a captain of infantry to the office of assistant quartermaster. XXXVI, 429. 9. Seldj (March, 1876,) that a civilian, (in this case a late captain who had been made a civilian by the approval and execution of a sentence dismissing him from the army,) could, under existing law, be appointed to the line of the army only. ^ The appointments were made according to this view, and were confirmed, after considerable debate, at the first session of the Forty Sixth Congress. ^ See, to a similar effect, opinion of the Solicitor General of January 2J, 1880, (XYI Opins. — .) APPOINTMENT. 109 in tlie grade of second lieutenant^ in the absence of express au- thority from Congress. For his appointment to his former grade, so as to except his case from the operation of the rnle of i^romotion 1)3' seniority, the authority of Congress would be necessary.^ XXXVII, 363; XXXVIII, 159; XLIII, 130. 10. Held that an appointment of a person as an officer of the army with the view and purpose of at once placing him on the retired list, would not be within the appointing i)ower of the Executive, independently of authority from Congress ; appointments to military office by the President being in con- templation of law appointments for the active duties and service of the military life, which can properly be performed only by men i)hysically and mentally qualified therefor. Con- gress, however, of course may, as it has done in several cases,^ by a special enactment authorize the President to aj)- point an officer and thereupon place him on the retired list. XLIII, 130. 11. There can be be no question as to the authority of Con- gress to authorize the appointment of an officer with both rank and pay from a back date.^ So the President, (except where expressh^ prohibited by statute — see § 9, siqn-a^) may, with the concurrence of the Senate, appoint an officer with rank from an earlier date, though not, except by express au- thority of Congress, with back pay.^ But where an appoint- ment to a specific military office has been dul}' made and ac- ceiDted and has taken effect, held that the appointing power, as to that office, is exhausted. The Executive maj' indeed correct an error (of fact) in the date of such appointment,'' but — no such error existing — he can not re-make the same as of a different and earlier date, either by his own action or by means of a re-nomination to the Senate, /or the i^urpose of redressing an injury or grievance claimed by the officer to have resulted from the date oiiginally given to the appoint- ment. For such would be a granting of reliefs and relief of a sort which can be accorded o\\\y by Congress. XLIII, -OS. ^ See XIV Opms. of Attys. Gen. 2, 161, 499. 2 See Acts of June 21, 1876, c. 113; June 19, 1878, c. 330; Mch. 3, 1879, c. 175; Mch. 3, 1879, c. 201. ^ V Opins.of Attvs. Gen., 101; VI Id., Q^S, 71; VII Id., 712. *IV Opins. of Attys. Gen., 318, 608; V Id., 132 ; VIII Id., 223 ; United States v. Vinton, 2 Sumner, 299. ^See 111 Opins. of Attys. Gen., 307. 11.0 APPOINTMENT. 12. The authority to '^appoint" regimental staff officers, couferred upon regimental commanders by par. 73 of the Array Eegulations, is no part of the constitutional ai^point- ing power, but is merely an authority to select and detail. As such it may be regulated by orders from the War Depart- ment, where desirable to prevent its being so exercised as to prejudice the interests of the service. Thus it is competent for the Secretary of War to direct by General Order that such appointments shall not be dated back so as to take effect as of dates prior to those on which they were actually made, as also that apx)ointees shall not become entitled to the addi- tional pay for a period x^i'ior to their entering upon their duties.^ XLI, 009. 13. The function of regimental quartermaster is not an office but merely a duty attached to the office of a first lieu- tenant appointed to exercise it. The authority given to the commander of a regiment, by par. 73 of Army Regulations, to '' nominate the regimental quartermaster to the Secretary of War for appointment if approved," is simply an authority to recommend a first lieutenant for the position, and the Secretary, in making the appointment, does not exert any of the appointing power of the Constitution, but only a power of selection and detail. Under Art. II, Sec. 2 § 2 of the Constitution, a head of an executive department cannot ap- point to office without being empowered to do so by Congress. Thus, the appointment of a regimental quartermaster being a mere detail, the Secretary of War is authorized at any time to withdraw or discontinue the appointment and service of a liarticular officer as regimental quartermaster, and to call upon the regimental commander to nominate another first lieutenant therefor. XLII, 507. 14. A regimental commander is not obliged by par. 73, Army Regulations, to appoint to be sergeants or corj^orals of companies, the soldiers recommended to him for such appointments by the company commanders. He is to be re- garded as vested with a discretion in the matter, and though in the great majority of instances he will proi^erly appoint as recommended, he may, and should, decline to appoint where ^ See the subsequent G. O. 73, Hdqrs. of Army, 1879, in accordance with this opinion. APPROVAL OR DISAPPROVAL OF PROCEEDINGS, ETC. Ill he believes the nominee to be an unfit person. XXYII, 159. See cadet $ 1-7. DISMISSAL, II $ 4. RETIREMENT ^ 9. STATUTES— CONSTRUCTION OF $ 6, 7, 12. SUPERNUMERARY LIST. VOLUNTEERS $ 2. APPROVAL OR DISAPPROVAL OF PROCEEDINGS, &c. See FORTY-EIGHTH ARTICLE § 1. ONE HUNDRED AND SECOND ARTICLE $ 5. ONE HUNDRED AND FOURTH ARTICLE. ONE HUNDRED AND SIXTH ARTICLE. ONE HUNDRED AND ELEVENTH ARTICLE. DEFECTS IN PROCEEDINGS OR SENTENCE. NEW TRIAL. PAY AND ALLOWANCES $ 9. PRESIDENT, II ^ 1. RECORD § 1, k. REVIEWING AUTHORITY. SENTENCE AND PL^^ISHMENT $ 14. ARMS— FURNISHING OF. See BOND, IV, V. CQLLEGE OR UNIVERSITY $ 2, 3, 4. ORDNANCE DEPARTMENT. ARMS— SALE OF. See public PROPERTY § 4, note. SALE OF MILITARY STORES. ARMY— EMPLOYMENT OF FOR CIVIL PURPOSES. 1. Under Art. IV, Sec. 4, of the Constitution, the army may be employed to protect a State from "invasion" or "domestic violence " only by the order of the President, made " on application of the legislature, or of the executive when the legislature cannot be convened." A military commander, of whatever rank or command, can have no autliority, except by the order thus made of the President, to furnish troops to a governor or other functionary of a State, to aid him in making arrests or establishing law and order. XXX, 125; XLI, 206. 112 ARMY — EMPLOYMENT OF FOR CIVIL PURPOSES. 2. The proviso of the Constitution — " when the legislature cannot be convened," may be said to mean when it is not in session, or cannot, by the State law, be assembled forthwith or in time to i)rovide for the emergency. When it is in session, or can legally and at once be called together, it will not be lawful for the President to em^^loy the army on the application merely of the governor. XXX, 172. 3. A military Ibrce employed according to Art. IV, Sec. 4, of the Constitution, is to remain under the direction and orders of the President as commander-in-chief and his military subordinates : it cannot be placed under the direct orders or exclusive disposition of the governor of the State. XXX, 172. 4. The constitutional provision, (Art. TV, Sec. 4,) authorizes the employment of the army to protect from invasion or domestic violence a State only. The President is not, there- fore, empowered, under these laws, to employ any part of the military force to i^rotect from domestic violence a Territory on the api)lication of the territorial governor or legislature.^ XXXIX, 578. 5. Officers and soldiers of the army can legally serve on a posse comitatus only at the summons or api)lication of a m.ar- shal or deputy marshal of the United States ; they c>annot legally serve or be required to serve on the posse of a sheriff or other functionary of a State. XXXVI, 450. [See Posse Comitatus § 1, 2. | As to the effect of the provision of the recent Act of June 18, 1878, in regard to the service of the military on a posse comitatus, see next paragraph. G. It is provided in s.*15 of the Act of June 18, 1878, c. 2G3, that — " Prom and after the passage of this act it shall not be lawful to employ any part of the Army of the United States as a posse comitatus, or otherwise, for the purpose of executing the laws, except in such cases and under such circumstances as such emi)loyment of said force may be expressly authorized by the Constitution or by act of Congress." In view of this legislation, held as follows : — That inasmuch as it was not expressly authorized by any ^ '' It is remarkable how silent the Constitution is on the subject of a Territory so-called, that is an organized govern- ment within the Union but not of it." Atty. Gen. Cushing, in VII Opins., 574. AR'MY — EMPLOYBIENT OF FOR CIVIL PURPOSES. 113 Act of Congress that U. 8. ^larsbals slioiild be empowered to summon the military to serve on a posse comitatus, (but this was authorized only indirectly and impliedly by the i)rovision of the Act of Sept. 24, 1780, incorporated in Sec. 787 of the Revised Statutes/) the army could not, under the existing law, legally act on the posse comitatns of a marshal or deputy marshal of the United States.- XLI, G77: — That — in the absence of such an ^^ unlawful coudjination" as is contemplated hy Sec. 5298, Rev. Sts. — the President woidd not be authorized to employ a military force to assist insi)ectors of customs in seizing smuggled property or arresting persons concerned in violations of the revenue lawsj such an emidoy- ment not being expressly authorized by any statute. XLI, G77 : — That whenever a marshal or deputy marshal vras prevented from making due service of judicial process, for the arrest of persons or otherwise, by the forcible resistance or opposition of an unlawful combination or assemblage of i)ersons, the President w^as expressly authorized by Sec. 5298, Rev. Sts., to employ such part of the army as he might deem necessary to secure the due service of such process and execute the laws ; first however in any such case, (as in any case arising under Sees. 5297 and 5299,) making proclamation as required by Sec. 5300. XXXIX, G05 ; XLIII, 80, 321:— That, notwithstanding the legislation of June 18, 1878, the President was authorized to employ the military to arrest and prevent persons engaging in introducing liquor into the Indian country contrary to law, as also to arrest persons being otherwise in the Indian country in violation of law, ^ or 1 VI Opins. of Attys. Gen. 471 ; Letter of Atty. Gen. Evarts to the U. S. Marshal for the Xo. Dist. of Fla., Atty. Gen's Office, Aug. 20, 18G8; General instructions to U. S. Marshals from Atty. Gen. Taft, published in G. 0. 9G, Hdqrs. of Army, 187G ; also Opinion cited in next note. ^ See, to a similar effect, opinion of the Attornev General, of October 10, 1878, (XVI Opins. — .) ^But note that, in view of the provisions of Sec. 2151, Rev. Sts., an ofiicer of the army who detains a person arrested under Sec. 2150 longer than five days before ''conveying him to the civil authority," or subjects liim when in arrest to unreason- ably harsh treatment, renders himself liable to an action in damages for false imprisonment. In re Carr, 3 Sawyer, 316; Waters v. Campbell, 5 Id. 17. And see Alaska, § 2, note. 8d 114 ARMY — EMPLOYIVIENT OF FOR CIVIL PURPOSES. to make the arrest therein of Indians charged with the com- mission of crime ; such employment being expressly authorized by Sees. 2150 and 2152, Rev. Sts. XLIII, 111 :— That the President was authorized, by Sec. 2150, Rev. Sts., to remove by military force, after a reasonable notice to quit, certain persons commoranc upon an Indian reservation con-" trary to the terms of a treaty between the United States and the tribe occupying the reservation, and who therefore were there '' in violation of law " in the sense of that Section.^ XXXYII, 266:— That the provision of June 18, 1878, was not to be con- strued as interfering with the authority and duty of the President to employ a necessary military force for the removal of trespassers from a military reservation ; such emi^loyment not being, properly speaking, " for the purpose of executing the laws," but a mere protecting, by the executive department, of public proi^erty in its military charge.^ XXXI, 615. [See Military Reservation § 6 and note.] 7. In all cases of civil disorders or domestic violence, it is the duty of the army to preserve an attitude of indifference and inaction till ordered to act by the President, by the authority of the Constitution or of Sec. 2150, 5297 or 5298, Rev. Sts., or other public statute -, or duly required to serve on the posse of a marshal or deputy marshal of the United States. An officer or soldier may indeed interfere to arrest a person in the act of commit ring a crime, or to i^revent a breach of the peace in his presence, but this he does as a citizen and not in his military capacity. [See Twenty Fourth Article.] Any combined effort by the military, as such, to make arrests or otherwise prevent breaches of the l^eace or violations of law in civil cases, except by the order of the President or the requirement of a U. S. official authorized to require their services on a ])osse comitatiis, must necessarily be illegal. In a case of civil disturbance in violation of the ^ See XIV Opins. of Attys. Gen. 451 5 and note the recent proclamation of the President published in G. O. !(>, Hdqrs. of Army, 1880, relating to the iutrusiou of unauthorized per- sons upon the '' Indian Territory" and dechiring that the army would be employed to effectuate their removal if necessary. -''13ue caution shouhl be observed, however, that, in exe- cuting this duty, there be no unnecessary or wanton harm done to i)ersons or property." IX Opins. of Attys. Gen. 476. ARMY — ^EMPLOYMENT OF FOR CIYIL PURPOSES. 115 laws of a state, a military commander cannot volunteer to intervene with his command without incurring a personal responsibility for his acts. In the absence of the requisite orders he may not even march or array his command for the purpose of exerting a moral efi'ect or an effect in terror em ; such a demonstration indeed could only compromise the authority of the United States while insulting the sovereignty of the State. XXX, 125; XXXII, 32, 241; XXXVI, 450; XLI, 20G. 8. Held^ (April, 1879,) to be at least doubtful whether the authority of the President as Commander-in-chief could legally' be extended to the ordering of an officer of the army upon the purely civil duty of instructing Indian youth, unless indeed such instruction was to be given by him as a professor of a college, &c., under Sec. 1225, Rev. Sts. Special duties of an exclusively civil character, where intended to be any- thing more than merely temporary, have in general been devolved upon military officers only by the authority of express legislation, — as for example, in the cases provided for by Sees. 1225, 2002, 2190, and 4G87, Eev. Sts., in which authority has been given by Congress for the emjiloyment of officers of the army as professors, &c., of colleges, Indian agents, and assistants in taking the census^ and on the coast survey. So, advised,, that, if thought expedient to devolve upon military officers the function of the instruction of Indian youth, specific authority be obtained from Congress for the purpose.^ XLI, 545. See colored TROOPS. ^ See G. O. b9, Hdqrs. of Army, 1880. - Congress was accordingly resorted to for authority in this instance, and, by the Act of June 23, 1879, c. 35, s. 7, the Secretary of War was specially empowered ''to detail an officer of the army not above the rank of captain for special duty with reference to Indian education." A detail was made accordingly — by S. O. 194, Hdqrs. of Army of Aug. 23d fol- lowing. 116 AKMY REGULATIONS. ARMY REGULATIONS. 1. Army regnlatious proper are merely executive or admin- istrative rules and directions as distinguished from statutes.^ A regulation cannot legislate nor can it contravene the stat- ute law. A regulation in conflict with an existing Act of Congress can have no legal effect ; if, subsequently to the issue of a regulation, an Act is passed with which it con- flicts, it becomes at once inoperative.^ XXXYIII, 255, 641. ^ Army Regulations are not to be confounded with the '^ rules for the government and regulation of the land (and naval) forces," which Congress is emi:>owered to make, by sec. 8, Art. I of the Constitution 5 these being, of course, statutory rules. The use in this section of the word '' regula- tion ; " the fact that the published Army Eegulations contain sundry statutory provisions not distinguished from the mass of regulations proper, and embrace also some subjects which seem scarcely within the scope of executive directions or mil- itary orders but to pertain rather to the province of the statute law ; and the further fact that the Army Regulations as a body received a special recognition, (see § 3, infra^) in the Act of July 28, 18G6 — these circumstances have contrib- uted to confuse regulations with statutes much to the embar- assment of the student of military law. Regulations proper, (unlike Articles of war, which are statutes,) are simply orders and directions made and ])ublished to the Army by the Pres- ident, either as Commander-in-chief, for the purposes of the exercise of command over the army, or as Executive, for the X)uriJOses of the execution of powers vested in him by law. By Congress, indeed, the President or Secretary of War is sometimes expressly required to make special regulations for special objects. Such regulations, however, are not of the class of general army regulations proper. These may be made by the President at any time, at his discretion, and of his own authority. See citations in next note. 2 As illustrating the distinction between statutes and regu- lations, and the principle that regulations can have force only so far as they are not inconsistent Avith the statute law, see United States v. Webster, Daveis, 56-59, and 2 Ware, 54-60 ; Boody V. United States, 1 Wood. & Minot, 164 ; McCalPs Case, 5 Philad. 259 ; In re Griner, 16 Wise. 434 ; Magruder V. United States, Devereux, 148 ; 1 Opins. of Attys. Gen. 469 ; IV Id. 56-63, 225-7 ; VI Id. 10, 215, 365 5 VIII Id. 343 ; XI Id. 254 ; O'Brien, 31. As to the inferior force and obligation of the British Army APt:MY KEGIJLATIO^'S. 117 2. Au authority wliieli can legally be vested by legislation only, cannot of course be conferred by an executive regula- tion. Thus held that the expenditure of the proceeds of the sale of articles manufactured by the prisoners at the Military Prison, such i^roceeds being public funds, could not properly be the subject of an army regulation. XLII, 24. 3. Eeld that the provision of s. 37, c. 290, Act of July 28, 186G, which, in directing the Secretary of War to i^repare and report to Congress at its next session a new set of regu- lations, added : " the existing regulations to remain in force until Congress shall have acted on -said report,'' — meant merely that the same should remain in force ^.9 regulations ; it did not communicate to them the quality or effect of stat- utes. XXXIII, OGG; XXXYII, 417; XXXIX, 235. This enactment, which was but temporary, and was practically superseded by a similar provision of s. 20, c. 294, Act of July 15, 1870, was not incorjjorated in any form in the Eevised Statutes. Meanwhile the Eegulations in force in July, 1806, have been very considerably modified and added to.^ Thus there is now no existing statutory sanction — such as that of Sec. 1547, Kev. Sts., in regard to the regulations of the Eegulations as compared with the 3Iutiny Act, (and Articles of War thereby authorized,) see Samuel, 193-197. Clode, (Mil. & Mar. Law, p. T)7)^) illustrates the nature of these Eegulations in noting that originally, '^ Each Colonel had his own Standing Orders — no General Eegulations being in existence — for the discipline and exercise of his regi- ment." That regulations promulgated through the Secretary of War are to be '' received as the acts of the Executive,'' — see United States v. Eliason, 16 Peters, 301 ; United States i\ Webster, Daveis, 59 ; United States v. Freeman, 1 Wood. & Minot, 50-1; Lockington's Case, Brightly, 288; McCall's Case, 5 Philad. 289 ; In matter of Spangler^ 11 Mich. 322 ;— in connection with other authorities noted under Seceetaky OF War. 'The opinion exi:>ressed by the Attorney General, (XIV Opins. 173— January, 1873,) 'that by the Act of 1866, "^ the authority to modify" the then existing army regulati(ms, " previously possessed by the Executive," under the Act of April 24, 1816, "would seem to have been taken away," — was apparently not concurred in by the Secretary of War ; repeated modifications of these regulations having' been published in orders since, (as well as before,) the dateof this opinion. In 118 ARRAIGNMENT. navy^ — for the Army Regulations as a whole. No such sanc- tion, however, or recognition, is necessary to give effect to regulations projjer.^ XXXIX, 235. 4. Sec. 2 of the Army Appropriation Act of June 23, 1879, in directing the Secretary of War "to cause all the regula- tions of the army and general orders noiv in force, to be codi- fied and published to the army, and to defray the expenses thereof out of the contingent fund of the ami} ," refers of course to the regulations and orders in force at the date of the Act. But although the expense of the codifying, (i. e.y compiling and systematically arranging,) and of the publica- tion, of such regulations and orders only as are in force at the date of the Act, can be paid for out of the fund desig- nated, the Secretary of War can of course cause the regula- tions and orders made and issued since the date of the Act to be compiled and arranged by clerks of his Department, as a part of their regular work, and without additional compen- sation, — so that the x^ublication of the whole, when finally made, shall exhibit the existing regulations and orders at that date. XLIII, 83. 5. A breach of an army regulation, imposing a duty upon an officer or soldier, is in general chargeable as " Conduct to the prejudice of good order and military discipline," and punishable under Art. 62, XXXIX, 283. [See Sixty-sec- ond Article § 0. And compare, as to violations of the Eeg- ulations for the Military Academy — Cadet § 7.] ARRAIGNMENT. See record ^ 1, g. United States v. Eliason, 10 Peters, 301, the Supreme Court, referring to the general power of the Executive to institute army regulations, observes : — ''The power to establish implies, necessarily, the power to modify * * * or create anew." ^This Section is as follows: — "The orders, regiriations, and instructions issued by the Secretary of the Xavy i)rior to July 14, 1802, with such alterations as he may since have adox^ted, with the ai)proval of the President, shall be recog- nized as the regulations of the Xavy, subject to alterations adopted in the same manner." ^ See first note under this Title. AEEEST, I— MILITARY. 119 ARREST, I— MILITARY. 1. An office r may be put iu arrest by a verbal or writteo order or eoumiuuicatiou from an authorized sux^erior. advis- iug Lim that he is phiced iu arrest or will consider himself iu arrest, or iu terms to that effect : the reason for the arrest need not be specified. At the same time he is usually required to siUTender his sword, though this formality may be dis pensed with. But an arrest, though au almost invariable, is not an essential preliminary to a military trial : to give the court jurisdiction it is not necessary that the accused should have been arrested; it is sufficient if he voluntarily, or in obedience to an order directing- him to do so, appears and submits himself to trial. So, neither the fact that an accused has not been formally arrested, or arrested at all, nor the fact that, having been once arrested and released from arrest, he has not been re-arrested before trial, can be pleaded in bar of trial or constitute any ground of exception to the validity of the proceedings or sentence. II, 77 ; XVII, 419 ; XIX, 119 ; XXIX, 170 ; XXX, IGl ; XXXV, 112. An officer is in no case entitled to demand to be arrested. XVII. 119. 2. Exceptintheclassof cases indicated in Art. 21, only '-com- manding officers " can place commissioned officers in an-est. [See par. 221, Army Eegulations.] The commanding officer thus authorized is the commander of the regiment, company, detachment, post, department, &c., in which the officer is serving. XXVI, G12. Where a company is included in a post command, the commander of the post, rather than the comjiany connuander, is the proper officer to make the arrest of a subaltern of the company. XXIX, 301. In the majority of cases, however, arrests are originally ordered by the authority by whom the court has been or is to be convened. XXIX, 17o! 3. It is clearly to be infeiTcd from par. 223 of the Army Eegulations that unless other limits are specially assigned him, an officer in aiTCSt must confine himself to his quarters. It is generally understood indeed that he can go to the mess- house or other place of necessary resort. It is not unusual, however, for the commander, in the order of arrest, to state 120 certain limits within which the officer is to be restricted, and, except in aggravated cases, these are ordinarily the limits of the post where he is stationed or held. Y, 434. An officer or soldier, though retained in close arrest, should be i)ermit- ted to receive such visits from his counsel, witnesses, &c., as may be necessary to enable him to prei^are his defence. XXXYIII, 03. [See Counsel, III § 3.] When an officer is I)laced in close arrest in his "quarters," and these consist of several rooms, he is not obliged to confine himself to a single room. XXYII, 210. 4. The status of being in arrest is inconsistent with the per- forming of military duty. II, 77. Placing an arrested officer or soldier on duty terminates his arrest. XX YI, 114. Keleas- ing a soldier froui arrest and requiring him to perform military duty, after his trial and while he is awaiting the promulga- tion of his sentence, can be justified only by an extraordinary exigency of the service. YIII, 234. 5. The fact that a soldier has been held in arrest for an uureasonably protracted period before trial, or while await- ing the promulgation of his sentence, is a good ground for a mitigation of his punishmeut. XXXY, 504. 6. An officer is not privileged from arrest by virtue of being at the time a member of a general court-martial. But an arrest of an officer while actually engaged upon court-martial duty, should if possible be avoided. YII, 320. 7. An officer under arrest is not disqualified to prefer charges. Y, 348 ; XYI, QS. 8. The imi)osition of an arrest affects in no manner the right of an officer or soldier to receive the pay and allowances of his rank. IX, 04 ; XIII, 386 ; XXIII, 18. Except in a case of a deserter, (see par. 1359, Army Eegulations,) no legal inhibition exists to paying a soldier while in arrest — either before trial or while awaiting sentence — his regular pay and emoluments. XXX, 419. 9. The principle of the common law by which a witness is protected from arrest ^ should in general be applied to mili- tary cases. If it can well be avoided, an arrest should cer- tainly not be imposed upon an officer or soldier while attending a court martial as a witness. But such an arrest would con- n Greenl. Ev. § 316 ^ Smythe v. Banks, 4 Dallas, 329. ARREST, II — BY THE CIVIL AUTHORITIES. 121 stitute an irregularity only, and would not afifect tlie validity of the proceedings of a trial to Tvliicli the party thus arrested was subsequently sulrjected. XXXIX, 12. 10. A soldier while confined in arrest should not be fettered or ironed excej^t where such extreme means are necessary to restrain him from violence, or there is ^ood reason to believe that he will attempt an escape and he cannot otherwise be securely held. XXX, 483. See sixty SECOXD ARTICLE $ 6 SIXTY FIFTH ARTICLE. SIXTY SIXTH ARTICLE. SEVENTIETH ARTICLE. SEVENTY FIRST ARTICLE. ONE HUNDRED AND THIRD ARTICLE $ 7. COURT MARTIAL, 1^5; II $ 6. INDIAN COUNTRY v> 2. JUDGE ADVOCATE ^ 14, 24. NATIONAL CEMETERY $ 4. SUSPENSION $ 6. ARREST, II— BY THE CIVIL AUTHORITIES. 1. A soldier, (other than a deserter — under Art. 48,) cannot legally be required to make good to the United States a period of time during which he was held in arrest or on trial by the civil authorities on account of a civil oflence. XXII, 570 : XXIV, 279. 2. A soldier, arrested by the civil authorities and released on bail to await trial, may, on returning to his station, be required to perform the usual military duty appropriate to his rank. XXIY, 270 ; XXY, 559. 3. The fact that a soldier has been arrested by the civil authorities is no ground for witholding pay due him at the date of arrest. XXIY, 279 ; XXYI, 5G3. Xor can a soldier so arrested legally be deprived of pay accruing during the period of arrest and detention.^ XXXI, 288, 295. ^ See II Opins. of Attys. Gen., 396. And see also the opin- ion of the Second Comptroller of the Treasarv, published in G. O. 39, Hdqrs. of Army, 1879, to the eftect that the tact that a soldier has been convicted of crime by the civil author- ities does not per se imjiair his right to the pay of his rank. Where a soldier is convicted by a civil court of a serious offence, or is arrested for such an offence under circumstances 122 ARTIFICIAL LIMBS— ASSISTANT SURaEON. * 4. There is no statute, (like Sec. 1237, Eev. Sts., relating to enlisted men,) by which a commissioned officer is exempted from arrest for debt, where such arrest is otherwise legally authorized.^ XXXIII, 8. See fifty NINTH ARTICLE. ARTIFICIAL LIMBS. 1. To entitle a person, disabled as a soldier, to receive arti- ficial limbs or apparatus under Sec. 4787, Eev. Sts., it is not necessary, in the absence of any statutory requirement on the subject, that he should have been honorably discharged from the military service. Xor can the mere fact that he has been a deserter aflect his right. XIY, 672. 2. Held that the descrii^tion, "hired men of the land forces," employed in the Act of Feb. 27, 1877, amending Sec. 4787, Eev. Sts., might properly be construed to include the mechan- ics and laborers emi^loyed at Arsenals by the authority of the provisions of Title XYII of the Eevised Statutes. XXXIX, 316. ASSIGNMENT OF CONTRACT. See contract ^ 18, 19, 20. ASSISTANT SURGEON. 1. It is a peculiarity in the status of assistant surgeons, (under Sec. 1168, Eev. Sts.,) that these are the only officers in our army, (except Lieutenants of Engineers and Ordnance — see Sec. 1207, E. S.,) in whose case promotion to a higher grade results by operation of law from mere duration of service and independently of any action by the api^ointing power. XLIII, 208. clearly indicating that he is guilty, it will in general, as sug- gested by the Attorney General, in the opinion cited, '^ be better for the government to discharge him from service and thus to terminate his claim to compensation." ^ See Moses v. Mellett, 3 Strobh. 210 j McCarthv v. Lowther, 3 Kelly, 397 ; Ex parte Harlan, 39 Ala. 565. But note in this connection the general principle of public policy by which I)ublic servants are exempted liom arrest on civU^ (though not on criminal,) process, while on i)ublic duty. United States v. Kirby, 7 Wallace, 483 ; Coxson v. Poland, 2 Daly, (jQ. ASSISTANT SURGEON — AUTHENTICiSTION. 123 2. Held that a person appoiuted, under sec. 17 of the Act of July 28, 18GG, fixing the military peace establishmeut, an assistant surgeon with the rank of captain, — to which rank he was entitled by length of service according to the Act, — was entitled to rank as a captain in the medical department, and in the army, from the date of his appointment, and as such to have precedence and priority in service, and on the Army Eegister, over all assistant surgeons api)ointed captain after himself, though they may have been appointed assistant surgeons with the rank of first lieutenants before he was so appointed with the rank of cai^tain; and, further, that he was entitled, on courts-martial, boards, &c., to rank any cap- tain of the army whose aj^pointment as such was of more recent date than his own.^ XXXIX, 491, 508. See appointment ^ 1, 7. ATTACHMENT, (OF PROPERTY.) See civil PEOCESS § 1-5. ATTACHMENT, (OF WITNESS.) See witness »S 28-34. AUTHENTICATION. See one HUNDRED AND SIXTH ARTICLE $ 2. JUDGE ADVOCATE § 22. RECORD ^ 1, L ^ See, to a similar general effect, opinions of the Solicitor General of June 6 and July 2, 1878, (XVI Opins. .) 124: BAIL—BOARD OF INVESTIGATION. B. BAIL. "No court-martial, military commander, or other military authority is empowered to accept bail for the appearance of an arrested party or to release a prisoner on bail. Bail is wholly unknowTi to the military law and practice j nor can a court of the United States grant bail in a military case.^ IX, 260 5 XXr, 258. BALL AND CHAIN. See sentence AND PUNISHMENT § 8. BOARD OF INVESTIGATION. A Board of officers convened to investigate — obtain, or hear and examine, evidence — and report, can, in the absence of specific statutory authority, exercise none of the peculiar legal functions either of a court-martial or a court of inquiry. II, 340; XXI, 335; XXVI, 492; XXXII, 3; XLI, 263. Its members cannot be sworn ; it cannot swear witnesses ; civil- ian witnesses cannot be compelled to appear before it; nor are the witnesses who apj^ear and testify legally entitled to any compensation for attendance or travel. XI, 672; XXI, 335 ; XXYI, 401^. Such a Board cannot tri/, (XI, 672 ; XXXII, 3,) nor can it sentence. XI, 672. There is properly no "ac- cused" party required or entitled to ai^pear before it as before a court-martial or court of inquiry. II, 340. It is not re- stricted by law as to the i)eriod of its sittings, nor is it affected by any statute of limitations. XXVI, 493. Its members, ^The act of July 3864, c. 253, s. 7, — which authorized a judge or commissioner of a U. S. District Court to admit to bail a contractor or inspector, amenable to trial by court- martial luider the then existing law, and arrested with a view to trial thereby, — is no longer ojierative. BOARD or SURVEY. 125 (though in this, indeed, it does not differ from a court of inquir}',) may present two or more reports where they cannot concur in one. XLI, 207. [See One Hundred and Nine- teenth Article § 2.] 2. As a court of inquiry cannot be ordered in a case of a civilian, a body of officers convened to inquire into and report upon the facts of the case of an officer who has been legally dismissed from the service, is a mere board of investigation, and can exercise none of the special powers of a court martial or court of inquiry. XLI, 2G3. BOARD OF SURVEY. 1. A board of survey is not a court, and can not legally exercise the powers expressly vested by statute in courts- martial or courts of inquiry. XXXIY, 30G. It is no part of the province of a board of survey to convict of crime. Where such a board, in fixing upon {jn officer a pecuniary responsi- bility for the loss of certain subsistence stores, expressed in- cidentally the opinion that the same had been stolen by a certain soldier, held that this opinion could not operate as a finding of theft, or constitute authority for the stoijping against the pay of the soldier of the value of the stores. XLII, 605. 2. There is no statute or regulation authorizing the swear- ing of a board of survey or its members, nor indeed is it nec- essary or suitable that such a body, not being a court, should be specially sworn. A board of survey, moreover, has no legal capacity to swear persons attending before it as wit- nesses; nor is it within the province of an executive order to authorize such a board to administer an oath either to itself or to a witness.^ Y, 590 j XXXIII, 518, 5GI5' XXXiV, 305. 3. A board of survey, though it may not swear witnesses, may receive and file with its report affidavits taken as pre- scribed in par. 1031 of the Army Eegulations. Y, 590. But such a board would not in general be justified in charging a soldier with the value of public iiroperty lost or damaged, upon the affidavit alone of an interested party — as, for exam- ^ See opinion of Judge Advocate General published in fidl in G. O. 08, War Dept., 1873. 126 BOND. pie, the officer respoDsible in law for such property. XXY, 663. 4. Under pars. 1019 and 1020, Army Eegulations, the pro- ceedings of a board of survey are not " complete " till they receive the approval of the convening authority. If in fact disapproved by him they are made inoperative, and cannot properly be received as vouchers or form the basis of a charge against the account of an officer or soldier. XXXIV, 413. 5. The i)rovision of par. 1027 of the Army Eegulations relative to the assessing by a board of survey of the value, &c., of property lost or damaged by a soldier, is not to be rega;rded as done away with, (solar as regards a loss of or dam- age done to the '' horse, arms, clothing or accoutrements " of a soldier,) by the provisions of the Seventeenth Article of war. The value, «&c., is to be assessed by a board as indi- cated by the regulation, except where a court-martial is con- vened in the case. Where that is done, it is the court which is to fix the amount of the loss or damage. XXXVII, 352. [See Seventeenth Article § 2.] That a court of inquiry may have passed upon the question of merits and respousibility in the case cannot affect the authority of the x)roper commander to order a board of survey for the i)urposes of making the assessment indicated by par. 1027. It is no part of the province of a court of inquiry to make such assessment ; the same must therefore be made by a board of survey unless a court-martial be ordered under Art. 17. A court-martial is not in general ordered except where one is demanded by the i^arty according to par. 1027, or the circumstances are such as to make it desirable that he should be punished as an offender. XXXVII, 417. BOND. I. Of disbursing officer,^ and generally. 1. The bond should of course be executed by all the par- ties — obligor and sureties. XXXVII, 573. As to sealing^ it ^ Here may be noted the opinion of the Attornev Gen- eral of June 8, 1878, (XVI Opins. ^ ,) that the giving of bond is not necessary to entitle persons appointed to office in the army lequiring the disbursement of money, to begin to receive pay, but that they are entitled, like other officers, BOND. 127 is not specifically required by the Army Eegulations (pars. 989, 990,) tbat disbursing officers' bonds shall be under seal; and, in the absence of such requirement, it certainly is not necessary that the signatures to a bond should be accompanied by formal seals when executed in a State in which such seals are dispensed with by statute. Moreover, it has been held by the IJ. S. Supreme Court ^ that an official bond, though with- out seals, may be good as a contract at common law. As seals, however, are still required or in use in some of the States, and to avoid any questions that might arise from the absence of a seal, advised^ (February, 18G8,) that whatever be the law, as to the use of seals, of the State or States in which the contracts of the obligor, or sureties, are actually entered into, formal seals " of wax or other adhesive substance," be in all cases required to be affixed by the subscribing parties.- XXYI, 471 ; XXXIV, 141, 142 , XXXVII, 573 j XXXVIII, 101. The obligation of each surety must be for the wliole amount of the i)enalty ; the regulation, (par. 990,) requiring that the sureties ^' shall be jointly and severally bound for the whole amount of the bond." So, where the penalty in a quarter- master's joint and several official bond was 810,000, and the sureties, in executing the same, assumed to be bound only in the sum of $5,000 each, the words "for five thousand dollars" being written under each signature — held that the instrument was contradictory, did not conform to the regulations, and should not be accepted. XXVI, 327. And vsimilarly held in a case of a bond with a penalty of $40,000, where the sureties wrote opposite their signatures, respectively, "for 835,000," " for 85,000." XXXIV, 183. Sureties cannot qualify their obligation by thus limiting their i^ersonal liabilities. A bond to the United States cannot be accepted by the Government where the sureties are not bound severally as well as jointly for the entire penalty without condition or qualification. XLIII, 70. There is no statute or regulation prohibiting an officer of the to be paid upon the acceptance of their appointments, accord- ing to par. 1340, Army Eegulations, whether they have at that time furnished their bonds or not. ' United States v. Linn, 15 Peters, 290. - See the requirement to this effect subsequently published in Circular, Hdqrs. of Army, of June 11, 1809. 128 BOND. army from acting as a surety on the official bond of anotlier officer. Such a relation, however, is not one to be favored. XXXIV, 164 5 XXXVIII, 659. A married woman may be accepted as surety on a bond if her contract is executed in a State, c&c, where, by statute, a woman, though married, is authorized to enter into contracts and hold property in her own right precisely as if she were single. XXXVII, 364, 423. A statement should properly be added in the affidavit of a female surety to the effect that the affiant is worth the sum specified m her oion right. XLII, 505 j XLIII, 168, 176. A bond cannot be extended beyond the period of the orig- inal obligation so as to continue to bind the sureties, with- out their consent. XXX, 270. Xor can an expired bond be revived so as to bind the sureties without their consent. XXXI, 135. The Secretary of War, (or President,) has no power to release the sureties in an official bond from their liability to the United States.^ XLI, 160. A neglect by the Government to institute suit on a bond does not discharge the sureties; laches not being in such cases imputable to the United States.^ XXX, 270. Par. 990 of the Regulations contemplates plural sureties with bonds of disbursing officers. A justification of a surety, however, is no part of the bond, (XXVI, 327 ; XXXVIII, 418,) and as the object of the justification is to satisfy the Secretary of War that the surety is good for double the pen- alty, the Secretary, wliere am^^ly satisfied that one certain person offered or executing as surety is pecuniarily sufficient for such amount, would be authorized to accept him, (on his I)roperl3^ justifying,) as sole surety, and to waive any further surety or sureties with the instrument. A subordinate of course can have no such authority. In view, however, of the terms of the regulation and of the practice under it, this authority would of course most rarely be exercised in cases of disbursing officers' bonds. XXXVIII, 418 ; XLI, 169. Of two or more sureties to an official bond, each, according to the regulation, should justify separately; a justification in joint form is irregular and imi)roper. XXXIII, 273; XXXVIII, 101. An affidavit of justification should properly be expressed in the first person ; not in the third. XXXVII, ' VII Opins. of Attys. Gen. 62. •^ United States v. Kirkpatrick, 2 Wheaton, 720. BOND. 120 567. The sureties should personally sign each his own separate affidavit: an affidavit signed only by tlie notary or other official administering the oath is Irregular. XXXI Y, 147, 271, 337. Where the affidavit has been taken and executed, it is not regular for the obligor, even with the assent of the surety, to modify it in a material particular — as, for examjole, in the amount stated ; where there is error, the proper course is for the surety to justify anew. XXXIV, 337. Stamps are not now required for bonds or for certificates of justification j the same having been done away with by the act of June 6, 1872, c. 315, s. 36. XXXIY, 575. II. Of contractor. 2. The general rule that bonds given to the United States should be under formal seal, ai)X)lies with particular force to contractors' bonds. ' XXVIII, 680. 3. Where a contractor offered a bond, subscribed, as sure- ties, by his two daughters, whose ages, as well as pecuniary relations to the obligor, were not known or stated, advised that to accept such a bond would be a bad precedent. XXXIX, 518. 4. Where the sureties to the bond of a contractor, who had failed to i)erform his contract, applied to be discharged from their obligation on the ground that they had been induced to enter into the bond by false representations made to them by the contractor, held that the Secretary of War had no au- thority, upon such or other ground, to release sureties who had become legally liable to the United States. ^ XXXVII, 275. 5. A contractor for "i^ersonal services" (see Contract § 11,) is not in general required to give a bond. XXX VIII, 238. ^ A regulation to this effect is now prescribed in G. 0. 10, Hdqrs. of Army, 1879 — republished and amended in G. O. 72 of 1879 and 40 of 1880. And see the same Orders for general regulations in regard to bonds of contractors and bidders; also Contract § 11, infra. In the recent river and harbor appropriation Act, of June 14, 1880, an additional and special condition is required in the bonds of contractors performing work under the Act. -See VII Opins. of Attys. Gen. 62; and compare Con- tract § 22, infra. 9d 130 BOND. III. Of bidder. 5. Held., in view of the iirovision on the subject of the Act of April 10, 1878, that bidders for contracts, from whom bonds were required, should properly bind themselves not to with- draw their bids within sixty days from the date of the open- ing of the bids. In the great majority of cases, indeed, bids will be required to be kept open but for a brief period, since the contract will generally be awarded at once or in a few days. Oases, however, may occur where, owing to questions raised as to the legality or regularity of bids, the comi^etency of bidders, «&c., a considerable delay may be incurred before the decision of the proper superior can be obtained or the difficulty be otherwise removed. It was no doubt for cases of this nature that the provision in regard to time was intended to pro^dde.^ XXXIX, G28. lY. Of College, &c., as required by Sec. 1225, Eev. Sts. G. A bond executed in his official capacity by the i^resident or other officer of an incorjjorated college or university, for the use of which arms, &c., have been issued by the Secretary of War under this Section, cannot i:)roperly be accepted as binding the corporation without evidence that, by the Act of incorporation or otherwise, such officer is legally empow- ered to act for and bind the institution. XXXYIII, 340 j XLI, 409, 647 ; XLIII, 70, 275, 294. 7. The sureties to an official bond given in compliance with this Section should properly be i^ersons unconnected with the institution. XXXVIII, 34; XXXIX, 312. So held, that a bond of this class executed by an officer of the college as obligor, and by the same person, also in his official capacity, and another such officer, as sureties, could not properly be accepted by the Secretary of War. XLI, 499. And similarly held where the official obligor executed also as surety in his ^private capacity. XXXVIII, 340, 354. 8. The obligor and sureties should be bound without condi- tion or reservation. Where a bond offered by a college con- tained a provision to the eflect that to satisfy any liability incurred thereunder, recourse should be had to the prop- erty of the college before the property of the sureties was ^ See the regulation on this subject now prescribed in G. O. 40, Hdqrs. of Army, 1880, p. 17-18. BOND. 131 resorted to, advised that such bond be not accepted by the Secretary of War. XXXYIII, 340. 9. Xo form for the bond being prescribed in the statute, the Secretary of War may, if he deems the security ample, accept a bond with one surety, or he may even accept the bond of the corporation without sureties. In general, how- ever, it will be safer to require sureties ; such a requirement being also in accordance with the general rule governing bonds given to the United States. Sureties to bonds given by colleges should in general be required to justify in the usual manner. XXXIX, 312. 10. Though official bonds have usually been tendered under this statute, the same are not essential. A personal bond ex- ecuted by the president or other officer of the institution, or other person, in a i)rivate capacity, as obligor, may properly be accepted, if the security is deemed sufficient. XLII, 598. Y. Of Governor, for arms, &c., furnished under statute. 11. The Joint Kesolutions of July 3, 1876, and June 7, 1878, authorizing the Secretary of War to issue arms to certain States and to the Territories, provide that the Governor in each case shall ''give a good and sufficient bond for the return" of the arms, &c., or payment for the same. Held that abond given, under these statutes, by a gov^ernor of a Territory whose legislature had pot authorized him to bind the Territory in this manner, could have no further legal effect than as the personal obligation of the governor j that what the statute contem- plated was an official bond j and therefore that a governor's bond, given in the absence of special authority devolved u])on him by the legislature to bind therebj^ the Territory, could not legally be accepted by the Secretary of War. XXXVIII, 167 ; XLI, 467 ; XLIII, 78, 93. And similarly held of a bond given by the governor of a State, upon an issue of camp and garrison equipage under the Joint Eesolution of June 20, 1878. XXXIX, 656. 132 BOUNTY. BOUNTY. 1. Bounty is not jyay^ nor is it properly an " allowance" in the sense in which that term is ordinarily used as referring to the regular pecuniary emoluments of soldiers other than pay.^ X, mi 5 XY, 35G. 2. Under the Act of July 22, 1861, c. 9, s. 5, granting a bounty to all volunteer soldiers honorably discharged after two years' service, held that a volunteer soldier who had served the requisite period could not legally be deprived of bounty unless he had been dishonorably discharged by the sentence of a general court-martial, or in commutation of one. X, 285. [See Fourth Article.] 3. The two years' service required by the Act of 18G1 need not have been continuous service. XI, 500. Xor, if two years' service wa^ rendered, does it affect the right of the soldier to bounty that during a material i^art of the period he was detailed upon and performed a quasi civil duty as a clerk. XXXI, 507. 4. In the absence of any express statutory i)rovisiou for- feiting a soldier's right to bounty where he has been guilty of desertion, held that the mere fact that a desertion had been committed by a soldier at some period of his 4;erm of service could not affect his right to bounty, provided that, having served the requisite period, he was finally honorahly dis- charged. Thus, in repeated cases of deserters, who, after being restored to duty without trial, or upon full execution or remission of sentence — for whether the deserter be brought to trial and punished or not is immaterial — had performed faithful service, and been finally honorably discharged j held that no forfeiture of bounty had been incurred. XII, 139 j ^ The term " allowances," however, when employed in a gen- eral sense, has been regarded as including bounty. Thus see XIII Opius. of Attys. Gen. 197, where it is held that the gen- eral forfeiture of pay and allowances due at the date of the offence, imposed upon deserters by x>ar. 1358, Army Iie§s., embraced instalments of bounty due at the time of the deser- tion ; also United States v. Landers, 2 Otto, 77, where the court goes so far as to hold tbat a forfeiture of ''pay and allowances," imposed hy sentence^ includes bounty. BREACH OF ARREST. 133 XY, 35G ; XVIII, 333 ; XIX, 2C0 ; XXI, G14 ; XXII, G53 ; XXIX, 127 ; XXXVI, 478 5 XXXIX, 413 ; XLIII, 218. 5. lu a case of this class, where a deserter — noted as such in the usual manner, at the time, on the rolls of his com- pany — was restored to duty without trial, and at the end of his proper term was granted an honorable discharge ; held that such discharge was a formal final judgment passed by the government upon the entire military record of the soldier, and an authoritative declaration by it that he left the service in a status of honor ; that, as such, it dispensed altogether with the supposed necessity (in order that the soldier*might obtain bounty) of a removal, by order, of the charge of deser- tion from the rolls, and amounted, of itself, to the removal of any charge or imi)ediment in the way of his receiving such bounty — to which, (having served the requisite period,) he was therefore entitled.^ XXYI, 484. G. Where a veteran volunteer was honorably discharged, not by reason of the expiration of his full term or because his services were no longer required by the government, but because of his promotion to the grade of a commissioned offi- cer, held that he was entitled only to such i^roportion of the bounty and premium specified in G. 0. 191, War Dept., 18G3, as had accrued at the date of his discharge. XII, 548. See FORFEITUEE, II $ 17. STOPPAGE $ 3. BREACH OF ARREST. See SIXTY SECOND ARTICLE $ 6. SIXTY FIFTH ARTICLE. ^ See the similar case of United States v. Kelly, 15 Wallace, 34, in which, in affirming the judgment of the Court of Claims, (5 Ct. CI. E. 47G,) Chief Justice Chase, delivering the opinion of the Supreme Court, quotes this ruling as that of " the able lawyer tcho Jills at irresent thex^ost of Judge Advocate General,''^ and adds — " With this opinion ice entirely concur.''^ 134 BKEVET RANK. BREVET RANK. 1. Brevet rank can, properly, neither be conferred, nor take effect, except as an incident to full rank of a lower grade. XXI, 608. 2. In view of tbe repeal, (by the Act of March 1, 1869,) of the old 61st Article of war, (which did away also with the portion of par. 10 of the Army Eegulations which was de- rived* therefrom,) an officer, except where specially assigned to duty according to his brevet rank by the President, is no longer entitled to precedence on courts-martial or otherwise by reason of his brevet rank. XXXY, 447. 3. Keld that a confirmation by the Senate, on March 3, 1869, of a brevet appointment previously made, was of no effect and conferred no right to a brevet commission ; Con- gress having, two days before, by the Act of March 1, 1869, c. 52, enacted that " from and after the passage of this Act commissions by brevet shall only be conferred in time of war." XXXIX, 209. 4. Under the i:)resent 72d Article, a colonel commanding a geographical department cannot convene a general court- martial unless assigned to such command according to a bre- vet rank, held by him, of general. XXXYIII, 156 -, XLI, 496. 5. Under Sec. 1211, Eev. Sts., an officer may legally be as- signed to duty according to his brevet rank for a special command or duty, and in such case the assignment will not be effective generally, but only for the purposes of such com- mand or duty and during its continuance. Thus held that an officer assigned to duty according to his brevet rank '' while in command of" a certain department, could legally exercise the authority and i)rivileges of such rank only when holding such command, and for the purposes of the same. XLII, 21. 6. When an officer has been duly assigned to duty or com- mand according to a certain brevet rank, that rank becomes his actual military rank for the period of the assignment. He is emi)owered to exercise the authority which belongs to such rank under the circumstances, to wear the uniform, and to be addressed by the title, of such rank, &c. Jleldj however, that a colonel, assigned to command according .to a brevet BURGLARY. 135 rank of general, was not entitled to the aids-de-camp of a general, (major or brigadier,) but, as indicated in par. 35, Army Kegulations, could be " allowed" the same only " with the special sanction of the War Department'' — in other words, by the authority of the Secretary of War. XLII, 21. See volunteers $ 3. BRIGADE. See seventy-third ARTICLE. ONE HUNDRED AND FOURTH ARTICLE $ 6. BURGLARY. Burglary at common law is the breaking and entering of a dwelling in the night time with a felonious intent. Where a soldier was brought to trial ui)ou a charge of " Burglary," with a specification setting forth that he entered the quarters of an officer in the night, through an open window, with intent to steal, held that, although the offence described was not a burglary in law — the essential element of a breaking being wanting — the charge and specification, taken together, made out a sufiicient pleading of a disorder to the prejudice of good order and military discipline, under the 62d Article of war.^ XXXVIII, 391. And similarly lield of an offence charged as " burglary," but described in the specification as consisting in the breaking and entering of a post trader's store in the day time. XXX, 548. [See Sixty Second Ar- ticle § 8 ; CHARGE §6.] ' See G. 0. M. O. 205, Hdqrs. of Army, 1876. 136 ' CADET. c. CADET. 1. An unemancipated minor can acquire no residence dis- tinct from that of bis father or parent.^ So held that minors whose fathers resided in certain States and congressional dis- tricts, could not, by removing to and abiding in other States or districts, acquire such an 'actual residence' therein as to render them eligible for appointment as cadets under Sec. 1315, Eev. Sts.2 XXIX, 83 j XXXI, 313. 2. Heldt\\iit a minor whose father was a foreigner domiciled in Cuba, and who was himself commoraut in the United States only for thepuri^ose of being educated, was not eligible for appointment as a cadet from a congressional district. XXXY, 44(3. 3. Held that the mere fact that an officer of the army was on duty under military orders in a certain Territory, did not make his minor son eligible for appointment as a cadet from such Territory, the fact of the father's being thus on duty not being sufficient evidence of his being a resident therein. XXX, 528. [See Residence.] 4. In view of the provision of the Act of 1843, incorporated in Sec. 1315, Rev. Sts., that '' the corps of cadets shall consist of one from each congressional district," &c., it has been cus- tomary, though the same is not required by law, for the Pres- ident, in appointing cadets from congressional districts, to appoint them \\\)om the nomination of tlie members of Con- gress representing such districts in the House of Representa- tives. But where a member of the Forty Sixth Congress, representing a certain numbered district of a State, nominated for appointment as cadet a resident of a county not within * See Crawford v. Wilson, 4 Barb. 505; Brown v. Lynch, 2 Bradf. 214 ; Wheeler v. Burrow, 18 Ind. 14 ; Hiestand v. Kims, 8 Blackf. 345; Aliens. Thomasen, 11 Humph. 53a; Hardy v. De Leon, 5 Texas, 211 ; Story, Coullict of Laws, sec. 4G. 2 This opinion is concurred in by the Attorney General, in XIII, Opins. 130. CADET. 137 sucli district as previously constituted, but within a new dis- trict having indeed the same number but constituted mostly of different counties, and which had been created by the State legislature in a redistrictiug of the State since the election of such member, held, (Aj)ril, 1880,) that such nomi- nation could not properly be accepted by the President as a basis for au appointment. This, for the reason that the mem- ber, at the time of the nomination, did not rei)resent the new district containing the said county, but said district was in fact represented in Congress by no one, and could not be so represented till March 4, 1881, when the Forty Seventh Con- gress would commence to exist.^ XLII, 601. 5. The State of Ohio having been re-districted by an Act of its Legislature, held^ (June, 1875,) — 1, That the cadets now at the Military Academy appointed from congressional districts of Ohio, should, where the numbers of their districts had been changed, be credited to the new districts, so as to appear on the list as representing the districts now actually including the towns, &c., which were their places of residence when appointed : 2, That existing conditional appointments made under Sec. 1317, Eev. Sts., providing that such appoiut- ments shall be made one year in advance of admission to the Academy, and which accordingly had been made prior to the re-districting, were valid and should stand; the appointees being deemed entitled to admission at the designated time, subject to the prescribed conditions : 3, That future appoint- ments should be made according to the districts as newly established and numbered 5 any increased delay that might thus be caused in the falling in of vacancies for appointments for particular districts being but a necessary result of the new legislation. XXXIX, 575. 6. A party was duly nominated and ai>pointed as a cadet for a certain congressional district one year in advance agree- ably to Sees. 1315 and 1317, Eev. Sts. Later, anoth'^r party was, by the same member of Congress, nominated for a ^;/'o- msional appointment, — l. e., an appointment in the event of the regular nominee being found disqualified or failing to pass the examination, — and was appointed accordingly. Sub- sequently, the regular nominee having resigned his appoint- ^ Compare opinions of Attorneys General referred to in note to Contract § 10. 138 CAMP FOLLOWER. ment, a third person was nominated in his stead by the same member, and, (nnder Sec. 1317, Eev. Sts.,) appointed to fill the vacancy. Held that this appointment was a valid one, and that the provisional appointee had no legal claim to have received the same. The statute law does not recognize such ^^pro- visional" ai)pointments J the same being resorted to in the prac- tice of the War Department, as a matter of convenience, in order that there may be a person at hand to take the i^lace of a regular nominee who may fail at the last moment, and the embarrassment of a vacancy occuring at that time be thus as far as possible avoided. The provisional ai^pointee was not entitled to be substituted for the regular appointee on his resignation, and not having been so substituted, but another I)erson havln g been selected, he remained with i^recisely the claim which he had originally, viz.^ to present himself for examination and api>ointment in case the regular nominee was not accepted, the only difference being that the regular nominee had meanwhile been changed. XLII, 162. 7. Where a regular appointee as cadet, having resigned, was again nominated to till his own vacancy, the same not having meanwhile been filled by the appointment of another, lield that the President was empowered, under Sec. 1317, Kev. Sts., to re-ai)i)oint him. XXXI, 195. 8. Cadets are amenable to trial by court martial for violations of the Kegulations of the Academy, as ^' conduct to the preju- dice of good order and military discipline.'" XXXYI, 129. 9. In view of the provisions of Sec. 1325, Eev. Sts., deemed a constitutional exercise by Congress of the power to " raise armies," (and so to determine of what they shall consist,) held that the President would not be empowered to reap- l^oint a cadet, discharged as deficient ui^on the recommenda- tion of the Academic Board, except under the conditions indicated in the Section. XLIII, 372. See pay AND ALLOWANCES ^ 14, note. CAMP FOLLOWER. See sixty-third ARTICLE § 1. POST TRADER M, 4. ^In this connection may be noted the opinion of the Solici- tor General of July 10, 1877, (XV Opins. — ,) that, except for the offence of hazing, specially made punishable by the Act of June 23, 1874, cadets of the Xaval Academy are not sub- ject to trial by court martial. CAPTUEED PROPERTY. 139 CAPTURED PROPERTY. 1. It is a general principle that captured property of an enemy with whom we are at war accrues to the United States. The application however of this principle during the late civil war was afl'ected by the operation of certain Acts of Congress. Personal i^roperty, indeed, of the Confederate States, or of one of them, became on capture by the federal forces, the property Jwre belli of the United States. So the title to their real estate, occupied by the U. S. Army at some period of the war and held till its end, was completed in the United States by the subjection and dissolution of the hostile government, and became i)ublic property, subject to the dis- position of Congress. But real estate of individual enemies, (including x)rivate corporations,) while subject to be sold, &c., under the Act of July 2, 18G4, could not in general become vested in the United States except through the judgment of a comi)etent court confiscating the same upon proceedings instituted under the Act of July 17, 1862. As to the per- sonal property of individuals, this, (though in some instances made the subject of proceedings for confiscation,) was mostly disposed of by and under the Act of March 12, 1863, known as the '^Captured and Abandoned Property Act," by which such property, (except munitions of war and other material used or intended to be used in prosecuting the war against the United States, and which were of course subject to seiz- ure by the army and became on capture the property of the United States,) was required to be collected, sold, and the proceeds paid into the Treasury, subject to the claims therefor of parties who should establish their ownership of the proi>- erty and the fact that they had not " given aid or comfort to the rebellion."^ XVIII, 511 ; XIX, 162 ; XXIII, 90 ; XXVI, 160 5 XXYIII, 610; XXIX, 6, 364 j XLII, 510 j XLIII, lU. ^ See, under this paragraph, United States v. Padelford, 9 Wallace, 538; United States v. Klein, 13 Id. 136; United States V. nuckabee, 16 Id. 411; Haycraft v. United States, 22 Id., 81; Lamar v, Browne, 2 Otto, 187; Williaois v. Brufi'y, 6 Id. 188; Young v. United States 7 Id. 60; Ford v. Sui^get, Id. 594; Johnson v. Dow, 10 Id. 158; Porte v. United 140 CAPTURED PROPERTY. 2. Held that the property of enemies^ captured jure helU in a civil war, did not belong to the class of property indicated in Art. Y of the Amendments to the Constitution, the taking of which "for public nse without just compensation" is pro- hibited. XXX, 231. 3. Held that a claim, by an individual, for rent for the use and occupation by the United States, of captured real estate, for an alleged unreasonable period after the end of the war without commencing proceedings for confiscation, could not be allowed by an executive officer or department, (see Claims § 9 ;) and that, as such a claim would not be within the juris- diction of the Court of Claims,^ the same could be enter- tained only by Congress. XLII, 232. 4. The owner of property captured jure belli is not entitled to recover its value under the provisions of Sec. 3483, Kev. Sts., as being i)roperty impressed in the military service.^ XXXVIII, 47G. 5. A loyal owner of property captured by the enemy dur- ing the war, and afterwards recaptured by the federal forces, may have the same turned over to him by executive authority, where clearly identified as belonging to him, and should in general be allowed to receive it free from any charge in the nature of salvage.^ In a case, however, in which extraordi- nary exi)ense has been incurred in saving the proi^erty, which the owner should equitably pay or contribute to, the Secretary of War would not properly take action in the absence of spe- cific authority from Congress. I, 424, 428, 45G; XI, 2GGj XX, 485. [Salvage § 2.] G. Held that a civihan into whose hands had come, at the end of the late war, certain captured personal property of the enemy, was not entitled to convert it to his own use, or to demand compensation as a condition of its surrender to the U. S. authorities. XXI, 479. [See Xintii Article.] States, Devereux, 1-09 ; Winchester v. United States, 14 Ct. CI. 13; United States v. A Tract of Land, 1 Woods, 475; At- kinson V. Central Ga. Mfg. Co., 58 Ga. 227. ^ See Sec. 1059, Eev. Sts. ; Bishop v. United States, 4 Ct. CI. 448 ; Slawsou v. United States, IG Wallace, 314. ^As to the distinction between capture and impressment, see XI Opins. of Attys. Gen. 378. 3 See Wilson v. United States, 4Ct. CI. 559. CASHIEEING— CESSION OF JUEISDICTION. 141 CASHIERING. Cashiering and dismissal were once quite distinct punish- ments in military law ; the former involving, in addition to a dishonorable separation from the service, a disability to hold public office ; and this difference was illustrated by the fact that cashiering was sometimes mitigated to dismissal.^ All distinction, however, between the two forms has long since ceased to exist in our law ; cashiering with us meaning noth- ing more or other than dismissal. A sentence '^ to be cash- iered" — now a rare form— is equivalent. to a sentence to be dismissed the service.^ lY, 533 5 VIII, GOl 5 XXIY, 5G3. CERTIFICATE OF MERIT. Keld, under Sec. 121G, construed in connection with Sec. 1285, Rev. Sts., that the President was authorized to grant a certificate of merit only to a soldier belonging at the time of the grant to a regiment of the army ; that he was not empow- ered to grant such a certificate to a discharged soldier and civilian, on account of services rendered while he was a sol- dier.3 XLI, 1G8. CESSION OF JURISDICTION. 1. The mere fact of its being the owner of land situated within a State does not entitle the United States to exercise exclusive jurisdiction over the same or of offences committed thereon,^ nor does the fact that the land has been duly reserved ^ See Hough, (Practice,) 123-130 ; James, 377 ; Simmons, § IIG; Maltby, 89, 92; O'Brien, 274-5; II Opins. of Attys. Gen. 280. ^In the code of 1871 the term '^cashiered'' has been retained, apparently by inadvertence, in two Articles, the 8th and 50th. ^See, to a similar effect, the opinion of the Attorney Gen- eral of Mav 0, 1878, (XVI Opins.— ;) also the subsequent G. O. 28, Hdqrs. of Army, 1878. * United States v. Stahl, 1 Woolworth, 192, and McCahon, 20G ; Ex parte Sloan, 4 Sawyer, 331-2 ; Clay v. State, 4 Kans!' 142 CESSION OF JURISDICTION. for military purposes confer such authority.^ Where the United States is the proprietor of the land at the time of the admission of the State, it may obtain such exclusive jurisdic- tion, by expressly reserving the same to itself in the Act of admission. Where this has not been done, or where the land has been purchased or otherwise acquired by the United States subsequently to the admission of the State, exclusive jurisdiction over the same can be vested in the United States only by an act of cession of such jurisdiction on the part of the State, or by the State's giving its consent to the "jmrchase"^ by the United States. [See the terms of the provision of § 17, sec. 8, Art. I of the Constitution.^] A mere consent by a State, through its legislature, to the " purchase" by the United States of land within its limits is as operative for the purpose of vesting the exclusive jurisdiction as is an express cession of the same.^ XLII, 514, 524 ; XLIII, 234. 2. Sec. 355, Eev. Sts., relating to the expending of public money on land acquired hj the United States within the 49. Much less does the mere fact of its being the occupant of the land give it this authority — as where it occupies land as a camp. United States v. Tierney, 1 Bond, 571. ^See the three first cases cited in last note. The fact that the person against whom the offence has been committed— as the person killed in a case of alleged murder — is an employee of the United States, adds nothing to its jurisdictional au- thority, ^w parte Sloan, supra, ^Tbe term "purchase," as emi^loj^ed in the constitutional provision, (and also in Sec. 355, Eev. St§., based thereon,) includes any mode by which the United States may acquire title, whether by original ownership, subsequent donation, or purchase in the ordinary acceptation of the term. See JSoc parte Hebard, 4 Dillon, 384 : Vll Opins. of Attys. Gen. 114, 121. ^That the term "exclusive legislation," employed in the Constitution, is equivalent to exclusive jurisdiction, or rather that exclusive jurisdiction is a necessary incident of exclusive legislation, — see VI Opins. of Attys. Gen. 578 ; United States V. Cornell, 2 Mason, 00 ; Ux parte Sloan, 4 Sawyer, 331. *See United States v. Cornell, 2 Mason, GOj VI Opins. of Attys. Gen. 578 ; YII Id. 028, 029 ; VIII Id. 30, 104, 387. A State may give such consent by a single general Act, i)ros- pective in terms, and covering all cases of future purchases by the United States. Note, for exami)le, the Act of the Leg- islature of Texas of Ai)ril 4, 1871, remarked upon in the opin- ion of the Attorney General of April 10, 1878, (XV Opins. — .) CESSION OF JURISDICTION. 143 States, requires tliat the United States shall obtain from the State a cession, (by consent to the ''purchase,") of exclusive jurisdiction over such land, only when the land is to be im- proved by the erection of a public building or structure.^ Held that permanent dams and locks of stone and timber might properly be regarded as within the description of the structures embraced by this statute. XLII, 524. 3. Where a State statute, in consenting to the purchase by the United States of land within the State and ceding to the United States jurisdiction over the same, added that such jurisdiction should be exercised '^concurrently wiW the State, held that this qualification was subject to the objection that it amounted to more than the mere reservation, (not unfrequent,) of the right to serve upon the land legal process for acts done and crimes committed outside of the same, and should therefore be regarded as inconsistent with a grant of exclusive jurisdic- tion to the United States over such land ; ^ further that it so far qualified the consent given to the purchase as to make it at least doubtful whether, in view of the provisions of Sec. 355, Eev. Sts., the Secretary of War would be authorized to ex- pend an api^ropriation which had been made by Congress for the erection of public buildings on the land. XLIII, 197. 4. But where a State statute, in ceding jurisdiction to the United States over certain lands purchased Avithin the State by the authority of Congress as sites for public structures, added — " But the State reserves the right to execute process lawfully issued under its authority withni and ux)on said sites," &c., advised that such reservation might properly be regarded as having the same efl'ect as that indicated by Atty. Gen. Cush- ing in VIII Opins., 387, viz., as reserving merely the right to serve j^rocess icithin the lands for acts done and crimes com- mitted ivithout the same, (so as to i)revent them from becom- ing an asylum for fugitives from justice,) and that the cession might therefore j)roperly be accepted as sufficiently vesting in the United States the exclusive jurisdiction over the prem- ises contemx^lated by the Constitution and by Sec. 355, Eev. Sts. XLII, 569; XLIII, 234. ^See Public Property — Disposition of § 5, note 3, infra, 2 See United States v. Cornell, 2 Mason, 00; United States V. Davis, 5 Id. 350; YI Opins. of Attys. Gen. 578; YII Id. 634; y III Id. 30, 102, 417. 144 CHALLENOE— CHAPLAIN. 5. The effect of the possession by the United States of ex- clusive jurisdiction over land in a State, occupied for public puri^oses, is i^ractically to withdraw the persons stationed or residing within the same from the civil and criminal jurisdic- tion of "the courts of the State, and from liability to the pro- cess of the same, (except so far as may legally have been reserved by the State — see § 4, supra^) as well as from taxa- tion and other burdens of citizens of the State. On the other hand, such i)ersons are not entitled to enjoy any of the privi- leges of such citizens, as the privilege of voting, of the use of the public schools, of the protection of the police,^ &c, XXI, 5G7 5 XXXIII, 8; XXXIX, 151. See civil PEOCESS § 4. NATIONAL CEMETERY § 2, 3. TAX $ 3, note. CHALLEl^GE— TO FIGHT A DUEL. See twenty SIXTH ARTICLE. CHALLENGE— TO MEMBER OF COURT. See seventy NINTH ARTICLE § 1. EIGHTIETH ARTICLE ^ 6. EIGHTY EIGHTH ARTICLE. ONE HUNDRED AND FIFTEENTH ARTICLE $ 4. CHAPIAIH. See SEVENTY FIFTH ARTICLE $ 1. JUDGE ADVOCATE ^ 2. ^ See, on this general subject, the following as the principal authorities : United States v. Travers, 2 Wheeler C. 0., 490 ; Do. V. Tierney, 1 Bond, 571; Do. v. Stahl, TV^oolworth, 192, and McCalion, 20G; Commonwealth v. Clary, 8 Mass., 72 5 Mitchell V. Tibbetts, 17 Pick., 298; Opinion of Justices, 1 Met., 580; State V, Dimick, 12 X. Ilamp., 194; People v. Godfrey, 17 Johns., 225 ; Do. r. Lane, Edmonds, IIG ; Commonwealth v. Young, Bright, 302 ; In re O'Connor, 37 Wise. 379 ; Clay v. State," 4 Kans., 49; Painter v. Ives, 4 Neb., 122; VI Opins. of Attys. Gen , 577 ; VII Id., 028 ; VIII Id., 30, 102, 387, 418. In this connection, note a recent opinion of the Attorney General of February 7, 1880, (XVI Opins. — ,) that whether a superintendent of a national cemetery can legally be required to work ui)on the i)ublic roads of the State (in comi^liance CHARGE. 145 CHARGE. 1. In our practice, unlike tliat of the English courts-martial, a military charge properly consists of two parts — the tech- nical "Charge" and the "Specification." The former desig- nates by its name, particular or general, the alleged offence ; the latter sets forth the facts supposed to constitute such offence. An accusation against an officer or soldier, not thus separated in form, would he irregular and exceptional in our practice, and, till amended, would not be accepted as a i>roper basis for proceedings under the code. YII, COO. 2. The same particularity is not called for in military charges which is required in indictments.^ The essentials of a charge are : 1. That it shall be laid under the proper Article of war or other statute ; 2. That it shall set forth (in the with a law of the State requiring all male citizens between certain ages to perform such work,) must depend upon whether he resides upon land acquired by the United States over which the State has parted with its jurisdiction ; that if the jurisdiction over the cemetery grounds within which the super- intendent resides has been surrendered to the United States, he is exempt from such obligation. ^ In regard to the proper form for a military charge, Atty. Gen. Gushing, (VII Opins., 603,) says: "There is no one of exclusive rigor and necessity in which to state military accusa- tions." lie adds further: "Trials by court-martial are gov- erned by the nature of the service, which demands intelligible precision of language, but regards the substance of things rather than their forms. * * * The most bald statement of the facts alleged as constituting the offence, provided the legal offence itself be distinctively and accurately described in such terms of precision as the rules of military jurisprudence require, will be tenable in court-martial proceedings, and will be adequate ground- work of conviction and sentence." So it is observed by Atty. Gen. Wirt, (I Opins., 280,) that " all that is necessary" in a military charge is that it be "sufficiently clear to inform the accused of the military offence for which he is to be tried, and to enable him to prepare his defence." And see Tytler, 209; Kennedy, Of). It is ably remarked by Gould, (Pleading, j^. 4,) that "all pleading is essentially^ a logical process;" and that, in analyzing a correct pleading, "if we take into view, with what is expressed, what is neces- sarily supposed or implied, we shall tind in it the elements of a good syllogism." But it can hardly be expected that military charges in general will stand this test. 10 D 146 CHARGE. specification) facts sufficient substantially co constitute tlic particular offence. These essentials being observed, the sim- pler, and less encumbered with verbiage and technical cerms the charge is, the better, provided it be expressed in clear and intelligible English. However inartificial a pleading may be, it will properly be held sufficient as a legal basis for a trial and sentence, provided that the charge and specification, taken together, amount to a statement of a military offence either under a specific Article or under the general Article, No. 62. [See § 6, infra.] XXYI, 551 -, XXYII, 521. 3. There can be no legal objection to charging an offence as a ''Violation of" a particular Article of War, although, in general, it will be preferable to charge it by its familiar and received name — as "Drunkenness on duty," ''Misbehavior before the enemy," "Desertion," &c. Y, 77; YII, 457. 4. Where an offence is clearly defined in a specific Article, it is irregular and improper to charge it under another specific Article. So, where the Article in which the offence is defined makes it punishable with a specific punishment to the exclu- sion of any other, it is error to charge it under an Article, such as the 62d, which leaves the punishment to the discre- tion of the court. II, 51; XI, 312; XIY, 599; XX, 533; XXYIII, 575. On the other hand, it is equally erroneous to charge under a specific Article, making mandatory a j)artic- ular x^unishment, an offence properlj^ charged only under Art. 62. I, 463; XXYII, 413; XXYIII, 575. 5. For some time after the enactment in 1874 of the present new Articles of War, charges were not unfrequently laid under Articles by their old numbers — as "Yiolation of the 9th," (old number,) instead of the 21st, (new number,) "Article," or "Sleeping on post, in violation of the 46th," (old number,) instead of the 39th, (new number,) "Article." Held, in such cases, that the error was one which could only be taken ad- vantage of by an objection in the nature of a plea in abate- ment, — whereupon indeed an amendment could at once be made, — and that, in the absence of such objection, the mistake was to be treated as iui material after finding and sentence. XXXYII, 313; XXXYIII, 495, 552. 6. Where a specific offence is cliarged, {i. c, an offence made punishable by an Article other than the general — 62d — Article,) and the specification does not state facts constituting CHAEGE. 147 such specific offence, the pleadiDg will be insufficient as a pleading of that offence. Legal effect may, however, he given to a pleading if the charge and specification taken together amount to an allegation of an offence cognizable by a court martial under Art. 62. And in all cases, — whatever be the form of the charge or specification, — if the two are not incon- sistent, and, taken together, make out an averment of a neglect or disorder punishable under this general Article, the pleading will be sufficient in law and will constitute a legal basis for a conviction and sentence. XI, 491 ; XY, GSO; XVI, 551. [See Sixty Second Article § 8.] 7. It is illogical and faulty pleading to charge a secondary offence in lieu of the actual or principal offence, of which that charged was merely a consequence or incident. XXYII, 446. But where the act committed involves several distinct offences, the party may properly be arraigned upon the same number of separate charges. XXX, 489. And all the offences with which an officer or soldier may be at one time chargeable, should, if practicable, (and if the same are sufficiently grave,) be charged and brought to trial together. XIY, 40. Undue multiplication, however, of charges, or forms of charge, is to be avoided : thus charges should not in general be added for minor offences Avhich Avere simply acts included in and going to make up graver offences duly charged. XY, 441. It may, indeed, sometimes be expedient where the offences are slight in themselves, and it is deemed desirable to exhibit a con- tinued course of conduct, to wait, before i^referring charges, till a series of similar acts have been committed, provided the period be not unreasonably prolonged ; but in general charges should be preferred and brought to trial immediately or pres- ently upon the commission of the offences. Anything like an accumulation^ or saving up, of charges, through a hostile anim us on the part of the accuser, is discountenanced by the senti- ment of the service.^ XII, 348. 8. The prosecution is at liberty to charge an act under two or more forms, where it is doubtful under which it will more proi)erly be brought by the testimony.- In the military prac- tice the accused is not entitled to call upon the prosecution ' See G. 0. M. O. 71, Hdqrs. of the Army, 1879. ^ '' For the ])uri)ose of meeting the evidence as it may trans phe " State v. Bell, 27 Md. 6'75. 148 CHARGE. to ^^ elecV under which charge it will proceed in such or indeed any case. XXXIII, 306. 9. Where there are two sets of charges against an accused, they should if i^racticable be consolidated, and one trial be had upon the whole, instead of two trials, one ux>on each set. XXX, 265. But after the accused has been arraigned upon certain (*.harges, and has pleaded thereto, and the trial on the same has been entered upon, new and additional charges, which the accused has had no notice to defend, cannot be introduced or the accused required to plead thereto. Such charges should be made the subject of a separate trial, upon which the accused may be enabled properly to exercise the right of challenge to the court, and effectively to plead and defend. XXIY, 577. [As to the further objection to such charges, that the court would not be qualified to try them, under its oath, see Eighty Fourth Article § 2.] 10. Such loose and indefinite forms of charge as "Fraud," " Worthlessness," "Inefficiency," "Habitual Drunkenness," and the like, will be avoided by good pleaders. XIX, 280 j XXVIII, 253; XXXVIII, 640. ' But such charges, in connec- tion with si:)ecifications setting forth actual military neglects or disorders, (not properly chargeable under specific Articles,) may be sustained as equivalent to charges of " Conduct to the prejudice of good order and military discipline." [See § 6 sujpra.] But a charge of " Worthlessness," with specifica- tions setting forth repeated instances of arrests, confinements in the guardhouse, or trials and convictions for slight ofii^nces, of the accused, held an insufficient pleading ; such instances not constituting military offences, but merely the punishments or penal consequences of such ofiences. (What is really called for in such a case is a discharge of the soldier under the 4th Article of War.) XXV, 664; XXVIII, 253; XXXIII, 169, 208, 281, 285, 345, 416. A specification averring a general incapacity induced by habitual intoxication, does not set forth a military ofi'ence. The accused in such a case should be charged with the acts of drunkenness committed, as separate anddistinctinstancesof ofience.^ XXXIII, 458. [See Sixty SECOND Article § 9.j 11. While the fact that a soldier has been repeatedly tried and punished for military offences is not of itself an offence ^ See G. O. 11, War Dept., 1873. CHARGE. 149 for which he can properly be brought to trial, since such a proceeding would be a violation in substance of the 102d Article of War, prohibiting a second trial for the same offence, [see Sixty second Article § 9,] yet where a soldier has committed a certain specific act of offence, there is no legal objection to stating in the specification, in charging it, that the accused has been previously convicted of an offence or offences of the same species. The objection to this form of pleading arises only out of the jirobable difficulty of i^roving the previous con^ictious in case the soldier i^leads not guilty. Our code, unlike the British, has made no special provision for the proof of previous convictions, which would therefore in general have to be shown by the production of copies of the original records, the obtaining of which might entail a considerable delay, «&c., to the prejudice of the interests of the service. Whether, therefore, the fact that the accused has been previously convicted of a similar offence shall be alleged, by way of inducement, in a specification charging a specific offence, may in general, in the present state of the law, well be left to depend upon the further question, whether such allegations can be proved without undue delay, expense, or embarrassment to the service. In our practice it has not been usual to allege prior convictions. XLII, 603. 12. The specification should be appropriate to the charge. A charge of ''Conduct to the prejudice of good order and military discipline," with a specification setting forth a viola- tion of a specific Article, is an irregular and defective plead- ing, and so of course is a charge of a specific offence with a specification describing not that but a different specific offence, or a simple disorder or neglect of duty. XXIY, 198. 13. A mis-naming or mis-description of the rank of the ac- cused in the specification, should be taken advantage of by exception in the nature of a plea in abatement. [See Plea, § 8.] Where not objected to, the error is immaterial after sen- tence, provided the accused is sufficiently identified by the plea, testimony, &c. XXXYII, 482. It is not essential to state in a specification the full christian name of the accused, or other party required to be indicated. Only such name or initial need be given as wiU be sufficient unmistakably to identify the party. XXIY, 299. 14. Where a specification to a charge preferred, by a supe- 150 CHARGE. rior against an inferior officer, instead of referring to the former in the third person, alleged that the accused addressed abusive language to ''???e," and committed an assault upon "me," without naming or otherwise indicating the subject of the abuse or assanlt, held that such a form, though supported by some of the English precedents, was not sanctioned by our i^ractice, and that, on objection being made to the same by the accused, the court would i^roperly either require that the specification be amended, or that, in incorporating the charge in the record, the name of the preferring officer be added. 111,429. 15. Where a specification alleged that the accused was ab- sent without leave at various times between two dates, twenty days apart, held that the same was defective and subject to exception as being double^ each such absence being a substan- tive and distinct offence. ^ X, 471. But where the specifica- tion to a charge of violation of the 60th Article alleged the presentation by the accused of a fraudulent claim for rations furnished for recruits and also for lodgings famished for the same recruits at the same time, held that the specification related to one transaction and was not therefore to be neces- sarily regarded as double or defective, in view of the liberal rules of pleading applicable to military charges. X, 392. IG. A specification, in alleging the violation of an order which has been given in writing, or of any written obliga- tion — as an oath of allegiance, parole, &c. — should preferably set forth the writing verbatim^ or at least state f\x\\j its sub- stance, and then clearly detail the act or acts which consti- tuted its supx)osed violation. Ill, 049. 17. The time and ][)lace of the commission of the offence charged should properly be averred in the specification in order that it may appear that the offence was committed within the period of limitation fixed by the one hundred and third Article, and also within the territorial jurisdiction of a military court. These averments should also be made with ^In the military, as in the civil, practice double charges — i. e. charges setting forth two, (or more,) distinct offences — are properly condemned, and in sundry cases the conviction and sentence have been disapproved on account of the duplleity of the pleadings. See G. 0. M. O. 80, War Dept. 1875; G. O. 3, 83, Dept. of the Missouri, 1863 j do. 49, Dept. of the Ohio, 1804. CHARGE. 151 reasonable certainty in order to enable the accused to under- stand what particular act or omission he is called upon to defend.^ I, 4G3; T, 013; IX, IGO; XXYI, 574. A reason- ably exact allegation of the time is also important in some cases — especially those of desertion and absence without leave — in order that the accused, if subsequently brought to trial for the same offence, or, what is the same thing in law, (see OxE HUXDRED AND SECON^D ARTICLE § 2,) for an offence included in the original offence, may be enabled, (by an, ex- hibition of the record,) properly to plead a former acquittal or conviction of that offence. YII, 348, 513. 18. AThere the exact time or place of the commission of the offence is not known, it is frequentlj^ preferable to allege it as having occurred ^'on or about ^^ a certain date or time, or "af or near^^ a certain locality, rather than to aver it as com- mitted on a particular day or between two specified days, or at a particular place. There is no defined construction to be l>laced upon the words ''on or about'' as used in the allega- tion of time in a specitication. The phrase cannot be said to cover any precise number of days or latitude in time. It is ordinarily used in military pleading for the purpose of indi- cating some peilod, as nearly as can be ascertained and set forth, at or during which the offences charged are believed to have been committed — in cases where the exact day cannot well be named. And the same is to be said as to the use of the words '^at or near" in connection with the averment of place. These terms ^'on or about" and "at or near'- are, however, not unfrequently, (though unnecessarily,) employed in practice where the exact time or i^lace is known and can readily be alleged. XXYI, 437. 19. The same exactness in the averment of time is in gen- eral scarcely required, where the offence charged is one of omission^ as where it is one of the commission of a specific act. It is suflicient in the former case to allege that the offence occurred beticeen certain named dates not unreasonably ^ As to the latitude allowable in the allegation of time in military x)leadings, compare I Opins. of Attys. Gen. 295-G. In the civil practice, " nothing is better settled than that proof of guilt is not confined to the day mentioned in the indictment. It may extend back to any period previous to the finding of the bill and within the statutory limit for i^ros- ecuting the offence." McBryde v. State, 34 Ga. 203. 152 CHARGE. separated. XXX, 488. So, an oifence of commission, which probably was not completed, or may not have been completed on any i)articular day, may be similarly charged. Thus Jield that the allegations of time and place were sufiicient in a specification in which it was set forth that the offence charged (which consisted in an improper disposition of public prop- erty) was committed by the accused "while en route between Austin, Texas, and Waco, Texas, between the 5th and 25th days of May, 1867." XXV, 100. But where it was alleged in a specification that the accused was drunk on duty at some time or times during a period of seventy days, Jield that the specification did not give sufiicient notice to the accused of the specific offence which he was required to defend, and was therefore uncertain and insuf- ficient.^ I, 463. 20. Where time or place is omitted to be averred, or is averred without sufiicient definiteness, and the defect is ex- cepted to by the accused on being called upon to plead, the court will properly direct that an amendment be made. But where in either such case no objection is interposed by the accused, the proceedings will be sufiicient in law provided the time and place of the ofience can be made out Vith reasonable certainty from the testimony in connection with the specifica- tions. If otherwise, the proceedings will, Avliere i^racticable, properly be returned to the court for correction, or, where this cannot be done, will, in general, properly be disapproved. XIV, 635; XVI, 298; XX, 280; XXVI, 412. And where the ofience is alleged to have been committed on a particular day, and the evidence shows that it was committed on quite a dif- ferent day, — in such case, provided time is not of the essence of the offence, and the specific act charged is sufiiciently iden- tified by the other testimony, the variance between the alle- gation and the proof will not constitute a fatal defect, and need not induce a disai)i)roval of the sentence where there has been a conviction. A return, however, of the record to the court, for correction, if practicable, would well be resorted to by the reviewing officer before taking final action. XIII, 30' . 21. While it is in general irregular to plead matter of evi- dence, there is no objection to noting in brief in the specifica- ^ Compare cases in G. O. 193, Army of the Potomac, 1862; do. 98, Dept. of Xew Mexico, 1862. CHARGE. 153 tiou tbe immediate result or effect of the act cliarged, as a circumstance of description illustrating the character and extent of the offence committed. Thus while a homicide, if amounting to murder, and capital under Sec. 5339, Eev. Sts., or by the law of the State, &c., cannot as such be made the subject of a military charge m time of peace, (see Sixty Sec- ond Article § 1,) yet a capital homicide, where it has been committed in connection with or as a consequence of a specific military offence charged against the accused, — as, for exam- l)le, '^ Mutiny," or '^ Offering violence to a superior officer," — may properly be stated in the conclusion of the specification, as matter of aggravation and as indicating the animus of the accused or the amount of force employed. XXXIV, 478. 22. Properly to warrant the joinmg of several i)ersons in the same charge and the bringing them to trial together thereon, the offence must be such as requires for its commis- sion a combination of action and must have been committed by the accused in concert or in pursuance of a common in- tent. The mere fact of their committing the same offence together and at the same time, although material as going to show concert, does not necessarily establish it. Thus the fact that several soldiers have absented themselves together with- out leave, will not, in the absence of evidence indicating a conspiracy or concert of action, justify their being arraigned together on a common charge, for they may merely have been availing themselves of the same convenient opportunity for leaving their station. Y, 479 j XII, 439 ; XXIY, 4G8. Desertion, of which the gist is a certain personal intent, cannot i)roperly be charged as a joint offence.^ Where two or more soldiers have deserted together as the result of a concerted plan, they may properly be jointly charged with ^' conspiracy to desert, to the prejudice of good order and mil- itary discipline;" or each, in addition to being charged with desertion, may also be severally charged with engaging in such conspiracy. In the absence of such additional charge, the fact of concert may of course be put in evidence under the charge of desertion as illustrating the animus of the act com- mitted. XXXII, 254, 333 ; XXXIII, 211, 434. ' See G. O. 78, War Dept., 1872, issued by the Secretary of War in accordance with opinions, i^reviously given, of the Judge Advocate General. 154 CHARGE. 23. Military cliarges, tliougli commonly originating with. military persons, may be initiated by civilians : indeed it is but performing a public duty for a civilian, who becomes cog- nizant of a serious oflence committed by an officer or soldier, to bring it to the attention of the proper commander. So a charge may originate with an enlisted man. But, by the usage of the service, all military charges must be formally preferred by, i. e. authenticated by the signature of, a com- missioned officer. Charges proceeding from a person outside the army, and based upon testimonj^ not in the possession or knowledge of the military authorities, should in general be required to be sustained by affidavits or other reliable evi- dence, as a condition to their being adopted. XVI, 423 ; XLI, 672 ; XLII, 202. 24. Any otHcer may prefer charges : an officer is not dis- qualified irom preferring charges by the fact that he is himself under charges or in arrest. I, 407 ; Y, 348 ; XVI, 68. Charges should be i)referred to the authority empowered to convene the court for their trial. XLII, 202. The signing of charges, like orders, with the name of an officer, adding — ^' by the order of" his commander, is unusual and objectionable. Charges, where not signed voluntarily by the officer by whom they are preferred, are, in practice, usually subscribed by the judge advocate of the court. XXXIV, 598. 25. In cases where charges preferred against an officer are apparently susceptible of a reasonable explanation, it is not unusual, especially where the charges are preferred by an inferior against a superior, to afford the officer charged an opportunity to make exi)lanation before it be determined whether to bring him to trial. XX, 12. 26. In general, charges can regularly and properly be ordered to be tried, or transmitted for trial to the court, only by the authority of the officer convening the court, or that of his superior. An inferior to the convening officer cannot properl5^ refer charges to the court for trial except under some specific or general authority received from that officer.^ ^ This rule, though not always insisted upon in practice, has been repeatedlj^ enjoined in express terms by department commanders. See, for example, G. O. 67, Dept. of Arkansas, 1864; do. S6, Dept. of Dakota, 1869; do. 8, Dept. of Tex:as, 1874. CHARGE. 155 The fact, however, that a court has proceeded to the trial of charges, referred to it without due authority by a commander inferior to the one who convened the court, cannot affect the legaUty of the finding or sentence in the case. XXII, 502 ; XXYI, 1G7. 27. A withdrawal of charges constitutes no legal bar to their being subsequently revived and re-preferred. Charges, however, once formally withdrawn, will not in general pro- perly be revived except upon new material evidence being obtained. XI, 202 5 XXYIII, 370. Charges once accepted as a sufficient basis for action, by the commander competent to convene a court for their trial, cannot properly be with- drawn except by his authority. XXI, 50. 2S. How far charges may be amended by the judge advocate before the organization of the court depends mainly upon his authority, general or special, to make amendments. [See Judge Advocate § 10.] After the arraignment, a mendments of form may always be made, with the assent of the accused or by the direction of the court ; and so may slight amendments of substance not so modifying the pleading as to make it a charge of a new and distinct offence. An amendment so sub- stantial as materially to modify the '•' matter'- before the court, will not in general be authorized, (see Eighty Tourth Arti- cle § 2,) and any amendment whatever of substance should be allowed by the court with caution and subject to the right of the accused to apply for a continuance. [See Xi^^ety Third Article § 4.] XXIV, 513. [As to the authority of the court or judge advocate to strlJce oitt or tcitlidraw a charge or specifi- cation, see Court Martial, I § 7; Judge Advocate § 10.] 29. A list of the proposed witnesses is no part of the mil- itary charge, though such a list may properly and is not unfrequently appended to a charge. In serving upon the accused a copy of the charges, it is not essential, though the better practice, to add a copy of the list of witnesses where one is appended to the original charges. Ai)pending such a list does not preclude the prosecution from called witnesses not named therein. XXY, 350. [See Witness § 7.] See twentieth ARTICLE v> 1. TWENTY first ARTICLE $ 2, 3, 7. sixtieth article $ 7, 14. ARREST, I vS 7. FINDING ^S 1, 2. 156 CHIEF MUSICIAN— CIVIL EMPLOYMENT OF ARMY. CHIEF MUSICIAN. 1. A "chief musician^' is not au officer but an enlisted man, (see Act of March 3, 1869, c. 124, s. Sj and Sec. 1342, Eev. Sts. ;) and, not being, (like a hospital steward or ordnance sergeant, — see par. 895, Army Eegs.,) specially exempted from trial by a regimental or garrison court, is subject to the same, for offences within the Jurisdiction of such court, equally as to trial by a general coart-martial. XXXI, 212. 2. The chief musician of a regiment is an enlisted man, but not a non-commissioned officer. He is also enlisted, not to perform the duties of a soldier, but exi^ressly as an " instruc- tor of music." [Act of March 3, 1869, c. 124, s. 5 j Sees. 1099, 1102, 1106, Eev. Sts.] So held that he could not legally be reduced to the ranks, either by sentence or by order. XXXIII, 33. CITIZENSHIP. See ALASKA $ 1. ALIEN. DESERTION $8. PARDON § 2. CIVILIAN — AMENABILITY OF, TO MILITARY JURISDIC- TION. See forty FIFTH ARTICLE § 1. SIXTIETH ARTICLE ^ 13, and note. SIXTY THIRD ARTICLE. COURT MARTIAL, II $ 7, 8, and note, 9, 15. MILITARY COMMISSION, II. NATIONAL CEMETERY § 6. PAYMASTER'S CLERK. POST TRADER ^ 4. SPY M- CIVIL EMPLOYMENT OF THE ARMY. See ARMY— EMPLOYMENT OF FOR CIVIL PURPOSES. POSSE COMITATUS. CrVIL OFFICE. 167 CIVIL OFFICE. 1. Section 1222, Eev. Sts., (Act of July 15, 1870,) provides that — ''No officer of tbe Army ou the active list sliall hold any civil office, whether by election or api)ointment, and every such officer who accepts or exercises the functions of a civil office shall thereby cease to be an officer of the Army, and his commission shall be thereby vacated." Held that this provision was an exercise by Congress of its constitutional power " to raise armies," which includes the power to deter- mine of whom they shall consist.^ XXX, 556. [See Cadet § 9.] 2. Under the provisions of Sec. 1222, Eev. Sts., an officer on the active list, who accepted, held, or exercised the func- tions of a civil office after July 15, 1870, ceased to be an offi- cer of the army.2 XXXV, M. 3. A civil office^ in the sense of Sec. 1222, Eev. Sts., is a permanent i^ublic charge or function, with a defined tenure and duty, created or authorized by public law, and " conferred by the appointment of government." Office is distinguished from temporary employment. To constitute a j)osition an office^ it is immaterial whether any emolument be attached to it.=^ XXX, 555; XXXVIII, 31. [Sec Oath, IY § 1, 2.] 4. Held that the term civil office emi)loyed in Sec. 1222, Eev. Sts. included federal, State, county, or municipal office. XXX, 555; XXXY, 54; XXXYl, 477- XXXYIII, 31; XLII, 30G. So held that an officer of the army could not, without thereby vacating his military office, accept or exercise the office of ^ See United States v, Bainbridge, 1 Mason, 71 ; In re Eiley, 11 Benedict, 408. ^ See the opinion of the Attorney General, (XIY Opins. 200,) that the General of the Army could not exercise the office of Secretary of War without ceasing to be an ofiicer of the army. ^'As to what constitutes office, as distinguished from em- ployment, and public office as distinguished from office in general, see United States r. Maurice, 2 Brock. 103; United States V. Ilartwell, Wahace, 385; United States v. Bloom- gart, 2 Benedict, 35(i; XIII Opins. of Attys. Gen. 310; also the recent cases of United States v. Germaine, 9 Otto, 508; In re Corhss, 11 E. I. 040; In re Hathaway, 71 X. York, 238; AYilcox V. People, 90 Ills. 186; Throop i\ Langdon, 40 Mich. G73. 158 CIVIL OFFICE. Park Commissioner of the City of Philadelphia, (XXX, 555 j) or of Trustee on the Board of Trustees of the Cincinnati Southern Eailroad/ (XXXVIII, 31 j) or of commander of a battalion of State militia, (XLIl, 306;) — these being offices created by State statute. So held that a medical officer of the army could not accept the office of a county physician, and retain his military office. XXXVI, 477. But where a State statute authorized the emiiloyment, by the Board of Water Commissioners of a city, of a person as an engineer, and the position was offered to an engineer officer of the army, held that such officer, in accepting the same, by the authority of the Secretary of War, would not be affected by the pro^^sion of Sec. 1222, Eev. Sts.; such a position being in fact, as it was designated in terms in the statute, an employment merely, and one of a temi)orary and incidental character, and thus properly distinguished from an office. XXXYII, 540. And similarly held^ later, in regard to the emi^loyment of the same officer, (under a similar stat- ute,) as a consulting engineer to the State Engineer; the function of the latter being the office established by the stat- ute, while that of the former was but an incidental employ- ment. XLIII, 307. 5. So, held that an officer of engineers detailed by the Pres- ident to perform, or assist in, engineering work, for State or municipal authorities, at their request, could not be said to ex- ercise a civil office^ and was thus not affected by the x>rovision of Sec. 1222, Eev. Sts. ; the only question to be determined in cases of such employment being that indicated by Sec. 1224, viz. whether such work would ' require the officer to be sepa- rated from his cori)s or otherwise interfere with the perform- ance of his military duties proj^er.'^ XXXVII, 540, 542. ^ Concurred in by the Solicitor General in opinion of March 25, 1870, (XV Opins. .) ^ It is held by the Attorney General in an opinion of May 21, 1880, (XVI Opins. ,) that Vvhile to detail an officer of the active list for duty with Professor King on the U. S. Geo- logical Survey would not be to invest him with a civil office^ yet that, as such survey is a civil tcorJc, an officer could not, in view of the provisions of Sec. 1224, Eev. Sts., legally be detailed for duty thereon if the effect of such detail would be to separate him from his regiment, cori)s, ♦^c, or otherwise interlere with the performance of his military duties proper. It is further held by the Attorney General in an opinion of CIVIL OFFICE. 159 6. Sec. 1222, Rev. Sts. does not appl3' to enlisted men. But except i)erliaps in a rare case — as, for exami^le, a case of an ordnance sergeant, or other member of tlie non-commissioned staff, established at a permanent station, it must in general be quite incompatible with the status and obligation of an enlisted man to hold any civil office or emi)loyment, even one held for the mere puri)ose of qualifying the party to adminis- ter oaths, as that of notary public. XXXVIII, GIG. • 7. Held that the position of master machinist at the Spring- field Arsenal, conferred by the appointment of the com- manding officer, was not properly a federal office, but an employment si mi)ly, so that, upon the appointee being elected a member of the School Committee and of the Board of Water Commissioners of Springfield, he could not be said to come within the application of the Executive Order of Jan. 28, 1873, declaring that persons holding federal office should, if accept- ing state, territorial or municipal office, be deemed to vacate and resign the federal office. XXXYI, 223. 8. Officers on the retired list are not afiected by the i:)rovis- ions of Sec. 1222, Eev. Sts.^ They may hold any State, county or municipal office, and receive the emoluments of the same without their military ofiice or i)ay being in any manner afiected. ]S"or will their holding military office under the United States operate as a disability- to their receiving office or pay under the State, in the absence of any State statute creating such disability. XXXI, 13G; XLI, G62; XLIII, 1G5. [But see §§9 and 10, infra.] 9. Held that the prohibition of Sec. 18G0, Eev. Sts., that "no person belonging to the army or navy shall be elected to or hold any civil office or appointment in any Territory,''^ included officers on the retired as well as on the active list of the army. XLII, 111. 10. By a provision of the Act of March 30, 1868, c. 38, s. 2, (now incorporated in Sec. 1223, Eev. Sts.,) it was declared — Dec. G, 1877, (XY Opins. ,) that in view of the provisions of Sees. 1221 and 20G2, Eev. Sts., considered together, the President may ])roperly detail an officer of the active list of the army as Indian agent, only when such detail will not sep- arate him from his regiment, corps, &C., or otherwise interfere with his regular military duties. ^To a similar efi'ect, see opinion of the Attorney General of June 11, 1877, (XY Opins. — .) IGO CIVIL PROCESS. "that any officer of the army or navy who shall, after the passage of this Act, accept or hold any ai)pointiuent in the diplomatic or consular service of the government, shall be con^ sidered as having resigned his said ofiice, and the place held by him in the military or naval service shall be deemed and taken to be vacant." Held, in the case of an officer of the army who at the date of this statute was holding a dij)lomalic position, that his military office must be regarded as vacated unless he forthwith resigned his dii)lomatic office on being advised of the passage of the Act; that he could not legally be allowed to continue to hold his military office for a certain time till his services in the diplomatic office could conven- iently be dispensed with. XXYI, G55. 11. Held that the Act of March 30, 18(38, c. 38, s. 2, (now Sec. 1223, Eev. Sts.,) applied to officers on the retired list equally and alike with officers on the active list of the army, and that an officer on the retired list who, subsequently to the passage of said Act, accepted an appointment in the diplomatic service, became eo instanti separated from the army, — his military office ceasing thereupon to exist, — and could be re-admitted to the army only by a new appointment according to the Constitution.^ XXIX, 1. CIVIL PEOCESS. 1. It is well settled, upon considerations of public policy, that funds in the possession of a pajamas ter of the army or other disbursing agent of the United States, due as pay, salary, or wages, to an officer or soldier of the army, or other govern- ment employee, cannot be attached in a suit instituted against ^ See opinion of the Attorney General of Juue 11, 1877, (XV Opins. — .) In a later opinion of Dec. 11, 1877, (XY Opins. — ,) the proviso of s. 2 of the Act of March 3, 1875, c. 178, is construed by the same authority as expressing the* intent of Congress to so limit the application of the i)rovision of March 30, 18GS, (Sec. 1223, Kev. Sts.,) that it should not aft'ect the status of any ohicer borne on the retired list at the date of the lirst named Act, March 3d, 1875. That a resi{)nation of a second office, the acceptance of which has oi)erated to vacate an office previously lield, will not work a re-investiture of the original office — see In re Corliss, 11 E. I. G43. CIVIL PROCESS. IGl such officer, &c., by a private creditor.^ XX, 413; XXIII, 550; XXVI, 406; XXVIII, 47; XXXIII, 8; XXXIV, 26. Where indeed the pay due has been x>aid over to a third person as the authorized agent or attorney of the party enti- tled to receive it, it may be attached by the garnishee process in the hands of such person. VIII, 403. 2. Held J on the analogy of the principle protecting an officer's pay from being taxed by the authorities of a State, (see Tax § 1,) that the necessary and proper baggage of an officer travelling on duty, of not greater amount than allowed by the Army Eegulations to be transported with him at the I)ublic exi^euse, was properly exemi^t from attachment for his private debts. An officer, however, can not be allowed to claim such an exemption to an unreasonable extent, and should he assume to transi)ort or i)rocure to be transported with him any considerable amount of baggage greater than that permitted by the Regulations, he woidd justly become liable to the consequences of the abuse of his privilege. In such a case he could not claim to be sustained by the gov- ernment in resisting an attachment or execution levied upon his effects. XXXV, 484. 3. Held that the personal property of an officer required tp be possessed and used by him in the regular performance of his military duties — as, for examj^le, his sword, or, in a case of a cav- alry officer, his horse — could not legally be seized upon an at- tachment or execution issued from a State court. XXXIII, 8. 4. The legality of the service of the process of a State court at a military post depends, (as to its original authority,) upon the question whether the sovereignty of the soil resides wholly in the United States, (either by virtue of a reservation of the same by the United States upon the admission of the State, or of its subsequent surrender by the State,) or is shared by the State government. Where, by an act of cession of the legisla- ture of a State in which a military reservation or jDost is situated, ^Buchanan v. Alexander, 4 Howard, 20; Averill i\ Tucker, 2 Cranch, 0. C. 544; Derr i\ Lubey, 1 McArthur, 187; XIII Opins. of Attys. Gen. b(S(S, And the same principle is applied to moneys due from municipal corporations. Hawtho^ r. St. Louis, 11 Mo. 59 ; Burnham v. Fond du Lac, 15 Wis<;. 193 ; Wilson v. Bk. of La. oo Ga. 98 ; Pruitt v. Ai'mstrong, 66 Ala. 306; Boone Co. i\ Keck, 31 Ark. 387. ' ] 11 D 162 CIVIL PROCESS. exclusive jurisdiction over the same has become uncoudition' ally vested in the United Sta»l:es, as contemplated by Art. I, Sec. 8 § 17 of the Constitution, no process issued from the State courts can legally be served thereon, but only process issued from the courts of the United States can be there exe- cuted. Where, however, in ceding jurisdiction, the State has reserved to itself the right, not unfrequentlj^ reserved under the circumstances, (and which it is often for the advantage of the United States to have reserved, since otherwise the post might become an asylum for criminals — see Cession of Jurisdiction § 4.) to ser\'e within the premises civil and criminal process on account of rights accrued, obligations incurred, or crimes committed in the State but outside of the premises, — then the writs of the State tribunals may be exe- cuted on the land in the class of cases thus excepted. Of course where there has been no cession of jurisdiction by the State, its officials have the same authority to serve the process and mandates of its courts, and its courts have the same jurisdiction over acts done and crimes committed, within the military i:>ost as elsewhere in the State ; the fact of the ownership or occupation of the land by the United States having no eftect to except it from the operation of the State laws.^ XYI, 514; XXI, 567; XXXIII, 8. [See Cession of Jurisdiction § 1.] 5. Where a military post or reservation is situated in a Territory, the Territorial courts are authorized to issue process for the arrest of officers or soldiers of the command charged with crime, or to cite them to appear before them as defend- ants in civil actions, or to attach, rei^levy ui)on, or take in execution any i^roperty belonging to them within the posts &c., not specially exempted from legal seizure. This for the reason that the courts in which is vested the judicial power of a Territory are not the courts of a sovereignty distinct from the United States but are the creatures of Congress,^ 1 See authorities referred to in note to Cession of Juris- diction § 5. 2 ''A Territory is not properly sovereign. It is an organiza- tion jftirough and by means of which Congress for a time gov- erns a particular portion of the country. Its rights are those which are set forth in the organic Act." Opinion of the Attorney General of August 2, 1878, (XVI Opins. — .) CIVIL PROCESS. 163 being establislied by it directly, or indirectly by its authority through the Territorial legislature, under the provision of the Constitution, (Art. lY, Sec. 3 § 2,) empowering Congress " to make all needful rules and reguUitions respecting the Terri- tory belonging to the United States." Thus while officials charged with the service of the process of such — as indeed of any — courts would, in comity, properly refrain from entering a military post for the iiurpose of serving process therein, or at least from making the service, till formal permission for the purx^ose had been sought and obtained from the commanding officer, yet, on the other hand, officers commanding military posts in the Territories should certainly interpose no obstacle to the due service within their commands of the legal process of the Territorial courts.^ XXYIII, 1 ; XXXIX, 541. 6. It is settled that a State court can have no authority to enjoin the United States judiciary from executing their judg- ments, or from x^roceeding with actions of law x^ending before them.^ Similarly held that a State Court was not emx)owered to enjoin an executive dex^artment or officer of the United States from performing the contracts of the United States, and, accordingly that an injunction issued from a State court X^rohibiting an officer of the army, charged with the duty of X)a3ing to a contractor a certain sum of money due him under a contract between him aiul the United States, from x^aying said sum, would legally and x^roperly be disregarded hj such officer.^ XLII, 128. ^ See the ox^inion of the Judge Advocate General x)ublished in G. O. 30, Hdqrs. of Army, 1878, in connection with YII Ox>ins. of Attys. Gen. 504. ^McKim V. Yoorhies, 7 Cranch, 270; Duncan v. Darst, 1 Howard, 300 ; City Bk. v. Skelton, 2 Blatch. 20 ; Kiggs v. Johnson Co., Wallace, 100; United States v. Council ot Keo- kuk, Id, 514 ; Marix^osa Co. v. Garrison, 20 How. Pr. 448 ; English V. Miller, 2 Ilich. Eq. 320 ; Chapin v. James, 11 E. I. 80. ^ See the subsequent conlirmatory ox)inion of the Attorney General in this case, of January 29, 1879. xniblished in G. O. 3, Ildqrs. of Army, 1879. In an earlier ox)inion of the same authority, of January 3, 1870, (XY Opins. — ,) it was held that as a State can not by its judicial xu'ocess legally obstruct or indirectly interfere with the operations of the L". S. govern- ment, a State court could not be authorized to enjoin a con- tractor with the United States from receiving payments under his contract and thus hinder him in the due x^erformance of the same. 1G4 CIVIL KIGHTS — CLAIMS. 7. Where, in time of peace, a U. S. Marshal of a Territory, under color of a formal warrant, made an arrest of a civilian, and an officer of the army thereupon assumed to release him by military force on the theory that the arrest had been made outside the Marshal's district, held that the act of the officer was wholly unauthorized, and — an indictment having been found against him in a United States court — advised that he be required to surrender himself to the U. S. Attorney or Marshal for trial. XXVI, 468. See pay AND ALLOWANCES § 7. CIVIL RIGHTS. A party by whom a colored person is caused to be deprived of any of the rights guaranteed by the provisions of Sec. 1977, Eev. Sts., is liable not only to a civil action in the U. S. Cir- cuit Court, '' for redress," under the Act of April 20, 1871, c. 22, s. 1, (Sec. 1979, Eev. Sts.,) but also to criminal prosecu- tion, in the U. S. District Court and punishment by fine and imprisonment, under the Act of May 31, 1870, c. 116, s. 17, (Sec. 5510, Eev. Sts.) XXI, 678. CLAIMS.^ 1. Under the law and practice governing the executive departments, a head of a department is held not to be in gen- eral empowered, without specific statutory authority for the Xiurpose, to reopen, (except for the correction of an error in calculation,) a claim once duly* settled by his department, in the absence of new and material evidence clearly entitling the claimant to an additional allowance.^ So where the Secretary of ^ The reason of the restricted authority, (illustrated under this Title,) of the Executive department in the allowance of claims may be found in the i)rincii>le of i)ublic law, as ex- pressed by Miller J., in the case of The Floyd Acceptances, 7 Wallace, 676,— that " in our structure of government all I)Ower is delegated and defined by law : " * * * "we have no officers, from the President doAvn to the most subordinate ^gent, who does not hold office under the law, with prescribed duties and limited autliority." - See, as among the principal authorities on this point, United States V. Bk. of Metropolis, 15 I'eters, 378 ; IV Opins. of Attys. Gen. 356; V Id. 125 ; X Id. 259; XII Id. 358, 388; also Opins. of June 15, 1877 and Jany. 11, 1878, in XV Id., — . CLAIMS. 165 War, under authority expressly given liim by Act of Congress, had entertained and adjusted the account and claim for mili- tary transportation of a Railroad Comi^any, and had settled the same by the allowance of a sum which was paid and accepted as a final award, held that his authority over the claim, in the absence certainly of new and controlling evidence on the merits, was to be regarded as exhausted^ and that without new authority from Congress, he would not be empowered to reopen the claim for the purpose of allowing further credits to the claimant.^ XLII, 332. So held, that, in the absence both of new evidence and new statutory authority, the Sec- retary of War would not be empowered to reopen and recon- sider a claim for the repayment of a certain sum, (paid as commutation money by a party who claimed to have been illegally drafted,) the question of the allowance of which had been duly considered by a former Secretary', (under a statute authorizing him to repay the same if deemed to be justly due,) and had been unfavorably determined, ten years before. And this, though the correctness of such determination was considered to be doubtful ; the proper recourse of the claim- ant in such a case being to Congress. XLII, 357. 2. An executive official cannot, of his own authority, appro- priate the money of the United States for the purpose of sat- isfying a claim. So held that the . Secretary of War could have no authority to reimburse a claimant for the amount of a tax assessed upon him by the military authorities during the war, and since paid into the Treasury, whether or not the same w^as legally exacted, but that Congress must be appUed to for the necessary action. XYIII, 66S. 3. A claim, though deemed by the Secretary of War to be probably just, cannot in general, in the absence of any appro- priation for its payment, or other authority to allow the same, properly be entertained by him. And where to pass upon a claim must be clearly quite futile, a consideration of its merits will in general be out of place, and the claimant, without being heard thereon, will properly be referred to the depart- ^This opinion, in support of its conclusion, cites lY Opins. of Attys. Gen. 356; Y Id. 125; X Id. 250; XII Id. 388,— authorities which the Attorney General, in a concurring opin- ion of January 29, 1880, (XYI Opins. — ,) refers to as " singu- larly pertinents 3 6G CLAIMS. roent of the government empowered by law to take specific action in liis case. XLI, 214. 4. The government will in general recognize assignments of claims to moneys in its hands due and payable to individ- uals, so far as to consent to pay over the amount to the assignee, where the assignment is made according to law, viz. Sec. 3477, Eev. Sts.^ But parties representing opposing interests cannot, by presenting to a head of a department conflicting claims to such money, comi)el him to become a stakeholder for them or an arbitrator uj^on the merits of their demands. Where there is any doubt as to whom the money should be i)aid, the claimants should i)roi)erly have recourse to Congress or the courts. XIX, 2GG. [And compare Pub- lic Property, disposition of, &c. § 10.] 5. Xotwithstanding the equitable princij^le that interest is an incident of a debt, the rule is well settled that the United States is not in general bound to pay interest on claims, whether arising out of contractor otherwise.^ XXI, 504. In the absence of statutory authority, a military officer, in enter- ing into a contract as the representative of the United States, would not be emi^owered to stipulate with the contractor that, in case payments due him under the contract were delayed beyond a certain time, he should be entitled to claim interest thereon. XXXII, (300. 0. The Secretary of War, in the absence of authority from Congress, is not empowered to allow a claim for unliquidated damages; the term ''damages" being here used in its legal sense. In general, in the absence of a specific api^ropriation by Congress for the purpose, no executive or military officer can legally pay or allow to an individual a sum of money not exjiressly stipulated to be paid to him by the terms of a law- ful contract. A claim for an amount not fixed by express contract, or capable of being fixed according to its terms, but * Assignments of claims not made as prescribed in this Sec- tion are declared thereby to be '* absolutely null and void." As illustrating the eftect of this statute, see opinions of the Attorney General of October 23, 1878, and February 7, 1879, {XVI Opins. — .) ' See I Opins. of Attys. Gen. 555 ; II Id. 4G3 ; III Id. 039 ; IV Id. 130, 292 ; V Id. 72, 105, 138, 351 ; VI Id. 533 ; VII Id. 523 5 IX Id. 59 ; XIV Id. 30 ; Todd v. United States, Deve- reux, 95 j United States v. McKee, 1 Otto, 450. CLAEMS. 167 based upon an alleged implied contract or an alleged wrong done the claimant, is a claim for unliquidated damages, and cannot legally' be allowed, of its own authority, by an execu- tive department of the government. [See Contract § 1.] Claimants for unliquidated damages must have recourse to Congress or, in a limited class of cases, to the Court of Claims. XXXII, 433; XXXY, 111; XXXVII, 233; XXXIX, 417. Thus held that the Secretary of War was not emi)owered to allow a claim of a contractor for damages for the non-i)erform- ance of a contract on the part of the United States, no such damages being stipulated for in the contract.' XXXII, 432. So Jield that the Secretary of War was not empowered, in the absence of statutory authority, to allow a claim for the use and occupation of buildings taken possession of and occupied by the military authorities without contract or agreement as to rent, or a claim for injury done to such buildings, but that the claimant must have recourse to Con- gress, (or the Court of Claims,) for his reasonable comi)ensa- tion. XXXVII, 534. Similarly held that the Secretary of War was not empowered to allow the claim of a citizen, who had been i^ermitted to make certain improvements ujjou pub- lic land, to be indemnified on account of alleged injury to his property and business caused by the extending of the limits of a military reservation over the land occupied by him. XLII, 592. So held that the Secretary of War was not empowered, (of his own authority and discretion,) to allow a claim for indemnity for his alleged wrongful arrest and imprisonment as a deserter, made by a party who claimed to have been arrested by mistake for the real offender, (XXXVI, 644;) or a claim for his arrest and detention as a. deserter made by a party claiming to have been illegally drafted, (XIV, 405; XXI, 122;) or a claim for an alleged wrongful arrest and confinement made hj a i3risoner of state, or sus- pected person in time of war, (XV, 129 ; XIX, 1G6; XXXVI, 522 ; ) or a claim for reimbursement by a military employee for loss of wages during a period of an arrest and trial by court mar- tial, the conviction in his case having been held to be invali- dated by reason of a defect in the proceedings, (XIV, 225;) or a claim for the value of personal property illegally appro- ' See IV Opins. of Attys. Gen. 327 ; VI Id. 499, 516 ; IX Id. 81 ; XIV Id. 24, 183. 168 CLAIMS. priated by a soldier, (XLII, 2905) or a claim for tlie vajue of property taken or destroyed by the army during a war* XXXIII, 130, 353. [But separate considerations contribute to preclude the entertaining or allowance of claims for unliquidated damages arising out of a state o/icar. See § 0, infra.] 7. The declaration in the 5tli Amendment to the Constitu- tion, that ^ i)rivate property shall not be taken for public use without just compensation,' adds nothing to the authority of the Secretary of War to allow a claim for compensation for real or personal prox)erty taken for the use of the army or of his department. Congress alone, (or in some cases the Court of Claims,) can authorize the payment of the compensation here intended, and in the absence of authority from Congress, it would be quite beyond the i^rovince of an executive oMcer to assume to i^ass final judgment ui)on the merits of such a claim. XXXVII, 7. 8. Held that the provision of Sec. 3480, Eev. Sts., making it unlawful to pay certain claims against the United States to persons who '^ promoted, &c., the late rebellion," created a i)ersonal disability only, which could not operate against the heirs of x)arties thus disqualified. XXXIX, 417. 9. Without special authority for the purpose conferred by Congress, the executive branch of the government cannot be empowered to i)ay any claims, in favor of the '''loyaV owners, for property destroyed or captured by the enemy, or taken, destroyed, or damaged by the federal troops, or api^ropriated for the use of the federal army by the military authorities ; or for land or buildings occupied for military i:>urposes ; or for land or i^roperty occupied or used in making fortifications or otherwise in the common defence — during the late war, and in the absence of authorized express contract. Claims, however, of this class, where the taking or use of the property for a public purpose has been justified by a necessity of the service incident to a public emergency, (and the officer mak- ing the seizure, &c., is thus reliev^ed from being treated as a trespasser and made personally amenable in damages',) yet may, in view of the constitutional provision for the rendering of just compensation for i)rivate i)roperty taken for x)ublic ^ See Mitchell v. Harmony, 13 Howard, 115 ; United States v. Eussell, 13 Wallace, 023, Parham v. The Justices, 9 Ga. 341; Grifdn v, Wilcox, 21 Ind. 380; Clark v. Mitchell, 04 Mo. 507. CLAIMS. 169 use, be sued and recovered upon in the Court of Claims, where within its statutory jurisdiction. In such cases the obligation thus created " raises an imi)lied promise on the part of the United States to reimburse the owner." ^ XX, 525, 5985 XXII, 304; XXVI, 52, 242; XXXYI, 1. [In view of the great luimber of claims of " loyal " persons for compensation for property appropriated or destroyed dur- ing the late war. Congress from time to time made special pro- vision for the investigation and allowance of certain claims of this nature ;— as by the Act of July 4, 18G4, (see § 10 infra;) the "Captured and Abandoned Property Act,'- of March 12, 18G3, authorizing the recovery of the iwoceeds of certain propert^^ seized and sold; and the Act of March 3, 1871, s. 2, establishing the "Southern Claims Commission."] 10. As to the classes of claims for quartermaster's and sub- sistence stores authorized to be settled by the Act of July 4, 18G4, (as amended by subsequent Acts,^ and now incorpo. rated in Sees. 300, A and 300, B, Eev. Sts.) it was held by the Judge Advocate General as follows : a. That the term — '•''All claims of loyal citizens in States not hi rebellion'^'' meant claims not only of "loyal" claimants but claims originating in States which were not in insurrection ; and that if the claim did not so originate it was immaterial where the claimant resided or that the claim was meritorious.^ XVII, 590; XIX, 538; XX, 318, 355; XXI, 19, 132, 243, 248. On the other hand, a claim originating in a State "not in rebellion" was held within the Act, although the State or locality where it originated may have been at the time occu- pied by the enemy or the theatre of war. XXV, 021. Held further that the fact that*the claimant was a foreigner, (XXVI, 253,) or a woman or non-combatant, (XXI, 464,) or an eleemosynary cori)oration, (XXX, 475,) could not en. title the claim to be entertained, if it did not arise in a "loyaP' State. But held that claims of officers or soldiers, (as well ^ United States v. Russell, 13 Wallace, 630. ^ As to the effect of the amendment by the Act of Feb. 18, 1875, see Opinion of Attorney General of August 25, 1875, (XV Opins. — ) ^See the construction of the Act of 1864 by Congress in the subsequent Act of Feb. 21, 1867 ; also Circular Xo. 51, of the War Department of 1865, and XII Opins. of Attys. Gen. 362, 497. 170 CLAIMS. as sutlers employed with the army,) could not be debarred by the Act, since such claims could not be said to have any locality of origin other than in the army itself. XXII, 177 5 XXIli, 485; XXIY, 495 J XXVI, 62-, XXXIII, 523. So Jield that the Act did not preclude the entertaining of claims of "loyal" members of the Cherokee nation, for i)roperty taken for the use of the army in the territory occui^ied by such natiou. XXX, 20. And held in a case of a claim for " quartermaster's stores " arising in a " State in rebellion,'^ that the fact that the claimant, a resident of such State, had since been pardoned by the President did not entitle his claim to be entertained under the Act ; the pardon dispens- ing indeed with the necessity of proving loyalty,^ but not otherwise modifying the status of the claim under the stat- ute. XXVI, IGO : h. That the term ^' quartermaster's stores" did not include rent, or the use and occupation of land or buildings, by the army .2 XVII, 509; XVIII, 50G; XIX, 428; XXVI, 51; XXVIII, 159; XXX, 433, 473; XXXIII, 127; XXXVII, 6. And held that a claim for rent, or damage to real estate, could not be entertained under the Act, although the premises were in fact restored to the claimant as owner at the close of the war, (XXVI, 454;) or though rent had in fact been paid by a military subordinate, through ignorance or misconception of tbe law, for a portion of the period of the occupation, (XXVIII, 150;) or though a contract for rent had in fact been entered into, if such contract was not an express written contract, duly approved and legally valid.^ XXX, 434. Held further that claims for cotton, (XXVI, 247,) and for lumber, (XXVI, 331,) seized fn the enemy's country and used to strengthen fortifications could not be regarded as " quartermaster's stores." And so held of liquors taken for the use of the medical department of the arraj^ in Xorth Carolina, in 1865. XX, 568 : c. That the term " proper officer" was not to be construed as intending necessarily an officer of the quartermaster or ^United States v. Klein, 13 Wallace, 128; Armstrong v. United States, Id. 154. 2 See XII Opins. of Attys. Gen. 487-8 ; also the proviso, derived from the Act of Feb. 21, 1867, added to Sees. 300, A. and 300, B., Eev. Sts. 2 And see Filor v. United States, 9 Wallace, 945. CLERK. 171 subsistence department, but that it properly included any commander or other officer warranted under the circum- stances of the case in receiving or taking the stores. XXI, 79: d. That the proviso — " if convinced * * * of the loy- alty of the claimant," in connection with the rest of the stat- ute, made the Quartermaster General or Commissary Gen- eral of Subsistence, the exchisive judge on the question of loyalty in each case. XXXI, 352. And held^ further, that the Act devolved the function, of examining and reporting upon the claims specified, on the Quartermaster General and Commissary General as public officials of the United States rather than in their military capacity j and that their action under the statute was therefore not subject to review by a military superior or the Secretary of War. XXX YI I, 551 : €. That, in view of the condition — '' and if convinced * * * that the stores have actually been received, or taken, for the use of, and used by, the army," no claim could be entertained for articles not actually procured for a legitimate military use and actually used accordingly : thus, that claims for animals or other proi^erty taken for x^ersonal use or i^rolit by soldiers, cami^-followers, &c., could not be entertained under the Act. XIX, 533 ; XXI, 79 j XXIV, 503 ; XXVII, lOG ; XXVIII, 56. / That the proviso at the end of the Act, (Kev. Sts. p. 50,) authorizing the extension of its i)rovisions to certain i^laces included in the " States in rebellion," could not be extended to any localities not thus specified, or to parts of insurrec- tionary States excepted by proclamations of the President from the operation of certain special restrictions but not from the status of being in insurrection- — as the parishes of Louisi- ana referred to in the proclamation of Jany. 1^ 18G3, or the port of Xew Orleans as affected by the i)roclamation of April 2, 18G3. XVII, 007 J XX, 399 j 558 j XXI, 213 j XXII, 293 j XXXVII, 5, 71. CLERK. 1. The authority for the employment of a civilian clerk for a court martial, (other than the '' reporter " authorized by Sec. 1203, Rev. Sts.,) is contained in par. 1138, of the Army Regulations. Civilian clerks for military courts, (other than stenographic reporters,) have usually been allowed and paid 172 CLOTHINa ALLOWANCE. by the Pay Department, (upon the certificate of the judge advocate,) at the rate of $3 a day.^ II, 338 ; YII, 71 j XIX, 315. [See Eeporter § 3.] 2. A clerk to a court-martial, (other than the ^' reporter," authorized, and specifically directed to be sworn, by Sec. 1203, Rev. Sts.,) is not required to be sworn : neither the judge advocate nor president of a court-martial is empowered to swear such a clerk. XXXYII, 591. 3. A court-martial, member of court, or judge advocate, cannot of course lawfully communicate to a clerk, by allow- ing him to record the same or otherwise, the finding or sen- tence of the court. Before i>roceeding to deliberate \x\)o\i its finding, the court should require the clerk, (or reporter,) if it has one, to withdraw. But the fact that the finding or sen- tence, or both, may have been made known to the clerk of a court martial, cannot affect the legal validity of its proceed- ings or sentence. Y, 478 j XI, 318; XXYIII, 146; XLII, 218. [See EiaHTY Fourth Article § 5.] 4. Held that a claim by an officer to be allowed extra com- pensation for services rendered by him as clerk to a general court martial of which he was the junior member, was wholly without sanction in usage, and moreover could not be allowed without a violation of Sec. 1705, Eev. Sts. XXII, 578. As to the authority for allowing enlisted men extra compensation for services rendered as clerks to courts-martial, see Extra Duty Pay § 4. As to the non-amenability to trial by court martial, in time of peace, of civilian clerks emj)loyed in connection with the military branch of the public ser\dce, see Sixty Third Arti- cle § 7. See retirement ^ 14. CLOTHING AILOWAHCE. 1. By the existing law — Sec. 1302, Eev. Sts. — the pecuniary allowance to soldiers for clothing not drawn is payable only upon ^^ final discharge.'^ A forfeiture of ^' pay and allow- ances," imposed by sentence of court-martial, will not there- ^ The existing authority for compensating these clerks is found in the Act of May 4, 1880, which includes among the items of appropriation for the Pay Department of the Army — " compensation of citizen clerics and witnesses attending upon military courts and commissions." CLOTHING — LOSS OF. 173 fore affect tliis particular allowance, except when imposed in connection with the punishment of dishonorable discharge. XXY, 48G. 2. A sentence forfeiting ^^ i^ay and allowances " for a cer- tain period does not affect the right of the soldier to receive the usual and necessary allowance of clothing for such i^eriod. [See FoEFEiTURE, II § 4.] A soldier, while he remains in the service, must he clothed as well as fed. The exception sometimes made by courts-martial in such sentences — "except necessary clothing," is thus surplusage. XXIX, 591. 3. A soldier is not entitled to be credited in his clothing account with the value of clothing lost by lire or other casualty. This can be made good to him only by a gratuitous issue under the Army Eegulation, (see Clothtxg — Loss of § 2,) or by an appropriation for the puri^ose by Congress. XXXI, 261. CLOTHING- LOSS OF. 1. The United States is not an insurer of the effects of officers or soldiers of the army against fire or other casualty. Where an ofiicer has suffered a loss of clothing, &c., through a fire in the barracks or other public quarters occupied by him, he can be reimbursed only by the action of Congress. XXX, 462. Such also is the only means of relief for a soldier where his case does not come within the regulation referred, to in the next paragraph. 2. Held that par. i)5 of the Appendix to the Army Eegula- tions of 1863, was properly construed as authorizing the Sec- retary of War to make gratuitous issues of clothing to soldiers to replace clothing lost, only where the loss was the immediate or direct result of a due comi^liance with a comi^etent military order; — as where, by the express order of an authorized sui>erior, clothing was left behind on going into action or abandoned on a retreat, and thus eventually captured or otherwise lost. XXXIX, 181. But held that the authority to make the issue under the regulation did not exist where the loss of the clothing occurred as the immediate consequence of a casualty or the violence of the elements ; — as Avhere it was destroyed by a fire in barracks, (XXXI, 264 ; XXXVI, 342, 427 ;) or by the burning of a transport, (XXXYIII, 514;) or by burning incurred in saving government property from fire, (XXXIX, 181 ;) or by neglect or theft on the part of persons 174 COLLEGE OR UNIVERSITY. • in charge, (XXXVII, 99.) And similarly lield^ where the loss, though incurred in the course of compliance with orders, was the result directly of the casualty ) as where it was burned while the soldiers were extinguishing, under orders, a prairie fire. XXXVII, 206. And advised that in all such cases where it was not quite clear that the Secretary was authorized by the terms of the regulation to make the issue. Congress would properly be applied to for specific authority for the purpose.^ XXXI, 264. COLLEGE OR UKIVEESITY. [Under Section 1225, Eevised Statutes.] 1. The provision of this Section that ^Hhe number of offi- cers so detailed shall not exceed thirty at any time," means that only thirty officers in all — active and retired — shall be so detailed. XXXVII, 201. 2. It is only colleges, &c., for which officers of the army have been detailed to act as professors, &c., under this Sec- tion that the Secretary of War is authorized, by the same Section, to supply with arms for the instruction of their stu- dents. XXXVli, 201. 3. The official of the college, &c., to whom the ordnance stores issued under this Section are entrusted, may properly be required to render the returns indicated in Sec. 1167, Eev. Sts., which directs that all "officers, agents or persons," re- ceiving or entrusted with ordnance stores or supplies, shall make certain regular returns of the same according to forms and rules prescribed by the Chief of Ordnance with the appro- val of the Secretary of War. XLII, 282. [See Ordnance Department.] 4. Heldj that the term "established college or uniA^ersity within the United States," could i)roperly and safely be con- strued as including only State universities or incorporated public institutions ; that, in view especially of the fact that only thirty colleges, &c., could be provided with arms, mili- ' See acts of July 24, 1861 ; Joint Eesolution of July 20, 1868 ; Acts of March 11 and May 15, 1872 ; and Joint Eeso- lutions of June 19, 1874, and March 3, 1877 — where such authority was expressly given by Congress, in cases mostly of loss by fire. In this connection, note G. 0. 13, War Dept., 1875, in part issued in view of the above opinions. COLORED TROOPS. 175 tary x^rofessors, &c., at one time, it could not be supposed that it was contemplated by Congress that the provisions of the statute should extend to private or unincori)orated schools or academies. XLI, 406 ; XLII, 173. [See next paragraph.] 5. A provision of the recent Army Appropriation Act of May 4, 1880, requires that, to authorize the detail of a retired officer as a professor, «&c., the college, &c., shall have been incor])orated under the laws of the State. From this provision it may be inferred that it is contemplated by Congress that the details for such positions will mostly be made from the class of retired officers. The authority however, given by the original statute, (Sec. 1225, Eev. Sts.,) to so detail officers on the active list, is not itgarded as divested or impaired by the later Act. XLIY, 52. See bond ^ 6-10. COLORED TROOPS. Upon a proposition, made in January, 1866, by the Mem- phis and Little Eock Kailroad Company, in Arkansas, to em- ploy, in comiileting the construction of their road, the colored United States troops stationed in its neighborhood, with the understanding that they should be compensated for their labor in grants of land belonging to the company adjoining the line of its road, advised, that such i)roposition be not acceded to by the government, and for the following reasons : 1st. The acts of 17th July, 1862, c. 105, s. 11, and c. 201, s. 12, which con- vey the original authority for the enlistment and employment in the United States service of colored troops or i)ersons, jus- tify their being employed in no work other than that properly pertaining or incidental to military service ; 2d. All the legis- lation since the date of these acts, in regard to the enlistment^ pay, bounties, &c., of colored troops, aims at placing them upon the same footing, as to their service, duties and privil- eges, as white soldiers; 3d. The employment of colored troops as the hirelings of private individuals or corporations, and in a lower and more servile class of labor than that which white trooi)s are called upon to perform, would be injurious to their discipline and degrading to their morale, and is there- fore incompatible with their status as United States soldiers; 4th. The sentiment of all good citizens is in favor of the ele- 176 CO^OIISSARY SERGEANT — COMPANY COMMANDER. vation of the colored race, and their reception into the military service is one of the very measures which, in the i)ublic ex- pression of this sentiment, have been resorted to as a means of promoting the desired end ; and any measure which tends to degrade the colored soldier, or to distinguish him disparag- ingly from his white comrade in arms, does violence to this sentiment, as well as to the intent of Congress as manifested in its legislation. ' XX, 349. COMMISSAEY SERGEANT. Sec. 1142, Eev. Sts., makes it the duty of commissary ser- geants '^to receive and preserve the commissary supj^lies" at their posts, that is to say, commissary stores belonging to the United States. So held,, under this Section, that the Secretary of War would not be authorized to appoint or detail a com- missarj^ sergeant to receive and take charge of the subsistence stores purchased from the United States by the ' Commissary of Cadets' at the Military Academy for the use of the cadets j such stores not being property of the United States. XLI, 261. COMMISSION. See APPOINTMENT. COMMUTATION. See one HUNDRED AND TWELFTH ARTICLE $ 5. COMPANY COMMANDER. Extract from an endorsement of the Judge Advocate Gen- eral, in submitting to the Secretary of War a communication, (concurred in by the Judge Advocate General,) from Brig. Gen. E. O. C. Ord, commanding Dept. of Texas, in regard to tJie relations between the coynmissioned and non-eommissioned officers of cojupanies. "Though I am aware of no law m terms prohibiting a com- pany commander from delegating to a non-commissioned offi- ^ For an extended account of the emi)loyment of colored sol- diers in our wars, see Corbin v. Marsh, 2 Duvall, 209 et seq. (Opinion of Williams, J.) COMPANY FUND. 1<7 cer so important a part of bis authority and duty as the entertaining in the first instance of the complaints and re- quests of the men of the comi)any, I can but consider such a delegation to be at variance with the principle and system of our military organization. Further, such a i)ractice, as it appears to me, must tend to render commissioned officers negligent and irresponsible, and non-commissioned officers arbitrary and overbearing. Indeed I can conceive of nothing that would sooner spoil a good sergeant than to place him in a position to determine at his discretion whether the com- plaints of his inferiors should be entertained by his sui)erior, and to color them at will when transmitted. Thus, though the practice may, in some instances, have been found conven- ient and innocuous, its effect in general must, I think, be prejudicial to the best interests of the service."^ XLII, 273. COMPANY FUND. This fund is money of the United States, being the product of ijroperty of the United States, viz., rations bought with the public funds originally api)ropriated by Congress for the sub- sistence of the arm}'. Once in fact appropriated in another form for the use of trooi^s, the money is properly and custom- arily employed for their use when it reappears as comx)any fund. The Army Eegulations make the company commander the trustee of the fund, and he is required to disburse the same for the benefit exclusively of the men of the company and duly to account for it to the regimental or post com- mander.^ Where a company goes out of service, leaving any company fund unexpended, the amount reverts to the United States treasury. XXII, 50 j XXVIII, 080. A com- pany commander who ai)propriates to his own use, or neglects duly to account for, a company fund, is liable to a suit by the United States to recover the same 5 and where, on ceasing to command the company, he neglects to turn over the fund in his hands to his successor in command, the latter has such an interest in the same as to qualify him to sue * Compare remarks of reviewing officer in G. C. M. O. 20, Dept. of the Columbia, 1879; do. 2, Id. 1880. 2 See xVrmy Eegulations, § 205-207 j G. O. 22, War Dept, 1800; G. O. 91, Id., 1873. 12 D 178 COMPENSATION— FOR KXTEA SERVICES. therefor. A commander thus failing or neglecting is also liable to have his pay stox)i)ed for the amount of the deficit, and to be i^roceeded against for embezzlement or misappro- priation under Art. 60. Y, 588 j YIII, 148; XXIII, 13 j XXYIII, 680. COMPENSATION— FOR EXTRA SERVICES. 1. Upon an application by a clerk of a bureau of the War Department to be paid an amount in addition to his regular salary, as a compensation for services performed by him for a certain period as acting chief clerk, heldj in view of the provisions of Sees. 1764 and 1765, Rev. Sts., that such addi- tional comi^ensation could ndt be allowed except by the au- thority of Congress.^ XXXIX, 643. 2. Held that a soldier, who was employed in the capacity of an acting assistant surgeon for a certain period in time of war, could not legally be allowed, by the Secretary of War, for such service, any extra comx^ensatiou, (other than the extra pay provided for '^constant labor" by Sec. 1287, Eev. Sts.,) without a violation of Sec. 1765, Eev. Sts., but that Con- gress alone could authorize the same. XXX, 456. Similarly Jield that a soldier could not be allowed a comi)ensation, addi- tional to his regular pay, for si>ecial services claimed to have been rendered as a spy or scout during the war. XLII, 5GQ. 3. A person while holding the office of U. S. postmaster — an office of which the emoluments are '' fixed by law," was emx^loyed, (without being appointed to office as clerk,) to render clei ical services to an ordnance officer. Held that he could not legally be paid, out of the ai)propriation for the ord- nance department or otherwise, (in the absence of authority of Congress,) any extra comi^ensation for such services, since such compensation would be within the prohibition of Sec. 1765, Rev. Sts. And reinarJced that it did not except the case from the statute that the postmaster had an assistant who performed the work and received the emoluments of the post office Avhile he (the postmaster) was acting as clerk in the ord- nance office; postmasters' assistants not being recoguized b^^ ^ Comi^are Hoyt v. United States, 10 Howard, 141 ; United States V. Shoemaker, 7 Wallace, 342; Stausbury v. United States, 8 Wallace, 34. CO^IPENSATION— PROPERTY TAKEN FOR PUBLIC USE. 179 law as public officers, but bein.c: merely emi)loyees of the post- master, who alone is responsible to the United States for the performance of the duty and legally entitled to the salary of the oftice. XXXIX, 553 ; XLI, 300. 4. Held that the existinoj law prohibiting the payment of extra compensation to salaried officers of the United States did not affect the right of an officer of the army to receive from a State the salary of a State office exercised by him during the operation of the Iieconstrnction Laws, (XXX, 159 ;) or to receive the amount of a reward offered by the Gov- ernor of a State for the performance of certain i)ublic service. XXXIY, 388. That neither an officer, nor an enlisted man, (except under Sec. 1287, Rev. Sts.,) can receive compensation for services performed as a clerk of a court martial, without a violation of Sec. 1765, Eev. Sts., — see Clerk § 4 j Extra Duty Pay § 4. As to the distinction between receiving compensation for extra service and receiving double compensation for two dis- tinct offices, see Retire3ient § 14. COMPENSATION— FOR PROPERTY TAKEN FOR PUBLIC USE. The fact that a person who has perfected an invention is an officer or employee of the United States can affect in no manner either his right to i)rocure a i)atent for said invention or to dispose of the same or of its use to the United States, or the authority of the proper department of the government, (if furnished with funds ai)])licable to the purpose,) to purchase such inv^ention or its use, and pay a reasonable compensa- tion or royalty for the same.^ So, if the government, in the absence of any contract, takes and uses in the military or public service an invention which has been patented by an officer, soldier, or emi^loyee connected with the army, such officer, &c., has, under the i>rovision of the Vth Amendment of the Constitution, the same right to a "just compensation'' for such use that any civilian would have under the like cir- cumstances.^ If indeed, while performing his own proper ^ See case of Burns i\ United States, reported in 4 Ct. CI. 113, and 12 Wallace, 246. 2 See lieport of Commission on Ordnance; Ex. Doc. 72, Senate, 37th Cong. 2d Ses., pp. 509-571, (case of Eodman cannon.) 180 CONDUCT TO THE PREJUDICE, &C. — CONTRACT. duties, the officer, »&c., in experimenting, framing models, &c., for his invention, lias availed himself of the tools or materials of the government or other facilities afforded by a govern- ment workshoi), &c., this fact is to be considered in connec- tion with the question of the quantum of the compensation to be awarded him. XXI, 413. See claims § 7, 9. CONBUCT TO THE PREJUDICE OF GOOD OJIDER AND MILITARY DISCIPLINE. See sixty SECOND ARTICLE. CONDUCT UNBECOMING AN OFFICER AND A GENTLEMAN. See SIXTY FIRST ARTICLE CONFESSION. See evidence $ 13. CONFINEMENT. See imprisonment. CONTEMPT OF COURT See eighty SIXTH ARTICLE. ONE HUNDRED AND FIFTEENTH ARTICLE § 5. WITNESS § 16,23,31,34. CONTINUANCE. See NINETY THIRD ARTICLE. CONTRACT. 1. It is only an express contract which, (in the absence of special authority from Congress,) can legally be entered into by the Secretary of War, or a military officer, or can be recog- nized and acted upon as binding upon the United States. Claims against the United States arising upon alleged implied contract cannot be entertained, but the claimants must be referred to the Court of Claims or Congress. [See Claims § 6.] Further, the contract, to be legally made or recognized CONTRACT. 181 as legal, iniist be in writing; ^ (except only — according to the ruling in Cobb's case '^ — when entered into without previous advertisement by reason of the existence of a " public exi- gency " : see § 9, infra.) So, in a case where the only evidence of an alleged contract of lease consisted of vouchers, setting forth accounts for rent claimed, approved by an assistant quartermaster, held that there was no sufficient evidence of an express or written contract upon which payment could be authorized by the Secretary of War. ^ XXX, 434. 2. Except in the rare case of an existing public exigency, (see § 0,) a contract for supi)lies in the War Department or military branch of the service is to be i:)receded by an adver- tisement for proposals as directed in Sec. 3709, Rev. Sts. This advertisement is not a mere facility for the convenience of an executive department, which may be waived at discre- tion, but an essential proceeding prescribed by the statute as a condition to the exercise of the authority to enter into a contract for the United States. Thus enjoined, no omission or evasion of this pre-requisite, however convenient such an omission or evasion may be, can legally be allowed. ^ So, held ^ See Henderson v. United States, 4 Ct. CI. 75; XIY Opins. of Attys. Gen. 229 ; Clark v. United States, 5 Otto, 539. 2 Cobb V. United States, 7 Ct. CI. 470, and 9 Id. 291. And see Thompson v. United States, Id. 198. 3 See XLV Opins. of Attys. Gen. 230. ^ See VI Opins. of Attj s. Gen. 40G ; X Id. 28 ; also opinion of the Solicitor General of March 20, 1870, (XY Opins. — ,) wherein, in holding contracts made without advertising to be not binding on the United States, he dissents from the opin- ion of Atty. Gen. Bates, in X Oi)ins. 410, to the effect that while an absence of the prescribed advertisement will render illegal and inoperative an unexecuted contract, the Govern- ment cannot, on account of such omission, rescind, to the dam- age of a contractor, a contract entered into by him in gootl faith and partly performed. In a later opinion of April 27, 1877, (XY Opins. — ,) the Attorney General refers to the ques- tion, whether the provision of Sec. 3709, Kev. Sts., retpiiring that contracts in general shall be preceded by advertisement, is mandatory or only directory, as one which has been much discussed, (see, for example, the reference to this question in Fowler v. United States, 3 Ct. 01. 47,) but is not required to be decided in that opinion. But whatever may be the true construction of this Section, it is clear that no ofdcer of the army, in the absence of express authority to do so from the Secretary of War, can be justitied in omitting to comj^ly with the provision in regard to advertising. 182 CONTRACT. tliat it Tvas no excuse for a iion-comi)liance with the statute, "by a quartermaster, that his contracts (made without adver- tisement) had been made with the most reliable parties and to the advantage of the United States.. XXXIX, 84. And heldthat the requirement as to advertising for proposals must be coraphed with in contracting for a supply of articles pur- chased ior trialy equally as if the contract were for the regu- lar yearly supplies. XXXYIE, 464 3. The main object of the advertisement is to induce a free and open competition for the contracts of the government and thus to protect the United States from fraudulent com- binations and collusive preferences in its business transac- tions. ^ At the same time the advertisement, in inviting i)ro- posals from the public, is properly to be viewed as a pledge on the part of the United States that the contract will, as a gen- eral rule, be awarded to the lowest bidder, provided he is a resi)onsible person and his bid is a reasonable one, (see pars. 1046, 1179, Army Eegs.,) and i)rovided, of course, he complies with the existing regulations — as to bond, &c. [See Regula- tions in regard to contracts, (prepared by a Board of which the writer was a member,) published in G. O. 10, Hdqrs. ot Army, of 1879, repeated and amended in G. O. 72 of same year and G. O. 40 of 1880.] XXXIX, 426; XLT, 115. The reservation not unfrequently added in the advertisement, that " the United States reserves the right to reject any or all pro- I)osals,'' is simply i^recautionary, and should not be, and is not, in general taken advantage of except where the lowest bidder fails to meet the legal and proper conditions. [See the Eegulations above indicated, of 1879 and 1880, where while the form ijrescribed for the advertisement — on page 3 of G. 0. 10, and page 6 of G . O. 72, of 1879, and page 6 of G. O. 40 of 1880,— contains this reservation, the general rule on the subject is indicated in a further paragraph — on i:)age 13 of G. 0. 10, and page 14 of G. O. 72, of 1879, and page 18 of G. 0. 40 of 1880.^] ^ See Harvey v. United States, 8 Ot. CI. 506. In regard to a statute, (similar to Sec. 3709,) governing the Post Office De- partment, the Supreme Cotirt, in Gartielde v. United States 3 Otto, 246, say : ^' The olvject of the statute w^as to secure notice, * * * that bidders might compete, that favoritism should be prevented, that efficiency and economy in the serv- ice should be obtained." ^* As follows : ^' Except in the rare cases where the United CONTRACT. 183 A further instance iu wliicli the Uuited States may i)roi)erly reject a bid or bids is in a case of frmul — as where the lowest bidder has colluded with other bidders or with the represent- ative of the United States, to impose a high price ui)on the gov^ernment. In such a case the bids of all bidders concerned in the fraud may i)roperly be rejected. XXXYII, 5C4. 4. Where the lowest bid is rejected as being unreasonably high, a new adveitisement must, (in the absence of an '' exi- gency " — see § 9 in/ray) be resorted to. XXXYII, 5G5. So where, — the lowest bid being rejected for a cause independ- ent of the amount bid, — the next lowest bid is an unreason- able one. XXXVI, 598. 5. A bidder, (unless otherwise bound in a formal bond or other express undertaking,) may of course withdraw his bid, which is simply an inchoate i)roi)osition and not in the nature of a contract, at any time before it is accepted.^ The accept- ance of a bid, however, i)roperly concludes both parties.^ So, where the lowest bid was a joint one, ^. e. one made by two or more persons jointly associated, — held that for the officer representing the United States, on accepting such bid, to allow one of the joint bidders to withdraw from the obliga- tion to enter into the contract, would be wholly unauthorized. XXXVI, 598. 6. An executive officer, in awarding and enteriug into a contract after advertisement, is not authorizetl to require from the contractor a stipulation at variance with the condi- tions stated in the advertisement, or to assent to such a stip- ulation it" proposed by him ; — for example a^ stipulation for States may elect to exercise its reserved right to reject pro- posals, contracts will be awarded to the lowest respousible bona fide bidder, who, when required, produces a proper article, and whose proposal thereior is not unreasonable in amount." * Such a withdrawal, however, does not release the other bidders, and the contract may be awarded to the lowest of the bidders remaining, if his bid be reasonable. Opinion of the Solicitor General of August 1^8, 1877, (XV Opins. — .) 'A formal notice to a bidder of the acceptance of his bid, and of the award to him of the contract, is beyond recall, and binding upon the United States as a comi)ieted obligation. An award thus made is in the nature of a pieliminary con- tract. Opinion of the Attorney General of April 17, 1877, (XV Opins.—.) 184 CONTRACT. tlie fiirnisliing of a quantity of supplies greater than that called for in the advertisement.^ XXXIX, 425. 7. Where the advertisement calls for proi)osals for supplies to be delivered at a particular ijlace si}ecified, the place of delivery is a material condition of the contract invited to be bid for^ and the same should therefore be awarded to the lowest bidder engaging to make delivery pt the place desig- nated. To prefer to such bidder another whose bid is lower, but whose offer is to make delivery at a different place, would be unauthorized and illegal, however convenient the place named by him might in fact be to the military authorities. XXXIX, 425 5 XLI, 115. [See note to § G, su])ra.\ 8. Where a bidder for a contract for army supi^lies, after the acceptance of his bid as being the lowest made, withdrew the same in Avriting and refused to enter into the contract, held that while he would be liable to a suit for damages if the United States suffered any loss on account of his defection, the military authorities would not be empowered absolutely to debar him from competing for or entering into future con- tracts with the United States. His action in this instance might indeed properly be considered in connection with the question of his responsibility as a bidder on a future occa- ^In an opinion under an Act of 1843, (similar to the exist- ing law,) requiring the letting of contracts in the navy upon advertisements for i:)roposals, it was held by Atty. Gen. Nel- son, (lY Opinions, 334,) that the Xavy Department was not authorized, " in awarding the contract to the lowest bidder, to modify its terms, as proposed for, in regard to the time of delivery^ or any other of its material elements. The obvious puri^ose," he adds, ^^ of the Act in question was to invite competition in the proposals ; and it therefore requires that the advertisement emanating frooa the department shall par- ticularize every thing that may essentially affect the contract. That the time of delivery may be, in a contract of this de- scription, a material element, the circumstances connected with this case clearly evince. JSfon constat, if the time had been extended, as now i^roposed, on the face of the adver- tisement, tliat other and lower offers than were received might not have been made. It may well be that a manutacturer may not be in a condition to deliver at one time, and yet be full}' capable of doiug so at another j and that, whilst he would be restrained bj^ this inability from comi)eting for a contract within the time limited by the proi)osals, he might have successfully done so had the extended time been adver tised.^' CONTRACT. 185 sioii, but as all bidding is intended to be free and open, it could not operate to exclude liim altogether from the priv- ilege of bidding.^ And aclded that it was to be regretted, in such a case, that the party had not been required to furnish a hidder^s bond according to the provisions of the Act of April 10, 1878. XLII, 504. 9. Sec. 3700, Eev. Sts., provides, generally, that the mak- ing of public contracts for supplies, &c., shall be preceded by an advertising for proposals " when the public exifjencies do not require the immediate delivery of the articles or perform- ance of the service." Exigencies growing out of a state of war, or hostilities with Indians, were probably mainly had in view, and it is exigencies of this class which have been con- sidered in the adjudged cases in the Supreme Court and Court of Claims.^ It is clear however that other exigencies may exist requiring that contracts or purchases be made at once or without the delay incident to advertising for proposals. Thus a loss of stores, structures, t&c, on hand, caused by an actus Dei or vis major^ as fire, storm, freshet, or a sudden riot or violent disorder 5 or a loss of supplies occasioned by the neglect of military subordinates in charge ,• or a failure of a contractor to fulfill a contract for supplies, transportation, or other service — might properly be regarded as constituting an "exigency" under the statute, if of such magnitude or in- jurious consequence to the army as to necessitate an immediate malcing good of the deficiency.^ The general rule, however, of the statute in requiring a notice and invitation to the public as a preliminary to the awarding of a contract, is founded upon a sound and well-considered public policy, and exceptions ^ See this opinion published, as concurred in by the Secre- tary of War, in Circular 1, Office of Commissary General of Subsistence, March 13, 1880. - See United States r. Speed, 8 Wallace, 83 ; Eeeside v. United States, 2 Ct. CI. 1; Mowry v. United States, Id. 08; Stevens r. United States, Id. 95; Flovd r. United States, Id. 429; Crowell v. United States, Id. ' 501; Baker r. United States, 3 Id. 343; Henderson i\ United States, 4 Id. 75; CLiilds i\ United States, Id. 170 ; Wentworth v. United States, 5 Id. 302 ; Wilcox v. United States, Id. 380 ; Cobb i\ United States, 7 Id. 471, and 9 Id. 291 ; Thompson v. United States, Id. 187 ; McKee v. United States, 12 Id. 505. ^ See G. 0. 1 of 1879, s^^ 22-25, pp. 14-15 ; do. 72, Id. p. 52 ; do. 40 of 1880, p. oS ; also McKee v. United States, 12 Ct. CI. 529-30. 186 CONTRACT. thereto, especially in time of peace, should be recognized as admissible only where, if the rule were strictly complied with, the public interests would manifestly be most seriously prejudiced.! XXXVII, 404 -, XXXIX, 527. 10. Thus, where a contractor failed in the performance of his contract, at a critical stage of an imi^ortant and much- needed public work, and at a time of the year when, if the delay were incurred of advertising anew, there would be risked a loss of the api^ropriation j and a greatly increased charge to the United States, as well as serious embarrassment to the military service, would be involved — held that the sit- uation might properly be viewed as an '^ exigency "justifying an immediate contract for the continuance of the work. XLir, 339. But where, notwithstanding that Congress had failed to make appropriations for the fiscal year and no extra session had been convened for the i)urpose of having the omission supplied, there remained ample time for advertising for pro- ! As to the authority who is to decide whether there exists such an exigency as is contemplated by the statute, the Su- preme Court, in United States v. Speed, 8 Wallace, S3, has held that it is ''the ofiicer charged with the duty of procuring supplies or services who is invested with this discretion." This description is rather general, nor is the term "the x)ur- chasiug ofiicer," by which the Court of Claims explains it, in Thompson v. United States, 9 Ct. CI. 19G, a much more pre- cise definition. It is clear, however, that a subordinate offi- cer chari^ed with the duty of being the immediate represent- ative of the United States in a contract or purchase should not, in general, venture to dispense with advertising, on the theorj^ of the existence of a public exigency, in the absence of in- structions or orders from a proper superior. Xor, on the other liand, will a superior officer, in entering into a contract for his command or brancli of the service, properly assume that an "exigency" exists authorizing him to dispense with the statutory forms, when the period is time of peace and no imperative necessity exists for the immediate delivery of the supplies or performance of the service proposed to be contracted for. It is to be noted that the cases both of Speed and Thompson related to contracts entered into during the late war. In the instructive opinions of the Attorney General on the "Fifteen i)er cent. Contracts" of Ax^ril 27 and IMay 3, 1877, (XV Opins. — ,) it is held that the "exigency" contem- l)lated by the statute can be one of time only, and that it can be regarded as existing oidy where an immediate delivery or performance is required by a public necessity. CONTRACT. 187 posals for certain contracts for supx)lies before the supi^lies tliemselves would be needed, Jield that the circumstauces did not justify a dispensing with the general rule prescribed by the statute, esi^ecially since, by the authority of Sec. 3732, Eev. Sts., contracts for these supplies could legally be made in the absence of an appropriation. XXXIX, 527. 11. Contracts "for personal services," specially excepted by the statute — Sec. 3700, Rev. Sts. — from the application of the provision as to advertising for i^roposals, are contracts for expert or skilled service to be performed by the contractor in person.^ XXXVIII, 238. 12. Under Sees. 3G79, 3732 and 3733, Kev. Sts., public con- tracts for supplies, &c., for which money has been appropri- ated by Congress, cannot legally be made to extend beyond the fiscal year for which the appropriations have been pro- vided, or to bind the government to the payment of any sum or sums not embraced in such api)ropriations. XXXI, 10, 392. Military contracts, (including leases,) will thus, where practicable, properly be made to run concurrently with the fiscal year in or for which they were made.^ XXXV, 013. So held that a contract of lease made for a term of years, (as three, five, or ninety nine years,) at a certain stated rent, would be in derogation of the existing law (Sec. 3079, Eev. Sts.,) and, unless specially authorized by statute, inoperative, even though providing that future rents should not be payable unless api:)ropriations were actually made for their ijayment.^ ^ As to the meaning of this term, see X Opins. of Attvs. Gen. 5, 201; also G. O. 10, Hdqrs. of Army, of 1879, p. 15; do. 72 of same, p. 52 ; do. 40 of 1880, p. 58. In the opinions of the Attorney General on the " Fifteen per cent. Contracts," of April 27 and May 3, 1877, (XV Opins. — ,) it is held that a contract for the cutting and dressing of stone for a public building was not a contract for "personal services," inas- much as such work was not to be performed by the contractor l^ersonally but by workmen employed by him. 'See Curtis v. United States, 2 Ct. CI. 151; IV Opins. of Attys. Gen. GOO ; IX Id. 18. ^ See the opinion of the Attorney General, of April 27, 1877, in the case of the " Fifteen per cent. Contracts," (XV Opins. — ,) where it is held that, in view of the provision of Sec. 3733, Eev. Sts., a contract for a public building cannot " be binding so far as to affix itself to future appropriations even if it is subject to the contingency that such appropriations shall be made." And an opinion of Atty. Gen. Mason is re- 188 CONTRACT. And adviser! that, where it is desired to occupy the j^remises for a longer term than one year, a lease should be taken to the end of the current fiscal year at a certain rent, and then a new lease be entered into for the next fiscal year, and so on ; a lease de novo being necessary for each fiscal year though the successive leases be mere repetitions and extensions of the original lease, and though it be expressly stipulated in the original lease that the United States shall have the priv- ilege of such extensions if desired. XXXII, 642 ; XXXVII, 222 ; XLII, G77 ; XLIII, 98. So held that a lease of land at a certain rent, for an imlefinlte term, would not, in the ab- sence of specific statutory authority, be legal or operative beyond the end of the existing fiscal year. XXXYI, 315. So of a proposed contract by the United States for the use, (for a fixed compensation,) of a ferry for an indefinite period. XLII, 454. But held that the provision of Sec. 3679, Eev. Sts., the main object of which was to protect the United States from arbi- trary expenditures and imi:>rovident pecuniary obligations on the part of executive officials, would not preclude the taking from a citizen, by the authority of the Secretary of War, of a lease for five or more years, of land required for military purposes, where no rent tchatever was reserved therein, or where the rent reserved was a mere nominal sum inserted by way of formal consideration — as one dollar i)er annum. XLII, 564. 13. Where the appropriation Act for a certain fiscal year approi^riated a certain sum for an arsenal, which was insuffi- cient to comi:>lete the proposed edifice, held, in view of the provisions of Sees. 3679 and 3733, Eev. Sts., that the Secre- tary of War, or the ordnance officer in charge of the work, would not be authorized to enter into a contract for the build- ing of the entire structure, but could legallj^ contract only ferred to, Avhere a contract of this class proposing to bind the government to loayments in advance of appropriations " was held to be of no validity, even though it provided that such contract should depend tor its validity upon the contingency that an appropriation should be made and such appropria- tion was in fact thereafter made." And similarly held by the Attorney General in the further opinion in regard to the same Contracts of May 3, 1877, (XY Opins. — .) CONTRACT. 189 for the buildiDg of such portion as couhl be constructed for the amount appropriated.^ XXXIX, G12. 14. Although public contracts cannot in general be made in advance of, or in the absence of, a proper ai)proi)riation for the puri)ose, or other siDecial statutory authority, yet from this rule are expressly excepted, by Sec. 3732, Eev. Sts., mili- tary (and naval) contracts "for clothing, subsistence, forage, fuel, quarters, or transportation," which, however, it is added, " shall not exceed the necessities of the current year."^ Such contracts may therefore be entered into irresi^ective of the adequacy of the appropriations, or entirely on credit, where Congress has omitted, (as it did in the session ending March 4, 1877,) to make any appropriations at all for the army for a fiscal year. But lield that by the term "current year" was to be understood current fiscal year, and that, in the excepted cases, the military authorities could bind the government by contracts only for necessary supplies for the fiscal year in which such contracts were made.^ XXXYIII, 504 ; XLII, 135. 15. Sec. 3G90, Eev. Sts., in providing that balances of appro- priations for any fiscal year remaining unexpended at the end of such year shall not be applied to the "fulfillment" of any contracts except those "properly incurred during that year," expressly excepts "permanent (or indefinite,") appropriations. The existing law, (Sec. 1G61, Eev. Sts.,) makes a permanent appropriation of a certain sum annually " for the purpose of providing arms and equipments for the militia." Held that a balance of this appropriation, remaining unexpended on the last day, (June 30th,) of a certain fiscal year, could legally be used for the payment of a contractor in December follow- ing, under a contract entered into, in Xovember, with the Ordnance department for the manufacture of an arm intended to be issued to the militia. XXXI, ^^t. 16. Under Sees. 3739-3742, Eev. Sts., it is illegal for an officer of the United States to enter into a contract or make a purchase of a firm or association, (not incorporated,) of ^ See the opinion of the Attorney General of Ai)ril 27, 1877, cited in the last note. ^ As to the reason of this statute, see the opinion of Xelson J. in the case of The Floyd Acceptances, 7 Wallace, Q^b. ^ To a similar eftect, see subsequent opinions of the Attor- ney General of June 19, 187G, and March 21, 1877, (XY Olfins. — .) 190 CONTRACT. which a member of or delegate to Congress is a member or in whicli one is i:)ecnniarily interested.^ XLII, 344. 17. Par. 1002 of the Army Eegnlations prohibits purchases by officers of the army "from any other i^erson in the military service." Held that this prohibition did not embrace civilians emi^loyed in the public service under the War Department, or in connection with the military administration, and there- fore did not preclude the making of a contract by an ord- nance officer, as representing the United States, with a civil employee at an Arsenal, for the use of an invention patented by the latter.^ XXI, 320 5 XLII, 308. 18. In view of the positive prohibition of Sec. 3737, Eev. Sts., that no contract or interest therein shall be transferred by the contractor, and the further i^rovision that any such transfer shall o^ierate as an annulment of the contract, '^ so far as the United States are concerned," held that an officer of the army representing the United States in a contract for military transportation, would not be authorized, of his own discretion, to consent or waive objection to an assignment, in whole or in part, of a contract, by the contractor, so as to admit the assignee to i^erform the service.^ XXXI, 436; XXXYII, 13. 1 That Sec. 3739, Eev. Sts., does not aftect contracts made with persons who have been simply elected members of or dele- gates to Congress, but have not actually become such by being sworn in — see opinion of the Attorney General of May 19, 1877, (XV Opins. — ,) citing XIV Opius. 400. ' See United States v. Burns, 12 Wallace, 251-2 ; X Opins. of Attys. Gen. 2. ^ That an assignment of a contract transfers no legal claim or right of action to the assignee, and that a contract when assigned is no longer binding upon the United States, see — Wheeler v. United States, 5" Ct. CI. 504 ; Wanless v. United States, 6 Id. 123 ; Gill v. United States, 7 Id. 523 ; McCord v. United States, 9 Id. 150 ; Francis v. United States, 11 Id. 038 ; X Opins. of Attys. Gen. 523. But it has been held by the At- torney General that the statute on the sul)iect, (Sec. 3737, Eev. Sts.,) is intended simply for the beneht and protection of the United States, whicli, therefore, is not comi)elIed to avail itself of a transfer by the contractor to annid tlie contract, but may recognize the same and accei)t and pay the assignee. ''Were it to be held," observes the Attorney General, "that a transfer of an interest would absolutely avoid the contract, it wouhl enable any party making a contract with the United States to avoid it by simx)ly transferring an interest therein, CONTRACT. 191 19. Wliere a contract lias beeu once formally entered into with a certain party, — for the officer representing the United States to assume to admit additional i)arties into the agree- ment and undertaking, (thus in fact consenting to a transfer by the contractor of an interest in the contract,) would be wholly unauthorized. XXXVI, 463. 20. A mere i^ower of attorney given by a contractor to another person authorizing him to receive for the contractor moneys coming due under the contract, cannot of course operate as a transfer of an interest therein ; but where, by a written agreement between a contractor and another party, the latter was empowered to receive the payments from the United States, in consideration of which he undertook to con- tinue and complete the work contracted for, held that such agreement was a power coupled with an interest, and operated as a transfer within the meaning of Sec. 3737, Eev. Sts.^ XXVIII, 340. 21. Where, by an express stipulation in a contract for quartermaster stores, made in accordance with a specific advertisement, the time within which the same were to be furnished to and received bj' the United States, Avas limited to a stated period, held that the Secretary of War would not be authorized to extend the operation of the contract beyond which is a construction manifestly inadmissible." Opinion in the case of the " Fifteen i)er cent, contracts,'' of April 27, 1877, (XV Opins. — .) And similarly held by the same authority in a later opinion of March 7, 1879, (XVI Opins. — ,) — that while the United States may avail iiself of an assign- ment to declare the contract annulled, it is not required to do so, but, if deemed to be for its interest, may recognize the assignee. But it is clear tliat an officer of the army could not properly assume to treat an assignment of a contract, (or inter- est therein,) as valid, without the authority and direction of the Secretary- of War. That for a mail contractor to contract with another person to transport the mail for him, and as his servant or employee, was not an assignment of his contract with the United States, was held in the recent case of Frye v. Burdick, G7 Maine, 408. 'See opinions of the Attorney General of April 27, 1877, (XV Opins. — ,) and March 7, 1879, (XVI Opins. — ;) also Francis i\ United States, 11 Ct. CI. 038. That a power coupled with an interest is irrevocable see Hunt V. Bousmaniere's Admrs., 2 Mason, 244 ; Wheeler r. Knaggs, 8 Hammond, 109 f McDonald i\ Admr. of Black, 20 Ohio, 185 ', VII Opins. of Attjs. Gen. 35. 192 CONTRACT. that i}eriod, so as to admit tlie delivery of additional stores under the same, hut that, for such additional quantity, it would be necessary to contract de novo in the regular legal mode, upon new advertisement, proposals, and award. XXXVI, 403. And held that the fact that the contract con- tained a stipulation to the effect that the same might upon mutual agreement be abrogated, modified, or extended, did not add to the authority of the Secretary in such a case ; such a stipulation being in derogation of law.^ XXXVII, 478 ; XXXIX, 054 ; XLI, 182. [But see authorities cited at end of note- to%ext paragraph.] 22. It is a general principle that after a government con- tract has been once duly consummated, the same cannot legally be modified as to anj- of its material stipulations by the consent of the immediate parties.- To agree to such a ^ In a case of a contract in the Post Office Department, con- taining a stipulation for extension, &c., by the authority of which the operation of the contract had been extended beyond the period expressly limited therein, although by a statute governing the case it was required that all such contracts should be nmde ui^on advertisement, proposals, &c., it was held by Attorney General Hoar, XIII Opins. 175-0, as fol- lows : — ^^ I am of the opinion that the provisions of that statute a])ply to tlie contract in question, and that, although the contract contained a provision for its extension and mod- ification at the pleasure of the contracting parties, such a provision was not authorized by law. If a contract, which the law only allows to be made in i^ursuance of an advertise- ment, could afterward be renewed and extended at the pleas- ure of the Postmaster General without any advertisement, it would be in tlie power of that officer and his successors in office, unless restrained by some subsequent act of the legisla- ture, to make for all future time such contracts as he might think expedient, without reference to the conditions con- tained in the original advertisement for proi)Osals, or to the terms upon which the contract was offered to. public compe- tition." -'' The power vested in the head of an executive department to make contracts for work or materials dai'ties. If they were, every legal guard against fraud and favoritism in making contracts could be easilv evaded." X Id. 480-1. The later authorities, however, api^ear to favor the exer- cise, by the head of a Department, of a discretion to consent to modifications of detail in the course of the execution of l)ublic contracts, where such modifications, (not being in contravention of law,) are found to be for the i)ublic interest, and are not of such a character as to oi)erate to the pecuniary disadvantage of the United States. See United States r. Corliss Steam Eng. Co., 1 Otto, 321; Opinion of Attorney General of April 12, 1878, (XY Opins. — .) ^ Where it is expressly stipulated in a contract that, in the event of non-j)erformauce, the contractor shall i)ay to the other i)arty a certain (reasonable) amount of money, the same will in general properly be treated, not as a penal sum but as liquidated damages — whether or not it be so designated in terms. See Ivinson v. Althorp, 1 Wyoming, 71; also citation in next note. But it is held by the Attorney General, in an opinion of Dec. 20, 1877, (XV Opins. — ,) that whether a forfeiture stipulated in a contract to be incurred b^' the con- tractor, in the event of non-performance, was to be viewed as a penalty or as liquidated damages, was a question of intent^ 13 d 194 CONTRACT. tractor, in settlement, after a failure fully to perform his contract, a certain percentage of payments, stipulated in tlie contract to be withheld from him in the event of such failure,^ (XXVIIT, 346, 005; XXXI, 93; XXXVII, 441; XXXIX, 341;) or to omit to charge a contractor with the difference between the contract price and the price which the govern- ment was obliged to i)ay in sui)plying by i)urchase in the market articles failed to be furnished according to the con- tract, where it was expressly stipulated in the contract that the amount of such difference should be charged against the contractor. XXXII, 6; XXXYII, 437. And held that the fact that the failure of the contractor was due not to his fault, but to hardship or misfortune, could not add to the authority of the Secretary of War in the matter.^ XXXYII, 437. 24. Where it was covenanted in a contract that ' ten per cent of each partial payment should be withheld until the comx)letion of the contract,' held that this reservation could not be continued so as to api^ly to payments under a second contract by which the agreement of the contract containing the covenant was in fact extended. This for the reason that the second contract, though an extension of the first, was in law and fact a new contract, and could not therefore be affected by a condition expressly limited in its operation to the life of a previous contract which had been fully completed. XLI, 625. 25. The Secretary of War, in the absence of authority from Congress, is not empowered, whatever be the merits of the case, to release a contractor from the due i)erformance of his and that the designation of the amount named as "liquidated damages" was not conclusive upon this question. In a case, therefore, where the forfeiture appeared to have been pre- scribed simply for the purpose of securing the performance, and the failure of the contractor had been without fault on his part and had caused no loss to the United States, it was held that the Secretary of War was authorized to release the contractor from the forfeiture. And see in this connection XII Opins. 112. ^ " The ten per cent, reserved I regard as being in the nature of liquidated damages, which having once accrued upon the forfeiture of the contract, be(;omes a part of the money of the government, which can Idc withdrawn from its uses only by law." IV Opins. of Attys. Gen. 284. And see II Id. 481. ^See II Opins. of Attys. Gen. 481; IX Id. 81. CONTRACT. 195 contract/ or to relieve or compensate liim on account of losses suffered by him in fulfilling or attempting to fulfill his con- tract, where there has been no breach on the part of the United States.^ In such a case Congress alone can grant relief.* XXXYII, 440. 26. Where a forfeitiire had been legally incurred by a con- tractor because of the non-performance of his contract within the time stipulated by its terms, held that the Secretary would not be empowered to relieve him therefrom on the ground that by an agreement or understanding between himself and the officer representing the government at the time of enter- ing into the contract, certain further time was to be allowed for the performance; such agreement? or understanding not having been incorporated into the formal written contract as made and executed by the parties, and being therefore quite ineffectual to vary its terms or operation.^ XLIII, 395. 27. Where, after a contract for quartermaster stores had been duly subscribed and entered into by and between the lowest bidder and the proper official representative of the government, it was ascertained that the former had failed fully to perform a certain contract sometime previoush^ made between himself and the United States, held that this fact could not authorize the Secretary of War to cancel the con- ^ See Opinion of the Attorney General of April 12, 1878, (XV Opius. — .) ^ In an opinion addressed to the Secretary of War, in regard to an application for relief by a contractor for work on the Washington Aqueduct, Atty. Gen. Black, (9 Opins. 81,) re- marks as follows: — "He now says he is doing the work at a loss, and asks you, in a memorial, either to give him a larger compensation than he bargained for, or else to release him from the contract. You have no authority to do eitlier of these things. You cannot absolve him from his obligation to do the work ; and, if he does it, you cannot authorize him to be paid for it at a higher x^i'ice than the contract stipu- lates for. =H: * # jj^ short you have no i)ower to relieve him from the hardship he complains of, either by gi^ing him damages, by releasing him from his present contract, or by making a new one. * * * if the contractor quits the work, or otherwise violates the covenants he has made with the government, he must do so at his own peril and that of his sureties." ^'See Brawlev ^'. United States, 6 Otto, 173 j Harvey v. United States, 8 Ct. CI. 501. 106 CONTRACT. tract tlius formally executed and enter into a new contract with another party. XL I, 258. 28. Where, in a contract with the quartermaster depart- ment for wood, it was covenanted that, if the wood furnished was deficient in quantity or quality, the quartermaster, repre- senting the United States in the transaction, should have the I)Ower to withhold, from the sum stipulated to he i)aid, such amount as might be necessary to indemnify the government against the deficiency, and no amount was so withheld, but the entire quantity of wood delivered was accepted, and the contractor, on the completion of his contract was paid in full ; but subsequently it was discovered that there had been a deficiency in the amount and quality of the wood as fur- nished; — Jield, in the absence of ony evidence of fraud on the part of the contractor, that he and his sureties could not be held liable on the bond given by them to secure the per- formance of the covenants of the contract. XXIX, 53. 29. Where a vessel was duly chartered from the owner by the quartermaster department, to carry coal from Philadel- phia to Key West at a certain freight, and while en route was stopped at the Delaware breakwater by the military authori- ties, and comx^elled, against the protest of the master, to dis- charge her cargo at Fort Monroe, held that the United States was legally bound to pay to the owner the full freight to Key West according to the terms of the contract. XX, 491. 30. It appears to be established that, in settling with a contractor under a duly executed contract, there may be ofi'set, against the amount due to him, an amount due hy him as liquidated damages under the terms of another contract which he has failed to perform.^ But where the amount due from the contractor is not liquidated by the contract, the government can have no right to insist that a certain sum fixed by itself as properly due from the contractor shall be set off against the amount due ^o him; and if the parties cannot mutually agree upon a balance, the proper course will in general be for the Secretary of War to decline payment until the account shall be adjusted by the Court of Claims, which has jurisdiction of all set-offs and counter claims on the part of the United States against contractors and claim- ants. [See Sec. 1509, Kev. Sts.] XXXII, 257. VSee IV Opins. of Attys. Gen. 554j XI Id. 126. CONVENING OFFICER. 197 31. Where, in tlie settlement of the account of a Railroad Company under a contract for military transportation, there was set off in the quartermaster department against the amount due, the sum of certain amounts regularly- and vol- untarily paid by the United States to the Company for trans- portation some five years previously, on the ground that these amounts Avere in excess of the usual rates, lieJd that such offset was without sanction of law and unauthorized, there being no evidence of fraud on the part of the contractor in obtaining^ the payments, or of collusion between him and the officers who represented the United States in receipting the accounts and maknig payment. XXXY, 291. 32. Sec. 3709, Rev. Sts., requires that when contracts are made for supplies or services, they shall be made in a certain form, but it does not necessarily i)reclude having i)ublic work performed by hired laborers where it is not deemed desirable to enter into a formal agreement with a coutractor for the puri)ose. So lield that the Secretary of War, under whose direction the appropriations for the construction of the new State, War and Xavy Department Building were required by statute to be expended, was emi)owered to cause the plas- tering, or other particular work therein callable of being properly done by hired day labor, to be so done, instead of under contract made upon advertisement and proposals, pro- vided he deemed it to be for the public interest to prefer the former mode. XLI, 121. CONVENING OFFICER. See seventy SECOND ARTICLE. SEVENTY THIRD ARTICLE. SEVENTY FIFTH ARTICLE $ 8. SEVENTY NINTH ARTICLE v^ 1. EIGHTIETH ARTICLE ^S 2. EIGHTY FIRST ARTICLE ^ 1. EIGHTY SECOND ARTICLE §> 1. ONE HUNDRED AND FOURTH ARTICLE. COURT MARTIAL, I $ 2, 4, 5, 8, 17. REPRIMAND ^ 1. EEVIEWDsG AUTHORITY $ 1. 108 CONVENINa ORDER — COUNSEL. CO^VEmNG ORBER, See seventy FIFTH ARTICLE $ 8. SEVENTY NINTH ARTICLE. EIGHTY FIRST ARTICLE § 2. ORDER, 11. RECORD § 1, c. COPY OF PROCEEDINGS. See ONE HUNDRED AND FOURTEENTH ARTICLE. CORRECTION OF RECORD. See record § 1, I. REVIEWING OFFICER § 3. REVISION. COUNSEL, I— IN CIVIL PROCEEDINGS. Under existing law, neither department nor other com- manders, nor officers sued or prosecuted on account of acts done in the performance of duty, are authorized to employ counsel — IT. S. district attorneys or other — at the expense of the United States. Any officer requiring to be defended or assisted by counsel in his official capacity may apply therefor to the Secretary of War, who, in a proj^er case, will refer the application to the Attorney General for action, according- to the provisions of section 17 of the Act of June 22, 1870.^ XXVI, 22, 306. [By this section, incorporated in Sec. 189, Eev. Sts., it was prohibited to the heads of the executive departments, other than the Department of Justice, to employ attorneys or counsel at the exi)ense of the United States, and declared that when in need of legal counsel or advice they should call upon the last named department to provide the same. See Proceedings at law against officer, &c. §2.] COUNSEL, II— TO ASSIST A JUDGE ADVOCATE. In cases of exceptional difficulty and public importance, civil counsel were formerly not unfrequently retained to ^See the directions published in G. 0. 15, War Dept., 1874. COUNSEL. 199 assist the judge advocate. Since the creation, however, of the office of Judge Advocate General of the Army, and of the corps of Judge Advocates, by the Act of July 17, 1862, such instances have been of tlie rarest occurrence. V, 446; XXII, 345. [Under the existing law, indeed, counsel could be employed, (at the public expense,) for this purpose only through the Department of Justi(;e upon the request or recommendation of the Secretary of War. See Proceed- ings AT LAW AGAINST OFFICER, &C., § 2.] COUNSEL, III— FOR THE ACCUSED. 1. An officer or soldier i^ut upon trial before a court mar- tial is not entitled as of right to have counsel i)resent Avith him to assist him in his defence, but the privilege is one which is almost invariably conceded,^ and where it is unrea- sonably refused, such refusal may constitute ground for the disapproval of the proceedings. IX, 538; XXXII. 519. A court martial, however, is not required to delay an unreason- able time to enable an accused to provide himself with coun- sel. XXX, 102. [See Xinety Third Article § 0.] 2. While reasonable facilities for procuring such counsel as he may desire should be afforded an accused, his claim must be regarded as subordinate to the interests of the service. Thus where an accused officer applied to the department commander who had convened the court, to authorize a par- ticular officer, Avhom he desired as counsel, to act in that capacity, and this officer could not at the time be spared from his regular duties without material i)rejudice to the public interests, held that the commander was justified in denying the api^lication, and further that the validity of the subse- quent proceedings and sentence in the case was not affected by such denial. XXXII, 519. 3. An accused, i^rior to arraignment, even if in close arrest, should be allowed to have interviews with such counsel, mil- itary or civil, as he may have selected. XII, 441 ; XXI, 141. So, his counsel should be permitted to have interviews with any accessible military' x^^rson whom it may be proposed to use as a material witness, or whose knowledge of facts may be useful to the accused in preparing for trial. XIX, 33. ^ Comi>are, on this subject. People v. Daniell, 6 Lansing, 44 j People V. Yan Allen, ^d X. York, 31. 200 COURT MARTIAL, I — AUTHORITY AND FUNCTION. 4. A military court has no authority, (analogous to that sometimes exercised by civil courts in criminal cases,) to assign counsel to an accused unprovided with counsel. XIIT, 400. Nor can such a court excuse one of its members to enable him to act as counsel for an accused. XXXV, 488, 490. COURT MARTIAL, I— AUTHORITY AND FUHCTIOIf. 1. Courts-martial are no part of the Judiciary of the United States, but simj^ly instrumentalities of the Executive i)ower. [Compare President, I § 1.] They are creatures of orders; the power to convene them, as well as the power to act upon their proceedings, being an attribute of command. [See Seventy second Article § 5 ; One hundred and fourth Article § 4.] But, though transient and summary, their judgments, when rendered upon subjects within their limited jurisdiction, (see Court-Martial, II § 1,) are as legal and valid as those of any other tribunals, nor are the same sub- ject to be appealed from, set aside, or reviewed, by the courts of the United States or of any State.^ Y, 656. 2. A court martial should in general be left to determine its own course of procedure, except where the same is defined by law or usage. It would be unwarranted by usage to re- quire in Orders that a court martial shall axiopt a certain procedure in any case or class of cases as to a matter prop- ^ See Dynes v. Hoover, 20 Howard, 79 ; Ex parte Vallan- digham, 1 Wallace, 243 ; Fugitive Slave Law Cases, 1 Blatch. 635 ; In re Bogart, 2 Sawyer, 402, 409 ; Moore v. Houston, 3 S. & R. 197 ; Ex parte Dunbar, 14 Mass. 392 ; Brown v. Wadsworth, 15 Verm. 170 ; People v. Van Allen, 55 iunished, civilly or criminally, by a court of com- mon law." Tyler v. Pomeroy, 8 Allen, 484. Where a court- martial has jurisdiction, "its proceedings cannot be collater- ally impeached for any mere error or irregularity committed within the sphere of its authority. Its judgments, when approved as required, rest on the same basis and are sur- rounded by the same considerations Avhich give conclusive- ness to the judgments of other legal tribunals, inchuling as well the lowest as the highest, under like circumstances." Ex parte Reed, 10 Otto, 13. I — AUTHORITY AND FUNCTION. 201 erly within its discretion. XXXIV, 138. Thus a commander could not properly order that courts martial convened by him should take testimony in cases in which the accused pleaded guilty, though he might properly recommend their doing so. XI, 234. [See § 9 infra.] 3. While a specific punishment may be recommended^ in Orders, to be adjudged by courts martial in a certain class of cases, it is not comi)etent to order such courts to adopt a par ticular form of sentence in any case. The duty and discre- tion of courts martial in the imposition of punishments are prescribed and defined by the xVrticles of War. XXXI, 354. 4. It may be said to be a x)rinciple of military law that a court martial is to be left independent as to matters legally or x)roperly AAithin its own discretion. Such a court, however, may not assume authority over a subject belonging to the province of the officer by whom it has been convened. Thus, Avhile it may decline to proceed with the trial of a case mani- festly not within its jurisdiction, it cannot i)roperly refuse so to proceed on the ground that it is not empowered adequately to punish the offender upon conviction ; or that officers junior to the accused have been placed upon the detail ; or that — the detail being less than thirteen — a greater number might have been put ui)on the court without injurj^ to the service j or that the accused has not been placed in arrest. A court declining to go on with a trial uj^on any such ground may be peremi^torily ordered to i^roceed : if it still refuses, the pref- erable course will ordinarily be to dissolve it in General Orders, (adding, if deemed desirable, an expression of cen- sure on account of its contumacy,) and to convene, for the trial, a court composed entirely of new members. XXI, 177 j XXV, 578 ; XXVIII, 57. 5. A court martial has no authority over the i^erson of an accused except when he is before it for trial. It cannot arrest him, or, by its own order, cause him to be brought to the place of trial j the compelling of his attendance before the court being a duty of the convening offlcer or post com- mander.^ XXII, GOG ; XXXIX, 44. So, a court martial has, as such, no authority to arrest, or to require its judge advocate or other ofiicer to arrest, a witness suspected of false swearing upon a trial which has been had before it : in such a case its ^ See note to § 8 infra. 20Ii COURT MARTIAL, I — AUTHORITY AND FUNCTION. proper course is to report the facts to the convening authority for his action. Ill, 109. 6. Charges are regularly and i^roperlj^ referred to a court martial for trial by the ofiicer who has constituted it, (or his superior,) and a court martial may in general properly decline to entertain charges otherwise submitted. The validity, however, of the proceedings or sentence of a court martial in any case will not be affected by the circumstance that the charges were in fact irregularly referred to it by a commander inferior to the convening officer and without having been ap- proved by him. XXII, 502 ; XXVI, 107. [See Charge, § 26.] 7. A court martial is not authorized, in its discretion and of its own motion, to reject or strike out a charge or specifica- tion formally referred to it for trial by competent authority, nor to direct or permit the judge advocate to drop or withdraw such a charge or specification, or enter a Jiolle prosequi as to the same. For such action the authority of the convening commander is requisite.^ But where, by a special plea or objec- tion, an issue is made by the accused as to the sufficiency of any pleading, the court, without referring the question to the convening ofiicer, is empowered to allow the plea or objection and quash or strike out the charge, &c. Ill, 230 ; XXIX, 370. [As to the authority of the court to direct an amend- ment of a charge or specification, see Charge § 28.] 8. When a court martial desires to have the benefit of the testimony of a party w^ho has not been introduced as a wit- ness by the prosecution or defence, it may properly call upon the judge advocate to have such party summoned, or — if he is a military person — may api^ly to the convening authority or post commander to have him ordered before it to testify,^ iC;ompare G. C. M. O. 13, Dept. of the Missouri, 1877; do. 3G, 79, Dept. of the Platte, 1877; do. 13, Id. 1878; do. 41, Id. 1880; do. 45, 48, Div. of Pacific and De})t. of Cal. 1880. 2 It has not been the practice in this country for the conven- ing authority to detail an ofiicer to attend a military court in a ministerial capacity— to summon witnesses, enforce the attend- ance of the accused, &c. In the special case, indeec], of the persons charged with complicity in the assassination of Presi- dent Lincoln, and tried by militaiy commission, it was ordered by the President— May Ist, 1805— as follows: ''That Brevet Major General ITartranft be assigned to duty as special provost marshal general fofcthe purposes of said trial, and attendance ujjon said commission, and the execution of its mandates." COURT MARTIAL, I— AUTHORITY AND FUNCTION. 203 and it may adjourn the trial for* a reasonable time to await his attendance. XXV, 578. 9. Where the accused pleads guilty, and the specification does not fully set forth the particulars of the offence, the court is authorized to call ui)on the judge advocate to introduce testimony sufficient to inform itself, as well as the reviewing officer, as to the extent of the criminality involved in the ofi'ence and the measure of punishment proper to be imx^osed. XXXIX, 206. 10. It is the duty of the court to see that injustice is not done the accused by the admission on the trial of improper testimony i)rejudicing his defence, or unfairly tending to aggravate the misconduct charged. In the interests of just- ice, therefore, the court may exclude such testimony although its aduiission may not be objected to on the part of the accused.^ On a similar ground or for the purpose of fully informiug itself of the facts, the court may, in its discretion, allow the introduction, by either side, of material testimony after the case has been formally closed.^ Such a proceeding, however, must be of course exceptional, and a party should not be permitted to offer testimony' at this stage, unless he exhibits good reason for not having produced it at the usual and proper time. XII, 401; XVII, 398. 11. In a case where — a plea of guilty having been inter- posed — the prosecution had closed, and the accused had pro- ceeded to present to the court a statement of defence, held that the court was authorized, in its discretion, to reopen the case and hear testimony relative to certain gross ill-treatment to which the accused in his statement had represented that he had been subjected, and which, he claimed, had excused or extenuated his offence. XXXI, 35. 12. A court martial, after having entered upon a trial which has to be suspended on account of the absence of material ^Compare the recent case of State v. O'Connor, 05 Missouri, 374. 2 Compare Eberhardt v. State, 47 Ga. 598; and see the Trial, by court martial, of B. G. Harris, (Ex. Doc. Xo. 14, Ho. of Keps., 39th Cong. 1st sess., p. 25,) where, on the day on which the accused was to present his final argument to the court, and which was two" days after the formal closing of the case, the defence was allowed to introduce new testi- mony on the merits. 204 COURT MARTIAL, I — AUTHORITY AND FUNCTION. witnesses, or for other cause, is authorized, in its discretion, to take up a new case not likely to involve an extended inves- tigation, and i)roceed with it to its termination before resum- ing the trial of the first case. Ill, 281 ; IX, G50 j XXYI, 548. 13. A court martial has no power to terminate its own existence or function. [See Seventy Fifth Article § 5.] Where therefore it has adjourned '' sine die,^^ (see Adjourn- ment § 4,) it may, without being formally reconvened in orders, reassemble and take up and try a case referred to it by the convening authority, through its jjresident or judge advocate, precisely as if it had not adjourned at all. It is its duty indeed to hold itself in readiness to try all cases so referred, until formally dissolved by the convening officer or his successor in the command. XIX, G28 -, XLI, 282. 14. A court martial is not legally dissolved till officially informed of an order, from competent authority, dissolving it. The proceedings of a court martial, had after the date of an order dissolving it but before the court has become officially advised of such order, will thus be quite regular and valid. Where an order dissolving forthwith a court martial has been duly officially received by the court and has thus taken effect, an order subsequently received revoking this order will be entirely futile. It will not revive the court, but the same, to be qualified for further action, must be formally re- convened as a new and distinct tribunal. XLIII, IGO. 15. Except where it sustains a challenge under Art. 8S, a court martial is not authorized to dispense with the attend- ance of a member.^ XXXVII, 34. [See Eighty Eighth Article § IG.] It cannot excuse a member to enable him to attend as a witness on the trial, (see Witness § 5,) or to act as counsel for the accused. XXI, 650 -, XXXV, 488, 490. IG. Where a court martial excused its judge advocate, and required its junior member to act as judge advocate in his stead, Jield that its action was wholly unauthorized and that its i)roceedings were x>i'Oi)erly disapi)roved.^ It is only the convening authority, (or his successor in command,) who can relieve or detail a member or a judge advocate. XXVIII, 198. ^Compare VII Opins. of Attys. Gen. 98. 2 See G. C. M. O. G2, War Dept., 1874. COURT 3IARTIAL, I — AUTHORITY AND FUNCTION. 205 17. vStrictly, communications from tbe convening authority to the court as such, (and vice versa,) should be made to, (and by,) the president as its organ 5 communications relating to the conduct of the prosecution to, (and by,) the judge advo- cate. XXrX, 33G. IS. There is no law i^rohibiting a court martial of the United States from sitting on Sunday, and the fact that a sentence of such a court is adjudged on that day can affect in no man- ner its validity in law. XXX EX, 321, 027. 19. The polling of a court martial, in the manner of a jury or otherwise, is a proceeding wholly unknown to military law. So, where an officer, acting as the counsel of a soldier on trial by court martial, demanded, on the court ruling adversely upon the admission of a special plea, that it be i)olled, — held that his action was wholly irregular as well as disrespectful to the court.^ XXXIY, 454. 20. A court martial is authorized, in its discretion, to sit with closed doors. Except, however, when temporarily closed for deliberation, courts martial in this country are almost invariably open to the public during a trial. XXIX, 34. 21. A court martial is authorized to exclude from its ses- sion any person who, it has good reason to believe, will endeavor to intimidate or interrupt the witnesses, or other- wise conduct himself in a disorderly- manner. XXIX, 237. 22. Where, after the accused has pleaded guilty , or after he has pleaded not guilty and the evidence for the prosecution has been i)resented, he effects an escai)e from military cus- tody and disapi^ears, he may properly be held to have waived his right of defence, and the court is authorized to x>roceed with its finding and, in the event of conviction, its sentence. XI, 260, 295 ; XXI, 160. Where, in such a case, the accused leaves counsel, the court may, in its discretion, allow such counsel to introduce evidence and present an argument. XIX, 487. 23. The remarking by the court, in connection with the finding or sentence, unfavorably upon an officer or soldier, (other than the accused,) whose conduct is exhibited by the testimony, or upon an act or practice deemed proper to be noted in the interests of military discix)line, though now com- parativelj' unusual, is sanctioned by the authorities as per- ' See G. C. m7o. 37, War Dept, 1873. 206 COURT MARTIAL, II — JURISDICTION. missible aDd regular iu a proper case.^ XXYIII, 626 ; XXIX, 216. 24. To detail as a military commission the same officers as those already constituting a court martial or vice versa, without dissolving the court first convened, though a proceeding for which there are precedents both in the Mexican war and the recent war, is one which should not be resorted to where, without material embarrassment to the service, it can be avoided. And this view is ai:>plicable, though with less force, to the case of a single officer proposed to be detailed upon two distinct military courts at the same time : such a detail should not be made unless, on account of the scarcity of offi- cers available for such duty, it cannot well be avoided. YII, 134 ; XIX, 495. See FIFTY FOURTH ARTICLE $ 6. SEVENTY FIFTH ARTICLE § 5. EIGHTY FOURTH ARTICLE § 2. EIGHTY SIXTH ARTICLE. EIGHTY EIGHTH ARTICLE § 12. NINETY THIRD ARTICLE $ 2. ADJOURNMENT ^ 4. CHARGE § 12. COUNSEL, III § 4. PLEA ^ 1, 2, 3-7. PRESIDENT, I § 1. RECORD ^ 5. REDUCTION TO THE RANKS, II $ 1. REPORTER $ 1. REVISION ^ 1, 2, 3, 6. SENTENCE AND PUNISHMENT $ 1, 6, 11 STATEMENT $ 3. WITNESS ^^ 9, 28. COURT MARTIAL, II— JURISDICTION. 1. Courts martial, (though, within their scope and province, authoritative and independent tribunals — see Court Mar- tial, I § 1,) are bodies of exceptional and restricted powers ' See Simmons § 609-707 ; Kennedy, 196-7 ; De Hart, 182-3 ; O'Brien, 268. In Jekyll v. Moore, 2 Bos. & Pul. 341, the expression of opinion by a court martial, in acquitting an accused, that the prosecution had been actuated by malice, was held not to constitute a libel. 207 and jurisdictiou; tlieir cognizance being confined to the dis- tinctive classes of offences recognized by the military code.^ Their jurisdiction is cri mined, their function being to assign, (in proper cases,) punishment : the}' have no authority to adjudge damages for personal injuries or private wrongs.^ XXYII, 454 ; XXVIII, 328. 2. The jurisdiction of a court martial is co-extensive with the territory of the United States. XI, 234, 351; ^LXYJ^ 574. While it Avill in general be more for the interest and convenience of the service to bring an accused officer or sol- dier to trial near the locality of his offence, he may with equal legality be tried by a conrt convened in any other i)art of the United States. XI, 234, 351. 3. But for an offence of a military character committed within a foreign country, as in Canada or Mexico, an officer or soldier is not liable to be tried by a court martial convened within the United States, except where, at the time of its commission, he was in such country as part of an invading force in time of war, or otherwise in a military capacity under military orders. XXX, 43 ; XXXI, 454. Thus where a sol- dier, having deserted from a i30st near the frontier of Canada and crossed into that country, was encountered there by the captain of his company, towards whom he conducted himself with gross disrespect, committing an offence which under ordinary circumstances would have been a violation of the ^Ex parte Wilkins, 3 Peters, 209; Barrett v. Crane, 16 Verm. 24G ; Brooks v. Adams, 11 Pick. 441 ; Brooks v. Davis, 17 Id. 148; Brooks v. Daniels, 22 Id. 408; Washburn i\ Phil- lips, 2 Met. 29G; Smith v. Shaw, 12 Johns. 257; Mills v. Mar- tin, 19 Id. 7 ; In matter of Wright, 34 How. Pr. 221 ; Duilield V. Smith, 3 SerQt. & Pvawle, 590; Bell v. Toolev, 12 Iredell, 605; State t\ Stevens, 2 McCord, 32; Miller r.'^Seare, 2 W. Black. 1141 ; VI Opins. of Attys. Gen. 425. "A court mar- tial is a court of limited and special jurisdiction. It is called into existence by force of express statute law, for a special purpose, and to i^erform a particuhir duty ; and when the object of its creation is accomplished, it ceases to exist. * * * If, in its proceedings or sentence, it transcends the limit of its jurisdiction, the members of the court, and the officer wlio executes its sentence, are trespassers, and as such are answerable to the partv injured, in damages, in the courts.*' 3 Greenl. Ev. § 470.*^ -See 3 Greenl. Ev. § 471,476; United States v. Clark, 6 Otto, 40 ; Warden i\ BaUey, 4 Taunt. 78. 208 COURT MARTIAL, II— JimiSDICTION. 20tli Article of War ; Jield that, ou liis being subsequently arrested within the United States, a court martial, in trying him as a deserter, could not at the same time legally take cognizance of the other offence. XXVI, 574. But where a military offence was committed by a soldier while a part of a detachment temporarily in Mexico under military orders, by reason of having been marched across the Eio Grande from Texas in i)ursuit of marauding Indians, held that the offence thus committed was within the jurisdiction of a court mar- tial subsequently convened in Texas.^ XXXYIIl, 603. Where the offence was committed within the United States, the mere fact that the x^arty has been arrested on foreign soil, (as in the case of a deserter from our army arrested on the British side of the Red River of the Xorth,) cannot of course affect the authority of a court martial to pass upon his offence on his being brought within our territorj^ XXXII, 446. 4. In order to become amenable to the military jurisdiction, an officer or soldier must have been legally and fully admitted into the military service of the United States. Thus held that an officer of State volunteers appointed by a governor of a State, but not yet mustered into the United States service, was not amenable to the jurisdiction of a court martial of the United States for an offence committed while engaged in recruiting service under the authority of the governor. XII, 475. So held that the making of fraudulent representations in the course of the preliminaries to an enlistment — as in the '' declaration of the recruit" — and before the enlistment was legally complete and the soldier thus fully in the United States service, did not constitute an offence within the cognizance of a court mar- tial. XXXIX, 511. [See Sixty Second Article § 7.] 5. An officer or soldier, (except as otherwise ijrovided in the Sixtieth Article,) ceases to be amenable to the military jurisdiction for offences committed while in the military ser- vice, after he has been separated therefrom by resignation, dismissal, being dropped for desertion, muster out, discharge, ^ See IV Opins. of Attys. Gen. 55. Whether a disobedience of an order to march, for such a purpose, within tlie territory of a foreign nation with which the United States was at peace, and which had not autliorized an entering of its domain by armed forces of the United States, would be a disobedience of a ''lawful" order, (see Twenty First Article § 7,) aud a mihtary offence — qucvre. 209 &c., and lias tliiis become a civilian.^ The old Englisli pre- cedent of Sackville's case,^ (which appears mdeed to stand alone even in England,) has not been followed in this conntry or recognized in our law. I, 395 ; II, 49 ; XII, 470 ; XIII, 108 ; XIX, G4, 71; XXI, 37; XXXI, 34, 48, 571; XXXIII, 354; XXXIV, 422; XXXV, 049; XLII, 313. A discharge of a soldier, when subject to trial and pun- ishment for a military offence, is a formal waiver and aban- donment by the United States of jurisdiction over him. XXXIV, 400. Nor does a soldier, after having once been discharged, — as where he has been dishonorably discharged by sentence, — remain liable to the military jurisdiction, for desertion or any other military offence committed before dis- charge, by reason of being still held in military custody as a prisoner in confinement under the same sentence ; for he is then held not as a soldier but as a civilian convict. XXXI, 34; XXXIII, 354. Xor can a i)erson, who, by reason of acceptance of resigna- tion, dismissal, discharge, &c., has become wholly detached from the military service, be made liable to trial by court- martial, for offences committed while in the service, on the ground that such offences were not discovered till after he had left the army. XXXVII, 374. The returning by a dismissed, &c. officer to the service under a new commission does not revive a jurisdiction, for offences committed while he was in the service, which had lapsed upon his being separated from it. V, 314; XXXV, 049. [It is to be understood that the general rule of the non- amenability to military trial of officers and soldiers, after dis- charge, dismissal, &c., is subject to a specific statutory excep- tion, viz. that provided for in the concluding i^rovision of the Sixtieth Article.^] ^See this principle repeated and illustrated in G. C. M. O. 4, 10, War Dept., 1871 ; G. O. 90, Dept. of Pennsvlvania, 1805 ; do. 43, Middle Dept., 1805 ; do. 22, Dept. of the Mis- souri, 1800. - Xote the counter dictum of Lord IMansfield, in Parker c, Clive, 4 Burrow, 2419, (dated in 1779,) that officers of the army, " after resigning their commissions, cease to be objects of military jurisdiction." •^ As to the question of the constitutionality of this p^o^^sion, see Sixtieth Article, § 13, note; also note to § 8, infra. 14 D 210 COURT MARTIAL, II— JURISDICTION. 6. A soldier, however, provided he has not been in fact dis- charged, may be brought to trial by court martial after the term of service for which he enlisted has exijired, provided, be- fore such expiration, i^roceedings with a view to trial have been duly commenced against him by arrest or service of for- mal charges.^ By such arrest or service the military jurisdic- tion attaches, and, once attached, trial by court martial, and punishment, — upon conviction, — may legally ensue, though the soldier's term of enlistment may in fact expire before the trial be entered upon. In the leading case on this point, of a seaman in the navy, {In re Walker, 3 American Jurist, 281,^) the Supreme Court of Massachusetts held, (Jauy. 25, 1830,) as follows: "In this case the petitioner was arrested, or i)ut in confinement, and charges were i^referred agaiust him to the Secretary of the Navy before the expiration of the time of his enlistment; and this was clearly- a sufficient commencement of the prosecution to authorize a court-martial to proceed to trial and sentence, notwithstanding the time of service had expired before the court-martial had been convened." And, to illus- trate the injurious consequences of an opposite ruling, the court goes on to remark that " if any of the class of offences not punishable at common law," and '' of which no other courts, excepting courts-martial, can take cognizance, should be com- mitted by any seaman immediately before the exi^iration of his term of service, he would escape with impunity. He might be guilty of the grossest insults to his officers ; of disobedience of orders in the most critical moment to the shij) ; and in the hour of battle he might refuse to fight, and there would be no power to punish him." So held by the Judge Advocate General, in a case of a soldier of the regular army, arrested on the day before the expiration of his term of enlistment, with a view to a trial for a military offence by court martial, — that the jurisdiction of the court had duly attached, and that his trial might legally be proceeded with. XXVI, 512. And simi- larly held in repeated 6ases of soldiers and officers of regular and volunteer regiments. Y, 313 ; VII, 24 ; XII, 352; XIV, 229 ; XVI, 502 ; XXVII, 599 ; XXVII, 193, 348. ' See G. 0. M. O. 10, War Dept., 1871. ^And see Judge Story's charge to the jury in United States V. Travers, 2 Wheeler Or. 0. 509 ; In the matter of Dew, 25 L. R. 540 ; In re Bird, 2 Sawyer, 33. II — JURISDICTION. 211 But lield that a soldier could not legally be brought to trial for an oWQUQd committed after Ms term had expired^ (but before actual discharge,) unless, indeed, at the time of commission, he was voluntarily remaining in the service in the performance of duty or otherwise consenting to be subject to military author- ity. XXX, 91. And held that a soldier could not be made amenable to trial for an offence committed after the expiration of his enlistment, by the mere fact tha,t at the time, he was duly held in arrest awaiting trial for an offence committed be- fore the expiration of his term ; the jurisdiction which had attached for the puri:)oses of the trial and punishment of this offence not being capable of being extended to include the case of an offence committed by the party under a distinct legal status. XXXIY, 98. Of course, if, after the jurisdic- tion — by arrest or service of charges — has attached, the sol- dier is discharged from the service, such jurisdiction wholly ceases. XXXV, 40G. 7. Bj^ the YIth Amendment of the Constitution, civilians are guaranteed the right of trial by jury ^' in all criminal pros- cutions." Thus — in time of peace^ — a court-martial cannot assume jurisdiction of an offence committed by a civilian with- out a violation of the Constitution. It is only under the ex- ceptional circumstances of a time of war that civilians may, in certain situations, become amenable to trial by court-martial.^ XIX, 41, 475 ; XXXVIII, 641. [See § 8, note, infra; Forty Fifth Article § 1 and note 3 ; Sixty Third Article § 5, 6, 7 J Spy § 1.] A civilian brought to trial before a court-martial, cannot, hj a plea of guilty or other form of legal assent, confer juris- diction upon the court, where no jurisdiction exists in law.^ XXXIX, 500. ^ See, in support of this view — Ex parte Milligan, 4 Wallace, 121-123 ; Jones r. Seward, 40 Barb. 5G3 ; In matter of Mar- tin, 45 Id. 145 •, Smith r. Shaw, 12 Johns. 257, 2G5 ; In matter of Stacy, 10 Id. 332; Mills v. Martin, 19 Id. 22; Johnson i\ Jones, 44 Ills. 142, 155; Griffin v. Wilcox, 21 Ind. oSiy ; In re Kemp, 10 Wis. 359 ; Ex parte McBoberts, 16 Iowa, 605; An- trim's case, 5 Philad. 288 ; III Opins. of Attvs. Gen. 690 ; XIII Id. 63. 2 Compare People v. Campbell, 4 Parker, 386 ; Shoemaker V. Xesbit, 2 Eawle, 201 ; Moore r. Houston, 3 Sergt. & Eawle, 190 ; Duliield v. Smith, Id. 599 ; also One Hundred and Third Article § 2. 212 COURT MARTIAL, II — JURISDICTION. 8. Any statute by which any class of civilians is attempted to be made amenable to trial by court-martial for offences committed while civilians and in time of peace, is necessarily unconstitutional. XLII, 250. Thus held that Sec. 1361, Eev. Sts.,^ could not properly be construed as applying to prisoners at the Leavenworth Military Prison w^ho had been sentenced to be dishonorabl}^ discharged in connection with their con- finement, and as a i^reliminary thereto, (see Discharge § 8,) and whose discharge had duly taken effect ; that to interpret such provision as intended to include and apply to a class of prisoners no longer in the military service, but become civilians by discharge therefrom, while not a construction made necessary by the terms of the statute,^ was to attribute to Congress an unconstitutional enactment, and therefore in- admissible. So, in several cases of prisoners thus confined at this Prison as civil convicts after discharge, and sought to be brought to trial for escape or attemj^t to escape, insubor- dination, assault, &c., committed while so confined, — Iwld that the accused were not amenable to trial by court-martial, but, (unless their offences were cognizable by the civil courts,) were legally punishable only by being subjected to the discipline of solitary confinement prescribed by Sec. 1353, Eev. Sts., for convicts disobeying orders or violating the regulations of the institution.^ XXXVII, 214 ; XLI, 293, 322 ; XLII, 132, 155, 249. ^This Section is as follows:" ^' All prisoners under confine- ment in said military prison undergoing sentence of courts- martial shall be liable to trial and punishment by courts-mar- tial under the rules and articles of war for offences committed during the said confinement." 2 a There can be no liberal construction of the terms (of a statute) which give jurisdiction to courts-martial." Opinion of the Solicitor General, (in regard to the amenability, to the jurisdiction of courts-martial of the cadets of the Naval Acad- emy,) of July 10, 1877, (XY Opins. — .) ^ A different view, however, of Sec. 1361 was taken by Judge Foster, the U. S. District Judge for the District of Kansas, in the case of Ira Wildman, a prisoner who, while confined at Leavenworth after discharge, had been brought to trial by court-martial for an escape, &c., and sentenced to an addi- tional term of imprisonment. Upon an applicatiou by him for release, by writ of habeas corpus^ from this second sentence, on the ground that at the second trial lie was not a soldier but a civilian and was not therefore subject to the jurisdiction COURT MARTIAL, II — JURISDICTION^ 213 9. Sec. 1.361, Rev. Sts. ai)plies only to prisoners in confine- ment at the military prison at Leavenwortli. So, in a case of a prisoner, who, while confined, after discharge under sen- tence, at the prison at Alcatraz Island, was brought to trial by court martial for an escape and sentenced, on conviction, to an additional term of imprisonment, held that the second trial — the prisoner being then a civilian — was wholly with- bf a court martial, the judge, (at Chambers, July, 1876,) de- nied the application. The view of the situation, as taken by him, is expressed not positively but in an interrogative form as follows: "This law" (Sec. 1361) ''was in force when the sentence" (imposing dishonorable discharge and pursuant to which the soldier was discharged in fact) "was made; and is not the judgment of the court discharging the soldier so quali- fied by the law as to still continue his relations to the service so far as to hold the prisoner subject to military law until his term of imprisonment is fully completed?" The judge con- cludes as follows : " I am not i)rei)ared to declare that Con- gress, in making such provisions, exceeded its constitutional powers to make rules for the government and regulation of the forces. The question is one of great importance, involv- ing the validity of the Act of Congress, and the personal lib- erty of the individual, as also the discipline and management of the military inisons, and I hope this decision may be brought before some higher tribunal for further consideration." Unfortunately this hox)e could not be gratified, Wildman hav- ing taken the law into his own hands and effected a success- ful escape. The ruling of Judge Foster in this case is concurred in by the Attorney General in an opinion of March 26, 1870, (XVI Opins. — ,) in which it is held that a prisoner of the class under consideration, though no longer in the service, is a military prisoner, and, for i>urposes of discipline and pun- ishment, is still so connected with the military service that his case is to be regarded as gne " arising in the land forces" in the sense of the Constitution, and therefore one in regard to which Congress may exercise its j)ower of regulation and government. A decision of the Supreme Court on the question involved, (and which would also cover the general question of the au- thority of Congress to make civilians amenable to the military jurisdiction in any case in time of peace,) would be as welcome to the student of military law as was the decision of that court in Tarble's case. [See Habeas Corpus § 3, note.] The enactments, other than Sec, 1361, which at lu-esent declare such amenability are — the last clause of the Sixtieth Article of war, expressly authorizing the trial by court martial, (for the particular offences si^ecified in the Article,) of military 214 COURT MARTIAL, II— JURISDICTION. out legal authority and the sentence of no efiect/ XXXI, 47 . XXXVII, 541. ' 10. So, where a prisoner confined at the Leavenworth prison after a discharge from the service, was brought to trial by court martial for an ofi'ence, (desertion,) committed not dur- ing his confinement but more than a year and a half before he was received at the prison under his original sentence, held that Sec. 1361, Eev. Sts., furnished no authority for such trial, and that the court was therefore without jurisdiction and the sentence void. XLI, 228. 11. To give a court martial jurisdiction of the person of an ofQcer or soldier charged with a military offence, it is not necessary that he shall have been subjected to any particular form of arrest, or that he shall have been arrested at all, or even ordered to attend the court. Here, as before a civil tribunal, his voluntary appearance and submission for trial is all that is essential. XXYIII, 27. [See Arrest, I § 1.] 12. It is no objection to the assuming by a court-martial of jurisdiction of a military ofi'ence committed by an officer or soldier, that he may be amenable to trial, or may actually have been tried and convicted, by a criminal court of the State, &c., for a criminal ofience involved in his act. Thus a soJdier may be tried for a violation of Art. 21, in striking or doing other violence to a superior officer, after having been convicted by a civil tribunal for the criminal assault and bat- tery. So, an officer or soldier may be brought to trial under persons after their discharge from the military service, (see Sixtieth Article § 13 ;) and Sees. 4824 and 4835, Eev. Sts., making the inmates of the '' Soldiers Home" and '' National Home for Disabled Volunteer Soldiers," respectively, " sub- ject to the rules and articles of war." [As to the constitu- tionality of a further kindred provision — that of Sec. 1230, Ilev. Sts., authorizing the trial of officers dismissed by order — see first note under Dismissal, III.] As to all enactments of this class, the opinion of the Judge Advocate GeneraL(in the absence of an adjudication of the question by the Supreme Court,) remains, with due deference to the high authorities who have expressed difi'erent views, as stated in the text. It is clear however that no military officer, or court martial is authorized to treat, in i)ractice, a statute of the United States as unconstitutional until it has been so pronounced by compe- tent authority. 'This view is approved, and the last sentence of the pris- oner declared inoperative by the Secretary of War, in G. C. M. O. 4, War Dept., 1871. COURT MARTIAL, II— JURISDICTION. 215 a cliarge of "Conduct to the prejudice of good order and mili- tary discipline" for the military offence (if any) involved — see Sixty Second Article § 1 — in a homicide or a larceny, of which, as a civil offence, he has been acquitted or convicted by a criminal court.^ And the reverse is also law, viz., that the civil court may legally take cognizance of the criminal offence involved, without regard to the fact that the party has been subjected to a trial and conviction by court-martial for his breach of military law or discipline. In such instances the act committed is an offence against the two jurisdictions and may legally subject the offender to be tried and punished under both.=-' Y, 140; XLI, 187; XLIII, 210. [See One hun- dred AND Second Article § 4.] 13. It cannot affect the authority of a court martial to take cognizance of the military offence involved in an injury com- mitted by a soldier against an oflicer, that, before the trial, the latter has resigned or been otherwise separated from the army. XXXII, 623. 14. Whether a soldier may legally be held amenable to trial ^ As to the measure of the imnishment, upon the conviction of the military offence, see Sentence and Punishment § 11. -That an officer may be amenable to the civil and the mili- tary jurisdiction at the same time for the same act, see cases of Steiner and Howe, VI Oi^ins. of Attys. Gen. 413, 50(3. In the former case it is held that the '^ conviction or acquittal of an officer by the civil authorities, of the offence against the general law, does not discharge him from responsibility for the military offence involved in the same facts." In the lat- ter case it is observed: "An officer may be tried by court martial for the military relation of an act, after having been tried by the civil authorities for the civil relations of the same act." And see III Opins. 749, and compare Moore v. Illinois, 14 Howard, 19-20. In a case published in G. C. :\1. O. 20, Hdqrs. of Army, 18G9, an officer was charged with and con- victed of " Conduct to the prejudice of good order and military discipline," for the killing of a soldier, for which, as '' man- slaughter," he had previously been acquitted by a civil court. And see cases in G. O. 78, Dept. of the East, 18G9 ; G. C. M. O. 50, Dept. of the Missouri, 1871. In cases of double amenability, while — in view of the subordination of the military to the civil power — the civil jurisdiction is entitled to the preference, yet, in general, that jurisdiction which is first fulhj attached is ordinarily properly allowed to have the precedence in its exercise over the other. See JEx parte McHoberts, 10 Iowa, GOG ; VI Opins. of Attys. Gen. 423; G. O. 25, Hdqrs. of Army, 1840. 216 COURT MARTIAL, II— JURISDICTION. by court martial for an offence committed by him while on furlough^ will depend upon the nature of the offence and the circumstances of his situation. In general, indeed, where he is thus absent at his home, or at such a distance from his sta- tion and from troops that bis offences will not directly preju- dice military discipline,^ he will not render himself amenable to the military jurisdiction, unless indeed he commits a deser- tion. XXXIX, 340. [See Twenty First Article § 10.] 15. In March, 1870, the president of the *' Xational Home for Disabled Volunteer Soldiers," (a civilian,) convened, at the Home, a court-martial composed of eight inmates of the same, (all civilians, but designated by their former rank in the volunteer service, as '^ Surgeon," " Captain," " Sergeant," and "Private,") for the trial, on charges of desertion and other offences, of another (civilian) inmate. The court tried the accused, convicted him, and sentenced him to a term of imprisonment. The proceedings and sentence were approved by the convening authority, who thereui:>on applied to the Secretary of War for an order designating a military ijrison for the confinement of the party in execution of his sentence. Held, (upon a reference of the case for opinion, by the Secre- tary of War,) that the proceedings were unprecedented, un- authorized ah initio J and void as a whole and in detail ; that the provision in the Act establishing the Home, that the in- mates should be '' subject to the rules and articles of war in the same manner as if they were in the army,"^ conveyed no authority for such a court as that constituted and composed in this case ; and that the sentence adjudged by the same could not legally be executed in the manner proposed or oth- erwise.^ XXX, 286. ^ Compare Ex parte McRoberts, 16 Iowa, 600, cited iil note to Fifty-ninth Article § 5. 2 As to the question of the constitutionality of this provis- ion, now contained in Sec. 4835, Eev. Sts., (and of the simi- lar provision of Sec. 4824, relating to the inmates of the " Soldiers' Home,") see note to § 8, supra. ^ It is inaccurately stated in the report of the case of Een- ner v. Bennett, 21 Ohio St. 434, (December, 1871,) that no in- mate of the National Home had ever been subjected to a trial by court-martial. The instance referred to in the text, how- ever, is the only one known of such a trial. cottrt of inquiry — custom of the service. 217 ske sixty second article $ 1. EIGHTY THIRD ARTICLE $ 1, 2, 8. CADET ^ 8. ORDER, II ^ 4. RETIREMENT $ 11. SUSPENSION § 2, 10. COUET OF INQUIRY. See ONE HUNDRED AND THIRD ARTICLE $ 10. ONE HUNDRED AND FOURTEENTH ARTICLE $ 6. ONE HUNDRED AND FIFTEENTH ARTICLE. ONE HUNDRED AND NINETEENTH ARTICLE. ONE HUNDRED AND TWENTY-FIRST ARTICLE. BOARD OF INVESTIGATION $ 1, 2. BOARD OF SURVEY $ 5. REPORTER $ 2. STATUTES— CONSTRUCTION OF $ 12. . WITNESS $ 3, 8. COWARDICE. See FORTY SECOND ARTICLE $ 1. ONE HUNDREDTH ARTICLE $ 1. CUSTOM OF THE SERVICE. See eighty THIRD ARTICLE $ 6. NINETY SECOND ARTICLE $ 2. ONE HUNDRED AND TWELFTH ARTICLE $ 3. ONE HUNDRED AND FIFTEENTH ARTICLE $ 4 ABSENCE WITHOUT LEAVE $2. DISQUALIFICATION. SENTENCE AND PUNISHMENT $ 6, 8. 218 DEATH SENTENCE — DEFENCE. D. DEATH SENTENCE. See ninety-sixth AETICLE. DEFECTS IN PEOCEEDINGS, SENTENCE, &c. While there are numerous defects, errors, or omissions, which may well be deemed sufiScient to induce, on the part of the reviewing authority, a disapproval of the proceedings or sentence of a court martial, there are comparatively few which should be regarded as fatal to the legal vahdity of the same. Where the court, as shown by its authentic record, was legally constituted and composed and had jurisdiction of the case, and its sentence is a legal one, i. e. one by which a legal punishment is adjudged the accused, a defect in its pro- ceedings which does not amount to a violation of, or a failure to comply witb, a statutory requirement^ should not in general be regarded as affecting the validity in law of the proceed- ings or sentence. [See more fullj^ in note to Eecord § 3.] For instances of errors and irregularities held not to con- stitute fatal defects, see Seventy third Article § 3 ) Sev- ens Y fifth Article § 8 ; Eighty fourth Article § 4, 5 ; Eighty eighth Article § 14 and note 5 Ninety second Article § 3; Ninety" third Article § 2 ; Ninety fourth Article § 2 ; Ninety sixth Article § 1 ; One Hundredth Article § 2 j Adjourniment § 2 5 Arrest, I § 9 ; Coun SEL, HI § 2 ,• Court Martial, I § 6 j Interpreter § 1 ; Judge Advocate § 18; Member of the Court § 3, 5; Eecord § 1, f ; Witness § 15. DEFENCE. 1. In order that he may not be embarrassed in making his defence, the accused ])arty on trial before a court martial should be subjected to no restraint other than such as may DEFENCE. 219 be necessary to enforce bis i^resence or prevent disorderly conduct on liis part. Except, therefore, in an extreme case, as where, the accused being charged with an aggravated and heinous offence, there is reasonable ground to believe that he will attemi^t to escape or to commit acts of violence, the keep- ing or i)lacing of irons upon him while before the court will not be justified.^ Even in such a case it will be preferable to place an adequate guard over him. XXXI, 102; XXXII, 274, 633. 2. The accused will, almost as a matter of course, (see Counsel, HE § 1,) be allowed to be assisted in his defence before the court by suitable counsel,^ and if ignorant of his privilege in this particular, will proi^erly be advised of the same. The proper and usual practice is for the court to ask him before the formal arraignment if he desires to have coun- sel ; the question and his answer being stated in the record. If he prefers to conduct his defence unaided, he should in general be left quite free to present it in his own way, how- ever inexpert may be his course of i)rocee(ling, subject of course to reasonable objections to the admission of incompe- tent evidence, &c., on the part of the judge advocate. Y, 214. 3. It is the right of the accused, and may be most impor- tant to his defence, that he be allowed to be present during the reading, at the outset of a session, of the proceedings of a previous day, as indeed during all the material proceedings of the trial. [See Record § 1, d.] He cannot therefore legally be excluded from the court room at this stage. He may waive however the right to be then i)resent, and if he voluntarily absents himself during this interval, the validity of the pro- ceedings is not affected. XXIY, 488, 555. 4. The fact that the accused is an officer of high rank should not be regarded as constituting a ground for allowing him any special right or privilege in Jiis defence before a court martial. [See Evidence § 2.] The administration of justice by a military, as by a civil court, must be strictly im- partial, or it ceases to be pure. All persons on trial by the 1 Compare G. C. M. O. 62, Dept. of the Missouri, 1877 ; do. 55, Id., 1879 ; and — as to the civil iiractice — Lee v. State, 51 Miss. 566 ; People v.. Harrington, 42 Cal. 165. 2 See G. C. M. O. 25, War Dept., 1875 ; also Ninety Third Article § 6. 220 DEPARTMENT COIHIMANDER — DESERTION. one species of tribunal, as by the other, are deemed to be equal before the law. XI, 204. See THIRTEENTH ARTICLE. THIRTY EIGHTH ARTICLE $ 7. THIRTY NINTH ARTICLE. SIXTIETH ARTICLE v^ 9, 10, 15. SIXTY FIFTH ARTICLE § 5. ABSENCE WITHOUT LEAVE § 2. ARREST, I ^ 3. CHARGE § 5, 20, 26. COURT MARTIAL, I $ 10. DESERTION ^ 5, 6, 7. ENLISTMENT ^ 3. ORDER, J §6', ID. II $ 1, 3. PROCEEDINGS AT LAW AGAINST OFFICER, &c. $ 1, 2, 4, DEPARTMENT COMMANDER. See FOURTH ARTICLE ^ 3. THIRTIETH ARTICLE § 3. FIFTY NINTH ARTICLE § 2,6. SIXTY SIXTH ARTICLE. SEVENTY SECOND ARTICLE $ 4, 5, 6. EIGHTY FIRST ARTICLE $ 3. NINETY FIRST ARTICLE $ 3. ONE HUNDRED AND FOURTH ARTICLE $ 4-8. ONE HUNDRED AND TWELFTH ARTICLE § 2, 3. BREVET RANK § 4. DEVOLUTION OF COMMAND. DISMISSAL, II $ 4. LOSS OF FILES § 2. POST COMMANDER $ 3. DEPOSITION. See NINETY FIRST ARTICLE. WITNESS $ 9, 10, 11, 30. DESERTION. 1. Desertion is an unauthorized absenting of himself from the military service, by an oflQcer or soldier, with the inten- tion of not returning. In other words, it is the violation of military discipline familiarly known as absence without leave, (whether consisting in an original absenting without authority, DESERTIO^^ ' 221 or in an overstaj'ing of a defined leave of absence,) accom- panied by an animus remanendij or non revertendi; this animus constituting the gist of the offence. In order to establish the commission of the specific offence, both these elements — the fact of the unauthorized voluntary withdrawal, and the intent permanently to abandon the service — must be proved. The intent may be inferred, not indeed from the fact of absenting alone, but from the circumstances attending this fact, and here the duration of the absence is especiall3' material. Thus the circumstance that the absence has been exceptionally protracted and quite unexi)lained will in general furnish a l)resumption of the existence of the necessary intent. An unauthorized absence, however, of a few hours, terminated by a forcible apprehension, may, under certain situations, be sufficient evidence of such intent and thus i^roof of a deser- tion 5 while an absence for a considerable interval, unattended by circumstances indicating a i)uri)oseto separate permanently from the service, or to dissolve the pending engagement of the soldier, may be proof simply of the minor included offence. In order to determine whether or not the officer or soldier absented himself with the intent not to return, i. e. whether his offence was desertion or absence without leave, all the circumstances connected with his leaving, absence and return, (whether compulsory or voluntary,) must be considered to- gether. Each case must be governed by its own peculiar facts, and no general rule on the subject can be laid down. YIII, 109; XXYI, 34G; XXXIII, 123. 2. Where an officer left his post on a three days' leave of absence and did not return to duty or report himself at the proper time, but absconded to Canada with a large amount of government funds, held, on his being arrested some mouths subsequently" in the United States, that he was clearly charge- able with the offence of desertion.^ Hi, 230. So where an officer having been guilty of sundry embezzlements aud frauds, and become involved in debt, and being on the point of being- placed in arrest, obtained, by means of wholly false repre- sentations, a brief leave of absence from his post for the ex- pressed purpose of visiting a certain place named; and was subsequently apprehended at a place quite other and much more distant than that designated, and while rapidly travel- " ~^See oTa 332,^^ar Dept., }S63. 222 * DESERTION. ling CR route for a still more remote locality; — lieldj iu the absence of any evidence to rebut the presumption thus raised, that he was properly chargeable with having absented him- self with the animus of a deserter. XXXVIII, 622. 3. The proof of a desertion should include the proper evi- dence of an enlistment or its equivalent,^ (according to the terms of the Forty Sev^enth Article,) together with evidence of an unauthorized absenting of himself, animo non revertendij by the accused. But that a soldier has been charged with a desertion is no evidence that he has committed the offence. Thus held that the mere fact that a soldier, absent without authority, luul been arrested and returned to his regiment as a deserter, was no proof w hatever of the offence charged. II, 520. So held that a mere entry on a morning report book, descriptive roll, or other official statement or return, that a soldier deserted on a certain day, was not legal evidence of a desertion by him, but was evidence only that he had been charged with desertion.^ XXII, 15. So, a rei)ort from the Adjutant General's Office containing extracts from the muster- rolls of a regiment on which a soldier of the same was noted as having deserted on a certain date, held incomi^etent evi- dence of the fact of desertion, upon a trial of the soldier for that offence.'^ XII, 28. Similarly held that the mere state- ment of a first sergeant, given as testimony on the trial of a soldier of his company charged with desertion, that the accused "deserted" at a certain time and j)lace, was insufficient as proof of the offence charged, being indeed but an assertion of a conclusion of law. In such cases it is for the witness simply to state the facts and circumstances, so far as known to him, attending the act charged; it being the province of the court alone to arrive at the conclusion that the offence has been committed. XXXVIII, 040. To convict a deserter ^ That care should be taken not to omit the proof of an enlistment, (or its legal equivalent,) in cases of desertion, has been lepeatedlv enjoined in the General Orders. See, for example, G. O. 2, Dept. of the East, 1803; do. 52 Id. 1801; do. 30, Dept. of Virginia, 1803; do. 38, Dept. of the Platte, 1871; do. 7, Dept. of ('alifornia, 1872. And in this connec- tion, see note to Enlistment § 1. - (Compare G. 0. M. O. '33, Dept. of the Missouri, 1875. ^ Comx)are Hanson v. S. Scituate, 115 Mass. 330. DESERTION. 223 upon an accusation merely, however formally and officially the same may be made, would be as unwarranted in law^ as it would be unjust in fact. XXXVII, 590. 4. The nature of the offence of desertion is well illustrated in cases of escape. The mere fact that a soldier, while await- ing trial or sentence, or while under sentence, (and not dis- charged from the service,) escapes from his confinement, is not proof of a desertion on his ijart, since he may have had in view some minor object, such as the procuring of liquor, &c.^ But an escape, followed by a considerable abse: ce, esi^ecially if the soldier is obliged to be forcibly apprehended, is strong x)resumptive evidence of the existence of the intent necessary to constitute the crime. So, though the absence involved may be comj^aratively brief, the circumstances ac- companying the escape or attending the apprehension, may be such as to justify an equally strong i)resumption. An escajje, with intent not only to evade confinement but to quit the service, while the party is held awaiting proceedings for desertion, is of course a second or additional desertion. As to the nature of the offence which may be involved, there is properly no substantial distinction between an escape while awaiting trial or sentence and an escape while in con- finement under sentence. An escaiie indeed from an impris- onment imi^osed by sentence would probably be more likely to be characterized by an animus non revertendi than an escape from a merely preliminary confinement in arrest. So, an escape from confinement while awaiting trial ujjon a grave charge, which must entail upon conviction a severe i)unish- ment, would naturally be more generally so characterized than an escape from an arrest upon a charge of inferior con- sequence. Undoubtedly, in the great majority of cases, escape is deser- ^ See a case of this nature, (an escaping in order to obtain liquor,) in G. O. 32, Dept. of the South, 1873; and compare the case in do. 87, Id., 1872, in which a conviction of deser- tion is disapproved on the ground that the evidence showed "merely an escape from the guard house without intention to leave the service or the vicinity of the post." And see in this connection Samuel, 321, where to be 'Hliscovered," after a short absence, ''in the pursuit of some accideutal temporary object, though perhaps otherwise illicit," is instanced as not indicating an intent, by the offender, "to sever himself from the service.'' 224 DESERTION. tion ; the precedents however show that it is not necessarily so ^ ; and, upon the mere fact alone that a soldier has liber- ated himself from military custody, it is not just to convict him of having designed to dissolve his contract and perma- nently abandon the military service. XXXI, 282 5 XXXV, 626; XXXVII, 291, 597 5 XXXVIII, 43 5 XLI, 119. Of course an escape from legal military custody is always an offence^ and the soldier who has escaped may, (where his act does not amount to a desertion,) be brought to trial for such offence as "conduct to the prejudice of good order and military dis- cipline." X, 574 ; XII, 251. [See Sixty Second Article § 6.] It need hardly be added that an escape from imprisonment under sentence, effected by a party who has been dishonorably discharged under the same sentence, cannot constitute a desertion or other offence, the party at the time of escape being no longer in the military service. XXXV, 626. [See Court Martial, II § 7. J 5. Held to be no defence to a charge of desertion that the accused, at the time of the enlistment which he is charged with having abandoned, was an unapprehended deserter from the army; an enlistment of a deserter being not void but voidable only. XXXIV, 499, 623. [See Enlistment § 3.] 6. It is no defence to a charge of desertion that the soldier was induced to abandon the service by reason of ill-treatment, want of proper food, &c. : such circumstances can only palli- ate, not excuse, the offence committed. XXXIV, 411. So, in a case of a Swiss, who, having enlisted in our army, deserted after two years of service, held that it was no defence, (though, under the circumstances, matter of extenu- ation,) that his act had been induced by an intense nostalgia or maladie du pays. XXVIII, 496. So, held, in a case of a desertion by a German, that the fact that he had received a notification from the military authorities of the Xortli German Emi)ireto report at home for miUtary duty under the penalty of being considered as a deserter from the German army, con- stituted no defence to a desertion committed by him from our service.^ XXXIV, 411. 7. It is however a complete answer to a charge of desertion ^ See cases cited in last note. ^ As to the principle of the right of expatriation, as asserted in our j)ublic law, see Sec. 1999^ Rev. Sts. DESERTION. 225 before a court martial, that the accused Las previously been " restored to duty without trial," as sanctioned by par. 159, Army Regulations, provided he has been so restored by com- petent authority, i. e. the commander who would bave been authorized to convene a general court for his trial : otlier- wise, however, when so restored by a superior not dulj' author- ized. Ill, 253 ; yi, 418. 8. The forfeiture of the rights of citizenship, and the inca- pacity to hold office under the United States, imposed upon deserters by the Act of March 3, 1805, (Sees. 199G, 1998, Rev. Sts.,) can be incurred only upon and as incident to a convic- tion of desertion by a general court martial, duly approved by competent authority.^ XXXII, 370 j XXXIII, 221; XXXY, 464; XXXYIII, 434; XXXIX, 433; XLII, 30. These disabilities, though attaching to every such conviction, may be removed by an executive i)ardon of the offender. XXXV, 85. [See Pardon § 2.] 9. The forfeiture of pay and allowdhces prescribed for deserters by pars. 1357 and 1358 of the Army Regulations, (see Pay and Allowances § 9, and note,) can be imposed, in any case, only upon a satisfactory asx^ertainment of the fact of desertion. The same may indeed legally be enforced in the absence of an investigation by a military court, as for instance ux)on the restoration to duty without trial, by the order of competent authority, under par. 159 of the Army Regulations, of a deserter as such. But in general, in this case equally as in that of the statutory liability, (see § 8,) the forfeit- ure can safely be applied only upon the trial and conviction by court martial of the alleged deserter. VII, 325. The conviction must of course be duly approved; if it be disajiproved^ the soldier cannot legally be subjected to the forfeiture, since he cannot be treated as a deserter in law. XXVII, 202 ; XXXV, 638 ; XXXVI, 82. Xor can he be subjected to the forfeiture ^ Such is believed to have been the uniform course of ruling in the civil courts. See State v. Symonds, 57 IMaine, 148 Holt V. Holt, 59 Id. 404; Severance v. Healy, 50 X. Hamp 448 ; Gotcheus v. Matthewson, 01 X. York, 420, (and 5 Lan sing, 214; 5S Barb. 152;) Huber i;. Reilly, 53 Pa. St. 112 McOafferty v. Guyer, 59 Id. 110. As to the liability to male f/ood to the United States the time lost by a desertion^ also incident upon a conviction of tliis oflence — see Forty Eighth Article § 1-5. 15 D 226 DESERTION. if lie is acquitted, though the fiu cling be disapproved by the reviewing authority. XXXI, 19. A removal, in Orders of the War Department, of a charge of desertion entered by mistake upon the rolls against a soldier, oi)erates to relieve him of any and all stoppages which have been charged against his pay account for forfeitures authorized by the Army Eegulations in cases of deserters. XXXIX, 413; XLI, 518. 10. A deserter cannot legally be subjected to any forfeiture other than those prescribed by statute or army regulation. He incurs for example no forfeiture of his own personal prop- erty. So, where certain property left by a deserter in his quarters was sold by the authorities of the post with intent to devote the proceeds to the post fund, held that such proceeds, upon the subsequent arrest of the deserter, should be paid over to him. XXXV, 454. So, a soldier, by reason of hav- ing deserted, does not forfeit bounty money which has been paid him ui)on enlistment or subsequently, or any other money found in his possession u]3on his arrest. And such money cannot legally be withheld from him, to be api3ropriated to a regimental or post fund or any other purpose, but, being his own personal property, unaffected by his offence, must be left in his possession.' XIII, 329 j XV, 128; XVI, 168, 595; XXV, 400. 11. That desertion 2)er se does not so taint the record of a soldier as to disqualify him to receive a final honorable dis- charge, or to enjoy the rights to pay and bounty incident upon such a discharge, is now fully and finally settled. [See Bounty § 5 ; DiscHARaE § 6.] 12. The reward of thirty doUars, made payable by par. 156, Army Regulations, as amended by G. O. 325, War Dept. 1803, is not due merely on the apprehension of a de- serter: he must also be delivered ''to an ofQcer of the army at the most convenient post or recruiting station.^ The fact of the offer of a reward for the arrest of a deserter does not ^ The actual payment of the compensation in such cases is authorized by the appropriation Acts, (see, for example, that of May 4, 1880,) which, in appropriating for the incidental expenses of the quartermaster department, include as an item — " for the apprehension, securing and delivering of de- serters, and the expenses incident to tlieir i)ui'suit." DESERTION. 227 authorize a breacli of the peace or commission of an illegal act in making the arrest.^ XXVIII, 530. 13. The amount of the reward, — to cite from G. O. 325 of 1863, — is in fall '' for all exi)enses incurred in apprehending, securing, and delivering a deserter." Disbursements made by a civilian, where no arrest is affected, are at his own risk, and cannot legally be .reimbursed by the military authorities. XX, 470. 14. The legal liability imposed upon the soldier by par. IGO, Army Eegulations, to have the amount of the reward stopped against his pay, is quite independent of the punishment which may be imposed upon him by sentence of court martial on conviction of the desertion. Such stoppage is incident ujion the conviction,'^ and need not be directed in the sentence : courts-martial indeed have sometimes assumed to impose it, like an ordinary forfeiture of i)ay, but its insertion in the sentence adds nothing to its legal effect. XII, 326. 15. Where a soldier, charged with desertion, is acquitted, or where, if convicted, his conviction is disapproved by the competent reviewing authority, he cannot legally be made liable for the amount of a reward paid or payable for his arrest as a deserter, since in such cases he is not a deserter in law. XXVI, 347 ; XXX, 47. 16. Where a soldier for whose apprehension as a supposed deserter the reward of $30 has been paid, is subsequently brought to trial upon a charge of desertion, and is found guilty not of desei*ion but only of the lesser and distinct ofi'ence of absence without leave, he clearly cannot legally be held liable for the reward by a stoppage of the amount against his pay. In such a case, the instrumentality resorted to by the United States for determining the nature of his ofi'ence — the court martial — having i^ronouuced that it was not deser- ^ See, in this connection. Clay v. United States, Devereux, 25, in which an officer, who, under the orders of a superior, had, without previouslj^ procuring proper authority to enter and search from a civil magistrate, broken into a dwelliug house for the purpose of securing the arrest of certain desert- ers, was held to have committed an unjustifiable trespass, and his claim to be reimbursed by the United States for the amount of a judgment recovered against him on account of his illegal act was disallowed by the Court of Claims. 2 See to a similar effect, the recent opinion of the Attorney General referred to in the next note. 228 DESERTION. tion, the government is bound by the result, and to visit upon him a penalty to which a deserter only can be subject, would be grossly arbitrary and wholly unauthorized. More- over such action would be directly at variance with the terms of par. IGO of the Army Eegulations which fixes such lia- bility upon the soldier tried, in the event only of his convic- tion of desertion.^ XXYI, 347, 662 5 XXYII, 255, 306 5 XXXI, 468^ XXXIY, 533, 590; XLII, 315, 535; XLTII, 222. 17. Where a civil official, having made an arrest of a de- serter, concealed him from the military authorities, and after- wards permitted or connived at his escape, recommended that the Attorney General be requested to instruct the proper U. S. District Attorney to initiate proceedings under Sec. 5455, Eev. Sts. XLI, 481. 18. Every desertion includes an absence-with out-leave. Upon a trial for desertion, the accused is tried also for the absence-without-leave involved in the offence charged.^ If acquitted, without reservation, of the desertion, he is acquitted also of the lesser offence. If convicted, as he may be, (see FiNDiNGr § 8,) of the lesser offence only, under a charge of the greater, he is acquitted in law of the latter. XXXIII, 123. See forty EIGHTH ARTICLE. FIFTIETH ARTICLE. FIFTY FIRST ARTICLE. ONE HUNDRED AND THIRD ARTICLE $ 1, 2, and note. ARTIFICIAL LIMBS $ 1. CHARGE § 22. ^ ENLISTMENT § 5, 6. EVIDENCE ^ 12. FORFEITURE, I $ 1, 2. PARDON ^ 12, 13. PAY AND ALLOWANCES § 19. PLEA § 2, 5. PRISONER OF WAR $ 8, 11. SENTENCE AND PUNISHMENT $ 14. ^ This conclusion was concurred in by the Attorney Gen- eral in his Opinion of March 24, 1880, published in G. O. 21, Hdqrs. of Army, 1880. 2 See XIII Opins. of Attys. Gen. 460. DEVOLUTION OF COMMAND— DISBURSING OFFICER. 229 DEVOLUTION OF COMMAND. In the absence of any law or regulation making it essential that a command of a department or military division should be exercised by an officer specifically assigned thereto by the President, held that, upon the general commanding the de- partment or division being temporarily required to leave and cease to exercise his command, the same, in the absence of any assignment of a commander by the President, would regularly, according to the general i)rinciple of the devolu- tion of military command, devolve upon the senior colonel, (or commanding officer next in rank to the department or division commander,) serving in the department or division command, who would properly exercise the command of the department or division until the return of the absent com- mander, or till a new assignment was made by the President. XLII, 111. DISAPPROVAL or PROCEEDINGS, &c. See approval OR DISAPPROVAL OF PROCEEDINGS, &c. DISBURSING OFFICER. 1. A disbursing officer of the army who has paid out pub- lic moneys upon vouchers which i^rove to have been false or forged, is i)ersonally responsible to the United States for the amount of the loss j and it is the usage of the government to hold such an officer so responsible, however iuuocent of crim- inality he may be ; the fact that he has acted in good faith not affecting his legal liability. Such an officer, further, is not entitled to call u])on the government to prosecute a civil suit against the i)arty chargeable with the fraud, but he may legally himself initiate such a suit if he desires to do so for his own indemnity. Except i)erhaps in some instances of shght loss, where the Secretary of AVar may deem himself authorized to make good the amount to the officer out of the fund appropriated for the contingencies of the army, the lat- ter cannot look to the War Department for reimbursement. 230 DISBURSING OFFICER. It is of course open to liim, however, to apply to Congress for relief. XVI, 635 ; XXVIII, 20, 42 ; XXXII, 423. 2. It is in accordance with the usage of the military serv- ice, as well as the general practice under existing laws, for an officer of the army charged with the disbursement of pub- lic funds, to i)ursue in his own name and representative capacity the proper legal remedies when such funds are ille gaily appropriai^ed or withheld by third parties. This official function of the officer cannot properly be imposed upon the Head of his Department. The Secretary of War cannot be required to institute the legal proceedings, nor would his doing so make the claim any more a public claim of the United States than it is as prosecuted by the disbursing officer in his official cai3acity. Thus advised, in the case of such an officer, a portion of whose i3ublic funds were in the possession of a Bank, as an authorized public depositary, at a time when the same stopped payment and went into insolvency, that the officer should file and prove his claim before the liegister in Bankruptcy and prosecute the collection of the same so far as necessary and practicable; and further that a due and reasonable diligence on his part in pursuing the legal meas- ures oi3en to him for realizing the amount for which he was officially responsible would furnish the strongest support to any application, which he might in future prefer, to be dis- charged from liability for any loss to the United States result- ing from the failure of the depositary. XXXV, 365. 3. Congress, in appropriating money for the new State, War and Xavy Department Building, has provided that the amounts shall ''be expended under the direction of the Secre- tary of War." While the Secretary would thus be author- ized to commit the disbursing of the funds employed to any proper person, yet advised, in view of the policy of the law as expressed in Sec. 1153, Eev. Sts., that the Secretary would properly designate as the disbursing agent the engineer offi- cer engaged in superintending the work, especially since — as provided in said Section — the duty of disbursing would thus be performed without any charge to the United States. XIJ, 283. See sixtieth ARTICLE § 5, 0, 9, 10, 11. SIXTY SECOND ARTICLE ^ 7. GAMBLING. TRANSPORTATION OF PUBLIC FUNDS. DISCHARGE. 231 DISCHARGE. I. Honorable and Dishonorable Discharge distin- guished. 1. Three separate forms of discharge of soldiers are author- ized iu our law : 1. The ordinary regular discharge at the end of the term of enlistment and by reason of its expiration, and which is necessarily an honorable discharge : 2. The sum- mary discharge authorized, by the Fourth Article of War, to be given to a soldier before his term of enlistment has ex- pired, by the order of the President, the Secretary of War, or a department commander, and which, as these officials cannot punish^ and are simply invested by the Article with a discretion to cancel a contract when the public interest or convenience requires it, is also an honorable discharge in law : 3. The discharge imposed as a punishment by general court martial^ (under the authority of the same Article,) and known as "dishonorable" discharge. XIX, 321; XXXIY, 358; XXXVI, 537; XXXVII, 230; XXXVIII, 342; XLII,311. [See Fourth Article § 3.] 2. Dishonorable discharge, being punishment, can be au- thorized only by sentence of a general court martial upon trial and conviction. Xo executive or military official, (except in executing such a sentence,) can give or order a dishonorable discharge, nor can a soldier be subjected to such a discharge by reason of any proceedings commenced or i^rosecuted against him but not resulting in such a sentence. Thus the fact that a soldier has been for a long period held in confine- ment under military arrest, or that he is held in confinement tinder a sentence, (which did not also impose discharge,) can furnish no legal ground for giving him a dishonorable dis- charge from the service, (XXVIII, 556; XXX, 278;) nor can the fact that he has been arrested by the civil authorities, or convicted by a civil court, subject him to such a discharge. XXXI, G23 ; XXXVIII, 007. In all cases, indeed, of sum- mary discharge given by order under Art. 4, the cause or occasion of the discharge may properly be stated in writing in the body of the discharge certificate or endorsed upon it. So, if thought proper, the space usually reserved at the bot- tom of the formal certificate for the statement of "character'^ 232 DISCHARGE. may be cut off or left unfilled. Sucli statement, however, is no part of the discharge, and, whether the character given be good or bad, cannot affect its legal operation, (XXXI, 557 ;) and whatever the circumstances or ground of the discharge, as existing, or as set forth in or ux3on the discharge certificate, the soldier discharged can be subjected to none of the conse- quences incident to a dishonorable discharge from the service: in law his discharge is an honorable one.^ On the other hand, a discharge adjudged by sentence of court martial being necessarily a punishment, cannot be other than dishonorable : a sentence '^ to be honorably discharged" would be a nullity. Ill, 426. Though an accused be sentenced simply "to be dis- charged'^ — the word "dishonorably" not being used — the effect of the sentence will be to impose a dishonorable discharge equally as if the full and usual term had been emjiloyed : a court martial can impose no discharge other than a dishonor- able one. XXXI, 583 j XXXVII, 658. II. Honorable DiscHARaE. 3. Where an honorable discharge has once duly taken effect by the delivery of the formal certificate, (see Fourth Arti- cle § 1,) it is final and cannot be revoked unless obtained by fraud? But in such a case the revocation should be made within a reasonable time : otherwise the government will be deemed to have waived the defect. XXIX, 45. A mere order for a discharge may of course be recalled or suspended at any time before it is executed by the delivery of the discharge ordered. XXIX, 508. Where an ofiicer of volunteers had been duly mustered out of service — a form of honorable dis- charge — and was thus a civilian, held that a revocation in orders of his muster out, and a substitution therefor of a dis- honorable discharge, would — in the absence of any fraud in the case — be wholly unauthorized and illegal. VI, 478 j XI, 1975 ^^? 584; XXV, 541. 4. Where a soldier, by making an alteration in his " descrii)- tive list," so as to cause it to appear that his term of enlist- ' See XIV Opinions of Attys. Gen. 583. ^ See opinion of the Attorney General of May — 1870, (XVI Opins. — ,) in which it was held that an honorable discharge obtained by gross falsehood and fraud was revocable by the Secretary of War. DISCHARGE. 233 ment, wliich was in fact five years, was three years only, indnced the regimental commander to give him an honorable discharge at the end of three years' service ; Jield, upon the fraud being presently discovered, that the discharge might legally be revoked and the soldier be brought to trial by court martial under the 99tli (now G2d) Article of War. XXI, 390. But where, by competent authority, according to the present 4th Article, an honorable discharge was given to a soldier who was at the time in arrest under charges, held that such discharge — no fraud being imputable to the sol- dier — was final, and could not legally be revoked. XXIII, 483. 5. An honorable discharge once duly made and delivered to a soldier is final as to his rights to pay, allowances or bounty due at the date of its taking efl'ect. He cannot there- after be subjected to any of the consequences of a dishonor- able discharge. XXVIII, 540. Thus, where a soldier was arrested, tried, and sentenced for mutiny, but before action could be taken upon his sentence, the record of his trial was, with other proj^erty, seized and destroyed by the enemy ; and the soldier having meanwhile been held in confinement for a long period, was subsequently honorably discharged; — held that he was entitled to pay, alloAvances and bounty, precisely as if none of these proceedings had been had. XXII, G24. 6. The fact that a soldier has been a deserter does not affix an irreparable taint upon his status or service when returned from desertion, or preclude his receiving an honorable dis- charge, if either he be restored to duty without trial, or having been tried and sentenced, he yet, by reason of his imi^rison- ment being fully executed or being remitted before the end of his term, is returned to duty and is in the i:)erformaiice of faithful service when his term is completed. A discharge in the usual form then given to him is a formal final judgment I)assed by the government ui)on his entire military record and an authoritative declaration by it that he leaves the mili- tary service in a status of honor. Thus honorably discharged he cannot, by reason of his having formerly deserted, be deprived of any rights to i^ay, allowances or bounty usually incident ui)on honorable discharge.^ XXVI, 484. ^ This opinion is quoted and adopted by the U. S. Sujjreme Court in United States v. Kelly, 15 Wallace, 36. See note to Bounty § 5. 234 DISCHARGE. 7. Where a soldier undergoing a sentence of confinement — Ms term of enlistment not being yet expired — is summarily discharged from the service by one of the officials designated in the Fourth Article of war, such a discharge^ being an hon- orable one in law, i. e. not a i)unishment, (see § 1, supra,) operates as a remission of the unexpired portion of the con- finement. XXXI, 614; XXXII, 180. [See IMPRISONMENT §14.] 8. A soldier honorably discharged in the usual form at the end of his term, is no longer subject to military discipline or control.^ Having become a civilian, he is entitled to be restored at once, or as soon as the exigencies of the service will permit, to the rights and status of a citizen. XXIX, 599. [See Fourth Article § 1.] III. Dishonorable Discharge. 9. Courts martial, in imposing a considerable term of con- finement, now almost invariably add the penalty of dishonor- able discharge. In general, this penalty is directed by the court to ha first executed, — as by the form, ' to be dishonor- ably discharged and then confined,' &c. Where there is no express indication in the sentence as to which i)unishment is to be first enforced, the one named first in order is regarded as that intended to be first executed, and is so executed in practice. XLI, 570. 10. Where a court martial, in imposing dishonorable dis- charge in connection with confinement, directs that the dis- charge be first executed ; or where it is reasonably to be in- ferred from the terms of the sentence that it was the intention of the court that the punishments should be executed in this order; the reviewing officer, in approving the sentence, is not empowered to command that the execution of the discharge ^ Much less is he subject to he 2>u7iished. In the late case of White V. McDonough, 3 Sawyer, 311, where a soldier, whose term of enlistment exi)ired while he was on a transport with a detachment, was formally discharged, and subse- quently, on account of an alleged breach of discipline, was ordered by his commanding officer to work in the coal hole, — the court say : " The conduct of the officer in command was arbitrary and unjustifiable either by law or military necessity." DISCHARGE. 235 he2^ostponed to the end of the term of confinement.^ XXXII, 300, 529; XXXIV, 32, 580; XXXVII, 22. On the other hand, if the sentence clearly imposes the dishonorable dis- charge of the soldier at the end oj the term of confinement, the reviewing ofiicer is not authorized to direct that he be discharged forthwith. XXVII, 450. 11. Where a court martial sentenced a soldier, in connec- tion with confinement, to be dishonorably discharged at such date as might be fixed by the reviewing ofiicer, advised that such a sentence was exce^jtional and irregular as devolving upon the reviewing officer a duty pertaining to the court, and that the court would properly be reassembled for the revisi on of the same.2 XXXIII, 401. 12. A sentence — '' to be imprisoned for fifteen years and then dishonorably discharged," held^ (in view of the fact that enlistments in our army are for five years only,) to be — so far as related to the discharge — irregular and unauthorized. A sentence of court martial cannot operate to retain a soldier in the United States' service beyond his legal term of enlist- ment. And advised that the court be reassembled for the revision of this sentence, and that it be suggested to it to impose the discharge in advance of the imprisonment, in accordance with the aj)i)roved precedents. XXXVI, 53G. 13. A sentence of dishonorable discharge, (even when ignominious, as when accomx^anied by drumming out,) entails 'per se no disability to re-enlist in the army ; nor does it dis- qualify for civil employment under the United States. VIII, 91 ; XXVJII, 250 ; XXXI, 296 ; XXXIV, (j2'd. 14. Vv^here a soldier has been legally sentenced to be dis- honorably discharged, and such sentence has been duly executed^ it is beyond the power of the Executive, whatever the merits of the case, to substitute an honorable in lieu of the dishonorable discharge. The latter having gone into effect cannot be undone ; moreover the soldier, having been thereby whollj^ detached from the military service and made a civilian, cannot again be discharged from the service until ^ See an opinion of the Judge Advocate General on this subject published and approved bv the Secretary of War in G. b. 71, War Dept. 1875. 2 See opinion to this effect, published as approved bv the Secretary of War in G. O. 90, War Dept., 1872. 236 DISMISSAL, I — BY SENTENCE. lie lias been again enlisted into it. XXXYII, 390. 510 j XXXVIII, 236, 605 ,• XLI, 405. As to Discharge, in general, as affecting the jurisdiction of courts-martial, see Court Martial, II § 5 ; also Forty EIGHTH Article § 6 ; Sixtieth Article § 16. And see, further, as to the authority, effect, &c., of Discharge — Forty eighth Article § 4, 5 ; Fiftieth Article ; Desertion § 4 5 Enlistment § 2—6 ; Habeas Corpus § 3, 6. DISMISSAL, I— BY SENTENCE. 1. Courts martial are empowered {and required) to adjudge dismissal upon ofi&cers of the army by the 3d, 6th, 8th, 13th, 14th, 15th, 18th, 26th, 27th, 28th, 38th, 50th, 54th, 59th, 61st and 65th Articles of War, upon conviction of the specific offences therein described. In Arts. 8 and 50 the punish- ment of dismissal is referred to as 'cashiering^ — a term which has almost passed out of use in our service, and when em- ployed means no more than dismissal. XXXIV, 563. [See Cashiering.] 2. In confirming a sentence of dismissal, the reviewing authority may commute it, (see One Hundred and Twelfth Article § 5,) to a lighter punishment appropriate to an offi- cer. But he cannot commute it to honorable discharge, that not being a punishment. XXXI, 583. 3. A legal sentence of dismissal of an officer when finally confirmed, by the competent authority, (according to the 106th or lODth Article of War,) takes effect upon the officer on the day on which the confirmation is officially communicated to him, either by the jiromulgation of the order of confirmation at his station or other form of official notice. [See Order, I § 2.] Thus the date of the actual confirmation is not neces- sarily — is not i)robably in the majority of cases — the date on which the dismissal goes into effect. The declaration is indeed sometimes added in the order of confirmation, that the partj' 'ceases thereuiion to be an officer of the army;' but this dec- laration is immaterial and surplusage. It not unlrequently happens — especially in time of war, and particularly when the officer has, since his trial, been taken prisoner by the enemy — that a considerable i)eriod may elapse before the officer is officially informed of the confirmation of the sentence DISMISSAL, I— BY SENTENCE. 237 and tlius becomes, in law and fact, dismissed from the service. XXXVI, 110; XXXYIII, 341. 4. A sentence of dismissal cannot legally be confirmed so as to take effect as of a date prior to that of the formal confirma- tion. Thus where such a sentence was adjudged by a court martial on April 27, 18G3, but owing to the exigencies of the service was not acted upon till after several months by the reviewing authority, who then formally confirmed the sentence, adding in the order that the officer — "ceases to be an officer of the army from April 27, 18G3," Jield that this part of the order was unauthorized and inoperative. XXX, 4S0. 5. When a legal sentence of dismissal has been duly con- firmed and executed, the power over the case of the reviewing officer, (whether the President, or the commanding general in time of war — see Eeviewing Officer,) is exhausted. The reviewing authority, as such, is. functus officio. He cannot recall, revoke, rescind or modify the official act of confirma- tion, or the order which is the evidence of it. So — the sen- tence being executed and the dismissal being an accomplished fact — the case is beyond the reach of the imrdoning ])oicer: by no exercise of that power can the sentence be removed or remitted, or the office lost be restored.^ [See Pardon § 4.] Thus, so far as the executive power is concerned, the dis- missal is final and irreversible. And the law has provided no court of appeal or other revisory authority, (see Appeal,) by which the same may be reopened or set aside : the only remedy is by a new appointment.^ [See § 6, infra.] Of course if the sentence was not legal — if the court, for ex- ami)le, was illegally constituted or comj^osed, or was without jurisdiction, or its proceedings were invalidated as by some such fatal defect as that less than five members took part in the judgment — there has of course been no dismissal in law, and this fact may at any time be declared in Orders. And so, where the sentence, though legal, has not been approved or confirmed by the competent authority. But where the sentence is strictly legal and has been legally confirmed and executed, the mere fact either that the proceedings of the court were irregular, or that the rights of the accused were ^ Ex parte Garland^ 4 Wallace, 381 ; XII Opins. of Attys. Gen. 548. ^'See IV Opins. of Attys. Gen. 274-6, 30G; VI Id. 369, 514 j VII Id. 995 XII Id. 5485 XIV Id. 449. 238 DISMISSAL, I — BY SENTENCE. prejudiced iu tlie admission or rejection of evidence, or that from this cause or because the members of the court were biased or otherwise, the finding was unjust or the sentence too severe — can add nothing whatever to the power of the Executive or of Congress to nullify or modify the dismissal as such.' XX, 3025 XXVI, 462; XXVIII, 457; XXIX, 555,. 575; XXX, 318, 323, 420; XXXIV, 634; XXXVI, 274^330-' 1, XXXVIII, 243, 492; XXXIX, 238, 242, 248. 6. Upon the legal execution of a sentence of dismissal, the officer is wholly separated from the military service and be- comes as completely a civilian as if he had never been in the army. As his dismissal is irreversible, he can be restored to the service only by a new appointment by the President un- der the Constitution. ^ This is the law independently of ex- press legislation. In July, 1868, however, Congress enacted a statute described in its title as " declaratory of the law" on the subject, which, as now incorporated in Sec. 1228, Eev. Sts., provides that — "Xo officer of the Army who has been or may be dismissed from the service by the sentence of a gen- eral court martial, formally api)roved by the proper reviewing authority, shall ever be restored to the military service except by a re-appointment confirmed by the Senate." Thus, upon princix)le and at law, a new appointment is the only mode by which a dismissed officer can be rehabilitated. He cannot be honorably discharged, (as dismissed officers have uot unfre- quently asked to be,) or placed on the retired list or permitted to resign, in lieu of standing dismissed, because it is oi\\j a com- missioned officer of the army who can be thus privileged, and, being a civilian, he would necessarily, in order to be enabled to be discharged, or to resign, &c., from the army, lisive first to he returned to it hy an appointment. XXIX, 108 ; XXX, 318, 323; XXXI, 504; XXXVI, 216, 330; XXXVII, 421, 492; XXXIX, 248; XLI, 675. 7. A sentence of dismissal does not attach any legal dlsaMlity to the person dismissed. He is not — as is indeed indicated by Sec. 1228, Eev. Sts., above cited — disqualified to be newly ap- pointed to the army, (XXI, 215; XXXVI, 330;) nor is he dis- ' See IV Opins. of Attys. Gen. 275. 2 See IV Opins. of Attys. Gen. 318; XIV Id. 449, 502; also Eeport '^{3^6 of Judiciarv Committee of Senate, of March 3, 1879, 45th Cong., 3d Ses\ DISMISSAL, II — BY THE ORDER OF THE PRESIDENT. 239 qualified to be enlisted as a soldier, (YII, 253,) or to hold civil office under the United States. VIII, 601 5 XXII, 517; XXXI, 486. 8. In view of the positive provision of the Act of July 16, 1862, now incorporated in Sec. 1441, liev. Sts., that " no offi- cer of the navy who has been dismissed by the sentence of a court martial * * * shall ever again become an officer of the navy," heldjin the case of an assistant engineer of the navy, thus dismissed, and whose sentence had been approved by the President, that an order assuming to '' reinstate" him, by means of the "revocation" of such api:>roval, would be in con- travention of the statute and beyond the power of the Exe- tive. Y, 481. DISMISSAL, II— BY THE ORDER OF THE PRESIDENT. 1. Dismissal by executive order is quite distinct from dis- missal by sentence. The latter is a punishment: the former is removal from office. ^ The power to dismiss, which, as being an incident to the power to appoint public officers, had been regarded since 1789 as vested in the President by the Consti- tution, ^ was, for the first time in 1866, (by the Act of July 13th of that year, re-enacted in the second clause of the present S9th Article of War and in Sec. 1229, Eev. Sts.,) expressly di- vested by Congress in so far as respects its exercise in time of peace. ^ By the statute law it is now authorized only in time of war. During the late war it was exercised in a great num- ber of cases, sometimes for the i)urpose of summarily ridding the service of unworthy officers, sometimes in the form of a discharge or muster-out of officers, whose services were sim- ^\j no longer required. The distinction between this species of dismissal and dismissal by sentence is illustrated by the 1 See VII Opins. of Attys. Gen. 251. ^ See, as among the principal autliorities on this subject, — Commonwealth v. Bussier, 5 Sergt. & Eawle, 461 ; Ex parte Hennen, 13 Peters, 258, 259 ; United States r. Guthrie, 17, Howard, 307 5 IV Opins. of Attvs. Gen. 1, 609-613; VI Id. 6-Q ; VII Id., 251; VIII Id., 230-232; XII Id., 424-426 ; Sergeant- Const. Law, 373; 2 Story's Corns. § 1537, note; 1 Kent's Coms. 310 ; 2 Marshall's Washington, 162. ^ See late opinion of Attorney General of April 30, 1879, (XVI Opms. — .) 240 DISMISSAL, II — BY THE ORDER OF THE PRESIDENT. fact that the former has, with the sanction of legal authority, been repeatedly ordered in cases where a court martial has previously acquitted the officer of the very offences on account of which the summary action has been resorted to.^ XXIII, 265- XXYI, 5; XXXI, 557 j XXIX, 251; XLII, 470. 2. The Executive, in summarily dismissing an officer, can- not at the same time deprive him of pay due. Xor can the right of an officer to his pay for any period x^rior to a sum- mary dismissal ordered in his case, be divested by a dating back of the order of dismissal. Such an order cannot be made to relate back so as to affect the status or rights of the officer as they existed before the date of the taking effect of the dismissal. YI, 379, 405; X, 1, 4 ; XVII, 670; XXXI, 125; XXXY, 112; XLII, 73, 470. [See § 5 infra.] 3. A summary dismissal ''by order of the Secretary of War," is in law the act of the President.^ Y, 319 , XLI, 611. [See Secretary of War.] 4. A department or army commander can have of course no authority to summarily dismiss or discharge an officer from the military service. XI, 405 ; XYI, 553 ; XLI, 84 ; XLII, 263. But where, in a case of a regular officer, this authority was in fact exercised, and the President, treating his office as vacant, proceeded to fill the vacancy by a new appointment, held that he had made the dismissal his own act and legalized the same.^ XLI, 84. So where, (in 1863,) an officer of volunteers was dismissed by the order of an army commander, which was never ratified in terms by the President, but a successor, appointed to the vacancy by the governor of the State, was accepted and mustered in by the United States; held, (in 1880,) that the dismissal was to be regarded as having been substantially ratified and legalized. XLIY, 82. 5. A summary dismissal of an officer does not properly take effect until the order of dismissal or an official copy of the same is delivered to him, or he is otherwise officially noti- fied of the fact of the dismissal. [See Order § 2.] ' See XII Opins. of Attys. Gen. 427. ' See XII Opins. of Attys. Gen. 421 ; McElrath v. United States, 12 Ct. CI. li. 202 ; also Secretary of War. ^ See opinion of Attorney General of April 1, 1879, (XYI Opins. — ,) noted under One Hundred and Sixth Article. DISMISSAL, IT — BY THE ORDER OF THE PRESIDENT. 241 6. Held that it could not aifect the operation of an order summarily dismissing an officer as '•' second lieutenant/' that, before its being communicated to him by being x)romulgated to the regiment, he had become by i)romotion a first lieutenant. VI, 558. 7. A dismissal of an officer by executive order does not operate to disquaUfy him for reappointment to military office, or for appointment to civil office under the United States. XXXVI, 330. 8. There can be no revocation of a duly executed order of dis- missal, however unmerited or injudicious the original act may be deemed to have been. For distinct as dismissal by order is, in its nature^ from dismissal by sentence, (see § 1 supraj) the effect of the proceeding in divesting the office is the same in each case. An officer dismissed by an order, though his dismissal may have involved no disgrace, is assimilated to an officer dismissed by sentence, (see Dismissal, I § 6,) in so far that he is completely relegated to a civil status, having in law no nearer or other relation to the military ser\ace than has any civilian who has never been in the army. Thus an order assuming to revoke a legal order of dismissal is as unauthor- ized as it is ineffectual. The original dismissal is an act done which cannot be undone, and the order, which is the evidence of it, is therefore incapable of revocation or recall.^ Xor can that be affected indirectly which cannot legally be done directly. An officer dismissed by executive order cannot be relieved by being allowed to resign or be retired, or bj^ being granted an honorable discharge. For, in order to be dis- charged, &c., from the army, he must first be in the army, and there is but one mode by which an officer once legally separated from the army can be put into it, viz : by a new appointment according to the Constitution. ^ XXXI, 501 j ' See IV Opins. of Attys. Gen. 124 5 XII Id. 424-8; XIV Id. 520 ; XV Id. — , (Opinion of February 12, 1878.) A con- trary view expressed by the Court of Claims, in its earUer period, in a series of cases, — see Smith v. United States, 2 Ct. CI. 200 ; Winters v. United States, 3 Id. 130 ; Barnes v. United States, 4 Id. 210; Montgomery v. United States, 5 Id. 93, — was finally' practically abandoned iu McElrath v. United States, 12 Id. 201. ' See VIII Opins. of Attvs. Gen. 235 ; XII Id. 421 ; XIH Id. 5; McElrath v. United States, 12 Ct. CI. 202. 10 D 242 DISMISSAI., Ill— BY ORDER : TRIAL IN CASE OF. XXXY, 392, 46G; XXXYI, 216, 330 5 XXXVII, 451,- XXXYIII, 01, 159; XXXIX, 248, 474; XLI, 153, 611; XLII, 73. [Compare Dismissal, I § 0. But, in connection with the general rule here stated, see Dismissal, III.] DISMISSAL, III— BY OEDER: TRIAL IN CASE OF. [Act of March 3, 1805, c. 79, s. 12 1— now Sec. 1230, Eev. Sts.] 1. Held that the provision on this subject of the Act of 1865 — referring as it does to officers "hereafter dismissed" — was not retroactive in its operation, and did not embrace cases of officers dismissed by order before the date of its passage. XV, 150: XYI, 631; XX, 518. And similarly held as to the provision now incori^orated in Sec. 1230, Rev. Sts. ; the same, though somewhat differently worded from the original statute, being construed as not intended to enlarge the application of the latter.^ XXXYII, 618; XXXYIII, 160. 2. The statute does not indicate within what period after the dismissal the application for a trial should be made. It can only be said that, in preferring it, due diligence should be exercised — that it should be presented within a reasonable time. XXI, 169. Held that a party who, (without any suffi- cient excuse,) delayed for nine years to apply for a trial under the statute might well be regarded as having waived his right thereto.^ It could scarcely have been contemplated by Con- gress that a dismissed officer should be at liberty to defer his api)lication for a trial till the evidence on which he was dis- missed, or a material part of the same, had ceased to exist, and his restoration would thus be made certain. XLII, 446. 3. Though it may be sufficient that the application made under the statute should state simply that the applicant has ^This statute was held by the Attorney General, (XII Opins. 4,) not to be unconstitutional, in that it was not "ob- noxious to the objection that it invades or frustrates the power of the President to dismiss an officer." More serious objections to its constitutionality are believed to be : 1, that it authorizes the subjecting to military trial of a civilian : 2, that in restoring an officer to the army it substitutes the action of a court martial for the appointing power of the President. ^ See, to a similar eftect, the opinion of the Solicitor General of May 29, 1878, (XYI Opins. — .) =^ Compare lY Opins. of Attys. Gen. 170 ; Y Id. 384. 243 been ^'wrongfully " dismissed, the preferable form would be for the applicant to set forth in ichat the alleged wrong con- sisted. XVI 513. 4. Where atrial of a volunteer officer under this statute resulted in an acquittal, and his original dismissal thus became '* void," but meanwhile his regiment had been mustered out of service, Jielcl that he was properly entitled to an honorable discharge as of the date of the muster out of the regiment, with full pay and allowances up to that time. XIT, 659. 5. Whatever might be the effect, under existing law, upon the status of a volunteer officer, acquitted or not dismissed by a court martial upon a trial under this statute, of the fact that the vacancy created hy his original dismissal had been mean- while filled, — held that the effect in a similar case of an officer of the regular army would be to add him to the army as an extra officer in his previous grade. XVI, 1G9; XX, 188. 6. Under the statute of 1865 there were but few trials ; this legislation having been followed in the next year by the pro- vision of the Act of July 13, 1866, (now incorporated in the second clause of Sec. 1229, Eev. Sts., and the new 99th Arti- cle of War,) prohibiting executive dismissals of officers of the army and navy in time of peace. Since the date of this Act there have been no trials under the Act of 1865 : the later statute indeed would appear to have deprived the earlier one of all present application and effect. Thus Jield^ (December, 1879,) that an officer dropped for desertion under the first clause of Sec. 1229, Eev. Sts., was not entitled, ui^on api^lica- tion therefor, to a trial under Sec. 1230 j that the provision of the former section making such an officer ineligible for re-apj)ointment in the army was incomi^atible with his resto- ration by the action of a court martial under the latter sec- tion ; and that the latter section ai^iilied only to officers dis- missed by order of the President, under the general power to remove public officers appointed by him and frequently exer- cised in cases of army officers during the late war, (see Dis- missal, II § 1,) but which, as to its exercise in time of peace^ had been divested by Congress by the Act of July 13, 1866. XLII, 446. 7. Although the Act provides that if the sentence of the court be not one of death or dismissal, the party tried shall be restored to his office, yet lield^ in a case in which the court 244 DISOBEDIENCE OF ORDERS — DISQUALIFICATION. acquitted the accused, that the President possessed the author- ity, vested in reviewing officers in all other cases tried by court martial, of returning the proceedings to the court for revision J (see Ee vision,) and was therefore empowered to re-assemble the court for a reconsideration of the testimony, on the ground that the same did not, in his oi)inion, justify the acquittal. XIX, 191. DISOBEDIENCE OF ORDERS. See twenty FIEST ARTICLE § 5—10. DISaUALIFICATION. Disqualification, or incapacity to hold office under the United States, is a punishment certainly sanctioned by pre- cedent in the military service. It is indeed siDCcifically authorized in two Articles of war, Xos. 6 and 14, (providing for the punishment of false muster and like offences,) but is here apparently intended not as an independent punishment but as a penal consequence incident ui^on conviction and sen- tence of dismissal. As a distinctive punishment, however, it has been imi)osed in many cases,^ and has apparently been ^Instances of sentences, including, (generally with dis- missal,) the punishment of disqualification, are to be found in the following Orders of the War Department (or Hdqrs. of Army,) published before the late war, the instances being none of them cases of conviction of false muster : — Gr. O. of April 2, 1818 ; do. of Sept. 25, 1819 ; do. 71 of 1829; do. 15 of 1860. [The iufrequency of this punishment in the early Orders may x)erhai)s be owing in part to the fact that it was considered that "cashiering" — a sentence often adjudged — involved disqualification. See Cashiering.] Similar in- stances of the same punishment occur in the following Orders issued from the War Department during and since the late war: G. O. 18, 94,159, 184, 242, 249, 332, 389, of 1863; do. 36, 51, 69, of 1864; G. 0. M. O. 175, 251, 277, 369,395, 404, of 1864 ; do. 6, 46, 85, 125, 201, 205, 219, 232, 238, 260, 270, 315, 365, 397, 432, 541, 5G5, 584, 602, 649, of 1865 ; do. 22, 68, 82, 89, 111, 161, 181, of 1866; do. 21, 52, 56, 62, 89, 91, 98, of 1867; do. 2,58, of 1868; do. 44 of 1869; do. 14, 15, of 1870. Instances of this punishment have also been noted in the fol- lowing Orders issued from the military De])aTtinents, Ai'inies, &c.: G. O. 60, 64, 76, SG, 89, 99, 106, of 1863; do. 2, 4, 20, 24, DISQUALIPICATTON. 245 regarded as a particularly suitable penalty in cases of embez- zlement of public funds or other fraud upon the government. In some instances the disqualification, as adjudged, has extended to the holding of public office in general ; in others it has been confined to the holding of military office. Dis- qualification, being a continuing j)unishment, may of course be removed by a remission of the same, by the pardoning power, at any time during the life of the party. But, wliile the disqualification for military office is less objectionable than the more general form, it may well be doubted whether this spe- cies of punishment, inasmuch as it assumes in effect to inhibit the exercise by the Executive of the appointing power, is 28, 30, 32, 51, of 18G4 ; do. 9, 12, of 1865— Armv of the Potomac : do. 18,81, of 1864; do. 11, of 1865— Dept. of the East: do. 81 of 1864— Dept. of Pennsylvania: do. 96 of 1864; do. 23, 27, of 1865- Middle l^epartment : do. 22 otf 1865— Middle Military Division : do. 15 of 1863; do. 30 of 1865 — Dept. of West Vir- ginia : do. 34, 113, 175, of 1864 ; do. 49, 82, of 1865- Dept. of Virginia and jS^orth Carolina: do. 32, 33, of 1864 — Dept. of the Ohio: do. 19 of 1865— Dept. of Kentucky : do. 17, 21, 33, of 1863— Dept. of the Tennessee : do. 3 of 18(33 ; do. 6, 22, of 1864 — Dept. and Armv of the Tennessee : do. 14 of 1865 ; do. 5 of 1866— Dept. of Tennessee : do. 21 of 1863 ; do. 24 of 1864 ; do. 77, 112, of 1865— Dept. of the Missouri: do. 8 of 1866— Dept. of Florida : do. 67 of 1863 ; do. 74. of 1865— Dept. of the Gulf: do. 55 of 1864— Mil. Div. of W. Mississippi: do. 87 of 1867 — Second Mil. Dist. This punishment, however, has, since 1870, been discontinued in the practice of our courts martial, and this discontinuance is to be traced to the ruling of the Attorney General in an opinion addressed to the Sec- retary of the Navy in 1868, (XII Opins. 528,) to the effect that a sentence of a naval court martial by which a contractor for naval supplies was excluded from future dealings for such su^i- plies with the government, was illegal ; sentences of disabilitj^ in general being further held to be " not in accordance with the custom of the service except where expressly authorized by law." This ruling Avas applied to a militarv case in G. d. M. O. 22, (as also in do. 57,) War. Dept., &c., W 1870, and the punishment of disqualification imposed upon an officer dis- approved as unauthorized. But whatever may have been the usage of naval courts martial, the very numerous precedents of cases in which such punishment had been adjudged by mil- itary courts for a great variety of offences, were, it is consid- ered, quite sufficient to have established that this i)enalty was sanctioned by custom in the army. That it is, however, sub- ject, intrinsically, to serious legal objection, is indicated in the text. 246 DISTRICT OF COLUMBIA — DliUNKENNESS. witliin the authority of a court martial. As will be perceived from the note, this punishment has been discontinued in our service, but on another and less tenable ground. XXXI, 24 ; XLI, 158 5 XLII, 036. DISTRICT OF COLUMBIA. See martial LAW ^ 5. MILITARY RESERVATION $ 7. DIVISION. See seventy THIRD ARTICLE $ 1. ONE HUNDRED AND FOURTH ARTICLE $ 6. DEVOLUTION OF COMMAND. DRUNKEHHESS. 1. While drunkenness is no excuse for crime, ^ and one who becomes voluntarily drunk is criminally responsible for all offences committed by him while in this condition, yet the fact of the existence of drunkenness may be proper evidence to determine the question of the species or grade of crime actually committed, especially where the jioint to be decided is whether the accused was actuated by a certain specific in- tent. Thus the fact and measure of the drunkenness of the accused may properly be considered by the court as affecting the question of the existence of an animus furandi in a case of alleged larceny .^ XXIII, 222; XXX, 337. K^oke, in laying down the doctrine, now general, that drunkenness does not extenuate but rather aggravates the oftence actually committed, says : " It is a great offence in itself." Beverly's case, 4 Coke, 123, b. So— '^ The law will not suffer any man to privilege one crime by another." Black- stone, 4 Com. 26. " The vices of men cannot constitute an excuse for their crimes." Story J., in United States ?;. Cor- nell, 2 Mason, 111. As to the offence of drunkenness in gen- eral, at military law — see Thiuty EianTii Article § 9. ^Eex^. Pitman, 2 C.& P. 423; IBish.Cr.L. §'490. So, the fact of drunkenness has been held admissible in evidence in cases of homicide, upon the question of the existence of malice as distinguishing murder from manslaughter; as also upon the question of deliberate intent to kill iu States where the law distinguishes degrees of murder. State v. Johnson, 40 DRUNKENNESS ON DUTY. 247 2. Drunkeoness caused by morpliine or other drug, (see Thirty Eighth Article § 8,) i)rescribed by a medical offi- cer of the army or civil i)hysician, may constitute an excuse for a breach of discipline committed by an officer or soldier, provided it quite clearly api)ears that this was the sole cause of the offence committed, the accused not being chargeable with negligence or fault in the case. XXVIII, 390. 3. At military law, where drunkenness, (the fact of the existence of which may always be x:)ut in evidence,) has en- tered into the commission of a specific offence requiring a peculiar deliberate intent, (such as desertion, mutiny, or diso- bedience of orders,) it will in general be more logical, as well as more just, to charge the offender, not with the specific offence, but with the drunkenness as an aggravated disorder, under Art. 62. XXXY, 325. Where it is shown that the accused became drunk in the comi3any of a military superior, who drank with him, or exerted no authority to prevent his indulging to excess, this fact should avail materially to miti- gate the sentence imposed upon him by the court. In such a case indeed it is the superior who mainly deserves trial and punishment. XXXYI, 446. See third ARTICLE $ 3. THIRTY EIGHTH ARTICLE ^W, 8 , 9. SIXTY FIRST ARTICLE ^ 7, 8. SIXTY SECOND ARTICLE ^ 6. EVIDENCE $ 6. RETIREMENT ^ 5. DRUNKENNESS ON DUTY. See THIRTY EIGHTH ARTICLE. Conn. 136, and 41 Id. 588 ; People v. Eogers, 18 X. York, 9 ; People V. Hammill, 2 Parker, 223 5 People v. Eobinsou, Id. 235 ; State v. McCants, 1 Speers, 384 ; Kelly v. State, 3 Sm. & M. 518 ; Shannahan v. Commonwealth, 8 Bush, 463 ; Swan V. State, 4 Humph. 136 ; Pirtle v. State, 9 Id. 663 ; Haile v. State, 11 Id. 154 ; People v. Belencia, 21 Cal. 544 ; People v. King, 27 Id. 509 ; People v. Williams, 43 Id. 344; 3 Greenl. Ev. §§ 6, 148; 1 Bish. Cr. L. § 492, 493. 248 EMBEZZI.EMENT — ENLISTMENT. E, EMBEZZLEMENT. See sixtieth ARTICLE $ 7-11. SIXTY SECOND ARTICLE § 2. EMINENT DOMAIN. See national CEMETERY § 2. PUBLIC PROPERTY— DISPOSITION OF, &c. $ 8. ENEMY. See forty FIFTH ARTICLE ^ 2. MILITARY COMMISSION, II $ 7, note 2. ENGINEER CORPS. See eighty FIRST ARTICLE $ 1. CIVIL OFFICE ^ 4, 5. IMPROVEMENT OF RIVERS AND HARBORS § 2, 3. PAY AND ALLOWANCES § 23. ENLISTMENT. 1. Our law not defining enlistment^ nor designating what proceeding or proceedings shall or may constitute an enlist- ing, it may be said in general that any act or acts which indicate an undertaking, on the part of a i^erson legally com- petent to do so, to render military service to the United States for the term required by the existing law, and an ac- ceptance of such service on the part of the government, may ordinarily be regarded as legal evidence of a contract of enlistment between the parties, and as equivalent to a formal ENLIST]MENT. 249 written agreement wliere no such agreement lias been liad.^ Tlie Forty- Seventh Article practically makes the receipt of pay by a i^arty as a soldier evidence of an enlistment on his part, estopping him from denying his military capacity when sought to be made amenable as a deserter. So held that the fact that a party, after having been armed and clothed as a soldier, had voluntarily rendered material service as such, although he had received no pay, constituted prima facie evidence that a legal contract of enlistment had been entered into between hiui and the United States. V, G18j VII, 132; XII, 361 ; XIX, 397. But enlistments in our army are now almost invariably evidenced by a formal writing and engage- ment under oath. [See Second Article; also, as illustrat- ing what constitutes, or rather does not constitute, a formal enlistment. Sixty Second Article § 7.] 2. A mere non-compliance with an army regulation, in mak- ing an enlistment, does not j;er se affect the validity of the contract. Thus the fact that the recruiting officer has know- ingly enlisted a married man in derogation of par. 930 of the Regulations, or that a married man has procured himself to be enlisted under a representation that he was unmarried, does not affect the validity of the enlistment. In such a case the President or Secretary of War may, in his discretion, forthwith discharge the soldier under the Fourth Article of War, or may hold him regularly to service for the term for which he has enlisted. ^ XXXII, 72; XXXVIII, 61G; XXXIX, 4G7. 3. Sees. 1116-1118, Rev. Sts., providing that deserters, con- victed felons, insane or intoxicated persons, and certain minors, shall not be enlisted, &c., are regarded as directory only, aud ^ "On a charge of desertion, or other offence agaiust mili- tary discipline, it will be sufficient to i^rove that the accused received the pay, or did the duties of a soldier, without other l)roof of his enlistment or oath." 3 Green 1. Ev. § 483. And see Leoanon v. Heath, 47 X. Hamp. 359 ; Ex parte AndevsoUy 16 Iowa, 599. -In Ex parte Schmeid, 1 Dillon C. G. 587, an api>lication for a discharge from his enlistment, made by a soldier who had enlisted as an unmarried man, and based upon the ground that he had in fact a wife and child at the time and that his enhstment was therefore a nullity, was refused by the court on habeas eorpus. And see the similar ruling in Ferren's Gase, 3 Benedict, 442. 250 ENLISTMENT. not as necessarily making void sncli enlistments but as ren- dering them voidable merely, at the option of the government.^ In cases of such enlistments, excei^t of course where the party, by reason of mental derangement or drunkenness, was with- out the legal capacity to contract, the government may elect to hold the soldier to service, subject to any application for discharge which maybe addressed by himself or his parent, &c., either to the Secretary of War or to a United States court.^ XXXI, 342, 595 ; XLIII, 167. [See Third Article § 1.] A deserter who enlists and afterwards again deserts cannot, on being brought to trial for the second ofience, defend on the ground that his enlistment was void and that he is not therefore amenable to trial. A x>lea or defence to this effect should not be sustained by the court. XXXII, 506. The enlistment in our army of a deserter from the navy is not prohibited by any statute. Where, therefore, such an enlistment had been (unadvisedly) made, lield that — although the proper disposition of the party would probably be to dis- charge him and turn him over to the naval authorities — the contract was certainly valid in law. XLIII, 167. 4. In cases of api>lications for discharge from enlistment on the ground of minority, the Secretary of War is authorized to receive evidence upon and determine the question of actual age, though the party upon enlistment may have sworn or declared in writing that he was of full age; ^ the provision of the Act of Feb. 13, 1802, that the statement as to age in the oath of enlistment shall be conclusive, being no longer in force. XXXVII, 508 ; XXXY III, 294. [See Second Article § 2.] ^ See United States v. Wyngall, 5 Hill, 16 ; United States v. Cottingham, 1 Eob. 631 ; Commonwealth v. Baker, 5 Binney, 427 ; In matter of Graham, 8 Jones' Law, 416 ; Cox v. Gee, Winst. L. & E. 131. ^ Under the existing law the authority to dis(;harge soldiers on account of minority, «&c. is not reserved to the Secretary of War alone, but the United States courts are empowered to inquire into the validity of enlistments on habeas corpus^ and thereupon to discharge enlisted persons in i:)roper cases. Ex parte Schmeid, I Dillon, 587. In re McDonald, Lowell, 106 ; McOouologue's case, 107 Mass. 154. This power can not legally be exercised by a State court. Tarble's case, 13 Wal- lace, 397. See Habeas Corpus § 3, note. ^ See XIV Opius. of Attys. Gen. 210 ; Seavey v. Seymour, 3 Clifford, 440, 447. ENLISTMENT. 251 5. A minor cannot assume to discharge himself on the ground that his enlistment was illegal : he would attemi)t it at the risk of being treated as a deserter. XXXI, 595. 6. Where a soldier, otherwise subject to be discharged on account of minority, is held in arrest prior to trial, or under sentence, as a deserter, an application for his discharge by a I)arent entitled to claim his services, (whether addressed to the Secretary of War or to a U. S» Court,) will not be favora- bly entertained. ^ In such a case the interest of the public in the administration of justice is paramount to the right of the parent, and requires that the party shall abide the legal con- sequences of his military offence before the question of the right of discharge bepassed upon. XXXVII, 549 j XXXVIII, 651 ; XXXIX, 572, 602. And similarly held in a case of a soldier who, at the time of the ai)plication for his discharge on account of minoritj", was under sentence on con\dction of embezzlement. XXXIX, 183. 7. The Act of March 3, 1869, c. 124, s. 4, (incorporated in Sec. 1119, Eev. Sts.,) provides that: "AU enlistments in the army shall be for the term of five years." In a case of an enlistment for three years made after the date of the Act ; lield^ (the objection here not being merely personal to the party, but going to the very substance of the contract,) that such enlist Qient was invalid,^ and that the party should be discharged, — to be re-enlisted, if he desired, for the legal term. XXIX, 432. 8. There is no law or regulation affecting the validity of an enlistment made on a Sunday.^ XXXIII, 562. 9. While a contract of enlistment may at any time be ter- minated by the Secretary of War, by a summary discharge of the soldier, under the authority of the Fourth Article, the Executive is not empowered to modify the material condi- tions of such contract while it remains in force.^ Congress, * Commonwealth v. Gamble, 11 Sergt. & Eawle, 93; also McConologue's case, 107 Mass. 170; In matter of Beswick, 25 How. Pr. 149; Ex i^arte Anderson, 16 Iowa, 599. ^ See this ruling, as followed by the reviewing authority in the same case, in the subsequent (j. O. 82, Dept. of Dakota, 1869. And comx^are IV Opins. of Attys. Gen. 537. ^ The same is held in the English case of Wolton v. Gavin, 16 Q. B. 48. ^ In an opinion of Sept. 1, 1877, (XV Opins. ,) it was held by the Attorney General that the Secretary of War was not 252 ENLISTMENT. however in the exercise of its power ^' to raise and support armies/' and " to make rules for the government and regula- tion of the land forces," is authorized to increase or diminish the compensation of a soldier during his term of enlistment. Thus held that a contract of enlistment was not violated on the part of the United States, by the reduction by Act of Congress, i^ending his enlistment, of the pay of a soldier from sixteen to thirteen dollars per month.^ XXXIV, 442. 10. Meld^ in view of the ruling of the courts on the sub- ject,^ that certain volunteer soldiers enlisted in 1862, " for three years or during the war," could not legally be retained in the military service for a longer x^eriod than three years, though the war should not be terminated at the end of that time. XLII, 524. 11. Under the existing law, (July, 1880,) all enlistments are for military service, and there is no such proceeding recognized as an enlistment in "the General Service" so called, or as a cleric. A i^rovision indeed of the Ai^propriation Act of June 15, 1880, empowers the Secretary of War to detail a certain number of enlisted men for clerical service in the War De- IDartment, but it does not authorize the enlistment of xiersons for such service. Thus, where a party had been enlisted as a soldier in the usual form, but with the understanding, sanc- tioned by the authority of the Secretary of War, that he was empowered to suspend the contract of enlistment of a soldier, by allowing him to engage in a certain civil occupation for a time and then resume his military service under his enlist- ment, — or otherwise to vary the terms of the contract, even with the consent of the soldier. ^ In the written form of enlistment, which, though not re- quired by any law, is now (1880) in use in the recruiting serv- ice, the soldier, on enlisting, is made to " agree to accept from the United States such bounty, pay, rations and clothing as are or may be established bylaw." The obligation here indi- cated, however, would exist independently of any specific agreement. ^ In Breitenbach v. Bush, 44 Pa. St. 317-18, the Supreme Court of Pennsylvania held that an enlistment of a soldier '''for three years or during the war^'' meant — " three years from the date of his muster, if the war should last so long, and if it should not, then until it should end. The reference to the duration of the war is a restriction not an extension of the teriu." And see Clark i;. Martin, 3 Grant's Cases, 393: Id., 5 Philad. 251. ESCAPE— EVIDEIS^CE. 253 to be cletailed and employed as a clerk under said Act, — held that, in strict law, he might be employed upon any other duty of a military character. But at the same time advised that good faith to him would, under the circumstances, properly require that, in case it were determined not to be for the public interest to employ him for clerical service, he should be allowed the option of being discharged from the army. XLIII, 376. See fiftieth ARTICLE. STOPPAGE $ 3. ESCAPE. See sixty SECOND ARTICLE $ 6. SIXTY sixth article. COURT MARTIAL, I ^ 22. defence § 1. DESERTION § 4. IMPRISONMENT $ 12, 13. MANSLAUGHTER § 4. EVIDENCE. 1. Courts-martial should in general of course follow — so far as apposite to military cases — the rules of evidence observed by the civil courts, and especially the courts of the United States, in criminal cases.^ They are not bound, however, by any statute in this i)articular, and it is thus open to them, in the interests of justice, to apply these rules with more indul- gence than the civil courts ; — to allow for exami)le, more lat- itude in the introduction of testimony and in the examina- tion and cross-examination of witnesses than is commonly permitted by the latter tribunals. In such particulars, as persons on trial by courts-martial are ordinarily not versed in legal science or practice, a liberal course should in general be pursued, and an over- technicality be avoided.^ XXXI, 273 j XLIl, 74. ^See 3 Greeul. Ev. §476; Lebanon v. Heath, 47 X. Hamp. 359 ; People i\ Van Allen, 5d X. York, 39 ; II Opins. of Attvs. Gen. 343 ; Grant v. Gould, 2 II. Black. 87 ; 1 McArthur 47 ; Harcourt, 70; DeHart, 334; O'Brien, 109; G. O. 51, Middle Dept., 1805; G. C. M. O. 60, Dept. of Texas, 1879; do. 3, 52, De])t. of the East, 1880. ^ Compare the views expressed in G. C. M. 0. 32, War Dept., 1872; do.23,Dept. of Texas, 1873; do. 00, Dept. of California, 1873. 254 EVIDENCE. 2. The rules of evidence sliould be applied by military courts irrespective of the rank of the person to be affected. [Compare Defence § 4.] Thus a witness for the prosecution, whatever be his rank or office, may always be asked, on cross- examination, whether he has not expressed animosity toward the accused, as well as whether he has not on a previous oc- casion made a statement contradictory to or materially differ- ent from that embraced in his testimony. Such questions are admissible by the established law of evidence, and imply no disrespect to the witness, nor can the witness properly decline to answer them on the ground that it is disrespectful to him thus to attempt to discredit him.^ XXXII, 642; XLI, 33. 3. The weight of evidence does not depend upon the iium- her of the witnesses. A single witness, whose statements, manner, and appearance on the stand, (see Finding § 14,) are such as to commend him to credit and confidence, will some- times properly outweigh several less acceptable and satisfac- tory witnesses.- But a court martial cannot properly exclude from consideration the testimony of a witness because it is diffuse and inconclusive, (peculiarities which may result from embarrassment or infelicity of expression,) provided it be pertinent to the issue. XXXY, 55. 4. Evidence of the good character, record, and services of the accused as an officer or soldier, is admissible in all mili- tary cases without distinction — in cases where the sentence is mandatory as well as those where it is discretionary, upon conviction. For, where such evidence cannot avail to affect the measure of punishment, it may yet form the basis of a recommendation by the members of the court, or induce favorable action by the reviewing officer whose approval is necessary to the execution of the sentence. XIX, 35 j XXXYI, 446, 471. Where such evidence is introduced, the prosecution may offer counter-testimony, but it is an estab- lished rule of evidence that the prosecution cannot attack the ^ See opinion of the Judge Advocate General, as adopted by the President, in G. C. M. O. GG, Hdqrs. of Army, 1879 ; and compare remarks of reviewing officers, in G. 0. 11, Dept. of California, 1865; G. C. M. O. 31, Dept. of Dakota, 1869; do. 8, Fourth Mil. Dist., 1867. ^ Compare Rudolph v. Lane, 57Ind. 115 : McCrum v. Corby, 15 Kans. 117. EYIBENCE. 255 character of the accused till the latter has introduced evi- dence to sustain it, and has thus put it in issue. XXYIII, 593. 5. In commencing the examination of a witness, it is a lead- ing of the witness, and objectionable, to read to him the charge and specification or sj)ecifications, since he is thus instructed as to the particulars in regard to which he is to testify and which he is expected to substantiate.^ So to read or state to him in substance the charge, and ask him ' what he knows about it,' or in terms to that effect, is loose and objectionable as encouraging irrelevant and hearsay testimony. The wit- ness should simi^ly be asked to state what was said and done on the occasion, &c. A witness should properly also be ex- amined on specific interrogatories, and not be called upon to make a general statement in answer to a single general ques- tion.2 XXXVII, 87. 6. Upon a trial where the offence is drunkenness or drunken conduct charged under Article G2, or drunkenness on duty charged under Article 38, it is not essential to confine the testimony to a description of the conduct and demeanor of the accused, but it is admissible to ask a witness directly if the accused " was drunk," or for a witness to state that the accused "was drunk," on the occasion or under the circum- stances charged. Such a statement is not viewed by the authorities as of the class of exi)ressions of opinion which are properly ruled out on objection unless given by experts, but as a mere statement of a matter of ohservatlon^ palpable to per- sons in general, and so proper to be given by any witness as a fact in his knowledge.^ XXII, 635 ; XXIV, 79. 7. Except by the consent of the opposite party, the testi- mony^ contained in the record of a previous trial of the same or a similar case cannot properly be received in evidence on atrial by court martial; nor can the record of a board of investigation ordered in the same case be — otherwise — so admitted. In all cases, (other than that provided for by the 1 Compare G. O. 12, Dept. of the Missouri, 1862; do. 36 Id. 1863; do. 29, Dept. of California, 1865; do. 67 Dept. of the South, 1874. 2 See G. C. M. O. 14, 24, Dept. of Dakota, 1877. ^People V. Eastwood, 14 X. York, 562; Stacy v. Portland Pub. Co., (SS Maine, 279; Svdleman i\ Beckwith!^43 Conn. 12; State V. Huxford, 47 Iowa,'l6; G. O. 42, Dept. of the Platte, 1871. 256 EVIDENCE. 121st Article of War,) testimony given upon a previous hear- ing, if desired to be introduced in evidence upon a trial, must, (unless it be otherwise si^ecially stipulated between the parties,) be offered de novo and as original matter. XIX, 41 5 XXVII, 318. [See Seventeenth Article § 2, note.j 8. Affidavits, taken ex parte,) and not as depositions under Art. 91, are in no case admissible as evidence on a trial by court-martial, if objected to.^ VII, 113. 9. The muster rolls on file in the War Department are offi- cial records, and, as .^uch, copies of the same, duly certified^ are presumptive evidence, in the absence of counter testi- mony, that the facts stated therein as to the enlistment, pay, &c., of soldiers, are true^, — subject of course to be rebutted by evidence that they are mistaken or incorrect. Ill, 423. So though such rolls may, per .s-e, be ])rima facie evidence that the soldier was duly enlisted, or mustered into the ser\dce, and is therefore duly held as a soldier, they may be rebutted in this resi)ect by proof of fraud or illegality in the enlistment or muster, (on the part of the representative of the United States or otherwise,) properly invalidating the proceeding and entitling the soldier to a discharge. VIII, 488. [But that the entries in such rolls are not proof of the commission of an offence,, as desertion for example, see Deser- tion § 3.] 10. General Orders issued from the War Department or Headquarters of the Army may ordinarily be proved by printed official copies in the usual form, without resorting to 1 See G. C. M. 0. 10, Hdqrs. ot Army, 1879 ; G. O. 21, Dept. of the Missouri, 18G3 ; do. 17, Dept. of Arkansas, 18G6 ; do. 19 Third Mil. Dist. 18(>7 ; do. 49, Dept. of Dakota, 1871. ^ But note in this connection the ruling of the Supreme Court of Massachusetts in the late case of Hanson v. S. Scit- uate, 115 Mass. 33G, that an official certificate from the Adju- tant General's Office to the effect that certain lacts appeared of record in that office, but Avhicli did not purport to be a transcript from the record itself, and was therefore si){i])ly a personal statement, was not competent evidence of such facts. It has been held by the U. S. Suf^reme Court in a recent case — Evanston v. Gunn, 9 Otto, GOO — tluit the record made by a member of the U. S. Signal Corps, of the state of the weather and the direction and velocity of the wind on a certain day, was competent evidence of the facts reported, as being in the nature of an ofiicial lecord kept by a public officer in the discharge of a public duty. EVIDENCE. 257 the originals or to formally authenticated written copies. The court will in general x>roperly take judicial notice of the printed order as genuine and correct. A court martial, how- ever, should not, in general, accei)t in evidence, if objected to, a printed or written Special Order, (which has not been made public to the army,) without some proof of its genuine- ness and official character.^ XV, 21G. 11. In view of the embarrassment which must generally attend the proof, before a court-martial, of the sending or receipt of telegraphic messages by means of a resort, b}^ suh- pcena duces tecum, to the originals in possession of the Tele- graph Company,^ advised that the written or j^rinted copy, furnished by the Company and received by the person to whom it is addressed, should in general be admitted in evi- dence by a court martial in the absence of circumstances casting a reasonable doubt upon its genuineness or correctness. But where it is necessary to prove that a telegram which was not received, or the receipt of which is denied and not proven, was actually duly sent, the operator or proper official of the Comi)any, or other person cognizant of the fact of sending, should be summoned as a witness. Y, 458 j XIV, 259. 12. The fact that a party is a public enemy of the United States or has engaged in giving aid to the enemy, does not aft'ect the competency of his testimony as a witness before a court-martial. Where testifying, however, in time of war, either in favor of a person in the enemy's service or an ally of or sympathizer with the enemy, or against a federal officer or soldier, his statements, (like those of an accomphce^) are ordinarily to be received with caution unless corroborated. IX, 164, 173 5 X, 330; XIII, 499 ; XIV, 045; XX, 86; XXI, 54. The fact that a party is under a political disability is not one which goes to his competency if offered as a witness. XI, 560. So, the fact that a witness has been convicted of ^ See a similar ruling in G. 0. 121, Second IVIilitary District, 1867. ^ The subject of the extent of the authority of the courts to compel telegraph companies to i)roduce original private telegrams for use in evidence is most fully treated in an Essay by Henry Hitchcock, Esq., on the " Inviolability of Tele- grams," published in the Southern Law Keview for Octobeij 1879. 17 D 258 EYIDENCE. desertion may impair Ms credibility, but cannot affect his competency. XX, 306. 13. A confession is competent evidence when free and vol- untary : otherwise where made through the influence of hope or fear.^ So where an officer admitted to a superior in writing, the commission of a military offence and promised not to repeat the same, under the well-founded hope and belief that a charge which had been preferred against him therefor would be withdrawn, held that, in case he were actually brought to trial upon such charge, the admission thus made would not properly be received in evidence, against his objection. XLII, ^00. Confessions made by x^rivate soldiers to officers or non commissioned officers, though not shown to have been made under the influence of i)romise or threat, should yet, in view of the military relations of the parties, be received with caution.^ XX, 26. Mere silence on the part of the accused, when questioned as to his supposed offence, is not to be treated as a confession.^ XII, 44. 14. The testimony of an accused party is competent only when presented as authorized by the Act of Mch. 16, 1878, c. 37, viz. when the party himself requests to be admitted to tes- tify. But such testimony is not excepted from the ordinary rules governing the admissibility of evidence, nor from the application of the usual tests of cross examination, rebuttal, &c.* XXXIX, 506. [See Witness § 2, 3.J 15. It is in general competent, on trials by court martial, for the accused to put in evidence any facts going to extenu- ate the offence and reduce the punishment : as the fact that he has been held in arrest or confinement an unusual period before trial j the fact that he has already been subjected to punishment or special discipline on account of his offence ) ^United States v. Pumphreys, 1 Granch 0. C. 74; United States V. Hunter, Id. 317 ; United States v. Charles, 2 Id. 76 ; United States v. Pocklington, Id. 293 ; United States v. Xott, 1 McLean 499 ; United States v. Cooper, 3 Qu. L. J. 42. ^See G. C. M. O. 3, War. Dept. 1876; G. O. 54, Dept. of Dakota, 1867. And compare Cady v. State, 44 Miss. 332. ^ See Cami^bell v. State, 55 Ala. 80. ' See G. C. M. O. 8, 16, Dept. of the Platte, 1879 ; do. 6, Id. 1880; do. 34, Dept. of Texas, 1879. And compare Wheel- den t". Wilson, 44 Maine, 11; Marx v. People, C)S Barb. 618; Bralich v. People, 65 Id. 48 ; People v. McGungill, 41 Cal. 429; Clark v. State, 50 Ind. 514. EXTRADITION. 259 the fact that his act was in a measure sanctioned by the act or practice of superior authority, &c. XXYIII, 104 ; XXIX, 199. [See Sixtieth Article § 12; Order, I § 6.] See ACCOMPLICE. COURT MARTIAL, I $ 9, 10. DRUNKENNESS. OFFICIAL PAPERS. PERJURY ^ 2. PLEA § 1-6. REVISION $ 5. STATEMENT. EXTRADITION. By Art. II of the extradition treaty with Mexico of Dec. 11, 1861, it is stipulated that : — " In the case of crimes com- mitted in the frontier States or Territories of the two con- tracting parties, requisitions may be made through their respective diplomatic agents, or through the chief civil authority of said States or Territories, or through such chief civil or judicial authority of the districts or counties border- ing on the frontier as may for this purpose be duly author- ized by the said chief civil authority of the said frontier States or Territories, or when,,f^om any cause, the civil authority of such State or Territory shall be suspended, through the chief military officer in command of such State or Territory." So where a United States soldier charged with having committed a crime against the laws of Mexico, was held in military cus- tody within the State of Texas, advised, (July, 1876,) that as a requisition by the Mexican government directly upon the military commander in Texas would not be authorized, such commander would not be justified in taking action upon an application for such surrender, and that any application made through him would properly be transmitted to the Secretary of War to be referred to the State Department. XXXYIII, 118. 2. The extradition treaty between the United States and Mexico provides that " when from any cause the civil author- ity" of a frontier State, &c. of either nation, "shall be sus- pended," the requisition shall be made "through the chief militar}^ officer in command of such State," &c. A criminal having escaped into Mexico from Texas at a time when the civil authority of that State was suspended as a result of the 2C0 EXTRA DUTY PAY. late war, a requisition for him was issued not by the officer commanding in the State but by a subordinate of inferior rank. Held that as such action was clearly unauthorized, the Mexican government was justified in refusing to comply with the requisition, and that a new one should accordingly be made by the proper commander. XXIX, 4. EXTRA DUTY PAY. [Act of July 13, 1866, c. 176, s. 7— now Sec. 1287, Eev. Sts.] 1. This statute authorizes the payment to soldiers " working as artificers" of thirty-five cents "j9er day^^'' in addition to their regular pay. The ^^day," in a legal sense, consists of twenty- four hours, and it is not practicable to make two working days out of this period of time, so as to justify a double payment under the act. So lield that a soldier, who did extra duty as an artificer at the West Point Military Academy l)otli night mid day, was not entitled to a double compensation therefor. XXYI, 276. 2. Held, (July, 1876,) that enlisted men of the signal serv- ice, while employed in constructing and working telegraph lines, and in observing and reporting storms and making re- ports for the benefit of agriculture and commerce might prop- erly be classed as "artificers" within the meaning of the Act of 1866, and paid accordingly.^ XXXYIII, 184. 3. Held that enlisted men detailed as '^packers" or '^ chief packers" could scarcely be regarded as entitled to the extra allowance of thirty five cents per day as "artificers," but might legally be paid the allowance of twenty cents per day as "laborers," in addition to their regular pay as soldiers. XXXYI, 530. 4. In view of the interi)retation by successive Attorneys General/ of the term " other constant labor," emjjloyed in the Act of March 2, 1819, (the original of the provision of July ^ Under the subsequent Act, however, of June 20, 1878, reposing in the Secretary of War a special discretion on the subject, the right to the extra-duty pay has been restricted to a certain i:)ortion of this class of soldiers. See G. O. 54, Hdqrs. of Army, 1878. ' II Opins. of Attys. Gen. 700 ; III Id. 116 ; lY Id. 325. And see also X Id. 472. EXTRA PAY. 2G1 13, 1SG6,) as including clerical service, and of the continued practice of the government in accord with such interpretation, held that enlisted men detailed as clerks of courts martial might properly be regarded as entitled, for constant labor as such "of not less than ten days' duration," to the extra duty pay of twenty cents ])er diem. XXXYII, 297 ; XLII, 545. But lieldj in view of the positive prohibition of Sec. 1765, Eev. Sts., that a soldier could not legally be allowed any additional compensation for such service further or other than such laborer's payj and this although at the time of acting as clerk he was on a leave of absence. XLII, 564. See forfeiture, II $ 4. EXTRA PAY. (Fnder the Act of March 3, 1865, c. 81, s. 4.) Under this statute, by which "officers of volunteers" in commission at its date and continuing in service to the end of the war were granted three months' extra pay, held that a certain volunteer officer duly mustered out at the end of the war was entitled to this extra allowance, although, when mustered out, he was under a sentence of forfeiture of pay for three months; this sentence having been evidently in- tended to atfect his ordinary pay and not the gratuity accorded by the Act. XXY, 545. But held that an officer of volunteers mustered out, not by reason of the cessation of hostilities at the end of the war, but for the purpose of enabling him to accept a commission in the regular army, was not entitled to the extra pay.^ XXI, 502. And held that a medical store- keeper, appointed under the Act of May 20, 1862, and mus- tered out at the end of the war, was not entitled to the said extra pay, he having been not an officer of volunteers, but, though his tenure of office was limited to the period of the war, an officer of the regular army. XXXI V, 459. [See Regular Army.] ^ Compare Merrill v. United States, 9 Wallace, 614. 262 FELONY — ^FINDING. F. FELONY. See military OFFENCE. FIELD OFFICER'S COURT. See eightieth ARTICLE. FINDING. 1. The finding of the court should be governed by the evi- dence, considered in connection with the plea. Where no evidence is introduced, the general rule is that the finding should conform to the plea. XXXYII, 409; XXXYIII, 188. 2. The finding on the charge should be supported by the finding on the specification, (or specifications,) and the two findings should be consistent with each other. A finding of guilty on the charge would be quite inconsistent with a find- ing of not guilty, or guilty without attaching criminality, on the specification. So, a finding of guilty upon a well pleaded specification, apposite to the charge, followed by a finding of not guilty either of the ofi'ence charged or some lesser ofl:ence included in it, (see § 8 infra,) would be an incongruous verdict. IV, 275. Xo matter how many specifications there may be, it requires a finding, of guilty or not guilty, on but one speci- fication, (apposite to the charge,) to support a similar finding uj)on the charge. IX, 90. 3. There should be a separate and independent finding upon each charge and specification, and each separate finding should cover the charge or specification as to which it is made ; so that if any charge or specification is deemed by the court to be proved only in part, the finding shall show specifically what is found to be proved and what not. VII, 236 ; XVI, 73. [See § 4 infra.] FINDING. 263 4. It is a peculiarity of the Finding at military law, tliat a court martial, where of opinion that any portion of the alle- gations in a specification is not proved, is authorized to find the accused guilty of a part of a specification only, excepting the remainder; or, in finding him guilty of the whole, (or any part,) to suhstitute correct words or allegations in the i)lace of such as are shown by the evidence to have been inserted through error. And provided the exceptions or substitutions leave the specification still appropriate to the charge and legally sufficient thereunder, the court may then properly find the accused guilty of the charge in the usual manner. XXIII, 188. [As to the proceeding in a case of a finding of a lesser in- cluded ofl'ence, requiring an exception and substitution in the charge as well as in the specification, see § 8 infra.] 5. It is not competent for a court-martial to find an accused not guilty of the specification, and yet guilty of the charge, where there is but one specification. By finding him not guilty of the specification they acquit him of aU that goes to constitute the offence described in the charge. Where the court believe that the accused is guilty of the charge, but not precisely as laid in the specification, they should find him guilty of the latter, but with such exceptions or substitutions as may be necessary to present the facts as i^roved on the trial, and then guilty of the charge. Y, 576. 6. Familiar instances of the exercise of the authority to except and substitute in a finding of guilty occur in cases where, in the specification, the name or rank of the accused, or some other person, is erroneously designated, or there is an errone- ous averment of time Or place, or a mistaken date, or an in- correct statement as to amount, quantity, quality, or other particular, of funds or other i^roperty, &c. XIII, 39S, 102; XIY, 228; XXYI, 435. 7. In finding guilty ui^on a specification, — to except fi'om such finding the word or words which express the gravamen of the act as charged and found, is contradictory and irregu- lar. As — from a finding of guilty on a specification to a charge of fraud under Art. GO, to specially except the word *' fraudulent" or "fraudulently," while at the same time find- ing the accused guilty generally upon the charge. XI, 41, 44, 81. [See Fifty Fifth Aeticle § 2.J 264 FINDINa. 8. The practice of making exceptions and substitutions in the findings is well illustrated by the finding — authorized at military law when called for by the evidence ^ — of a lesser Icin- dred offence included as a constituent element in the specific offence charged.^ Of this form of verdict the most familiar instance is the finding of guilty of absence-without-leave under a charge of desertion. A full acquittal of desertion includes, of course, an absence without leave involved in it j but where the evidence falls short of establishing a desertion but shows an unauthorized absenting of himself by the ac- cused, he may and should, be convicted of absence-without- leave, as his actual offence. In arriving at this conclusion, the findings on the specification and charge should be con- sistent, and the finding on the former should be such as to support the latter. In their finding of guilty ui)on the speci- fication, the court should in terms except from its application such words of the specification as allege or describe desertion exclusively, and substitute words describing the lesser offence; the words " did desert," for example, being excepted, and the words "did absent himself without authority" being substi- tuted. The finding on the charge should regularly be " not guilty, but guilty of absence-without-leave." ^ YII, 357, 616, 634; IX, 24, 26, 46, 49 ; XIII, 655; XXIV, 242. 9. But the authority to find guilty of a minor included offence, or otherwise to make exceptions or substitutions in the finding, cannot justify the conviction of the accused of an offence entirely separate and distinct in its nature from that charged. Thus Jield that it was not a finding of a lesser included offence to find the accused guilty merely of absence- without-leave under a charge of a violation of the 42d Arti- cle of War in abandoning his post before the enemy. XI, 274. And so held of a finding, under a charge of a violation of Art. 39, of not guilty but guilty of a violation of Art. 40. igee XIII Opins. of Attys. Gen. 460. ^ Compare Reynolds v. People, 83 Ills. 479, and note the similar authority given in criminal cases in the United States courts, by Sec. 1035, Eev. Sts. ^ A simple finding, however, of guilty of absence without leave, though an irregular form, would amount in law to an acquittal of the higher offence charged. Compare Morehead V. State, 34 Ohio St. 212 ; and see Desertion § 18. FmDma. 265 XI, 276. So, where a soldier charged with ^^ conduct to the prejudice of good order and mihtary discipline," in conceal- ing the fact that a fellow soldier had appropriated to his own use certain i^ublic property, was found not guilty of the speci- fication as laid, but guilty of " having stolen the property himself," and guilty of the charge, and was accordingly sen- tenced to imprisonment, — held that such a finding was man- ifestly unauthorized. Having been found not guilty of the offence set forth in the specification and which alone he was called upon to answer, he should have been acquitted on both charge and specification : the offence of which he was found guilty was not alleged against him, and not being included in that charged, could not properly form the subject of a finding. The remission of his sentence therefore recommended, XXXIV, 569. 10. It is a further peculiarity of the Finding at military law that, where an accused is charged with " conduct unbe- coming an officer and a gentleman," or with any specific offence made punishable by the Articles of war, and the court is of opinion that while the material allegations in the specification or specifications are substantially made out, they do not fully sustain the charge as laid, but do clearly estab- lish the commission of a neglect ol military duty or a disorder in breach of military discipline, as involved in the acts alleged, the accused may properly be found guilty of the specification, (or specifications,) and not guilty of the charge but guilty of '''•conduct to the prejudice of good order and mili- tary disciplineP [See § 12 infra.] Such a form of finding is now common in our practice, (esi)ecially where the charge is laid under Art. 61,) and its legality is no longer questioned. Y, 265 5 IX, 656 ; XI, 87 ; XXIX, 299. 11. The authority thus to find, however, has not been ex- tended beyond the cases indicated in the last paragraph : the reverse., for examj)le, of this form of finding, has never been sanctioned. A finding of guilty of a certain specific offence, under a charge of another specific offence, or under a charge of ''conduct unbecoming an officer and a gen- tleman" or of "conduct to the prejudice of good order and military discipline," would be wholly irregular and in- valid. Thus a finding of guilty of disobedience of orders, 266 FINDING. (or of a violation of Art. 21,) under a charge of mutiny in violation of Art. 22, or a finding of drunkenness on duty, (or of a violation of Art. 38,) under a charge for a drunken dis- order laid under Art. 62 or 61, would be not only unauthor- ized but now almost unprecedented, and, if such a finding were made, it could scarcely fail to be formally disapproved. And so of a finding of "conduct unbecoming an officer and a gentleman" under a charge of '^ conduct to the prejudice of good order and military discipline." XI, 274 j XYI, 532. 12. The general finding of '' conduct to the prejudice," &c., in the cases indicated in § 10, is sanctioned in order to pre- vent a failure of justice, not for the purpose of relieving the accused of any of his due share of culi>ability. It should not therefore be resorted to where the specific offence charged is substantially made out by the testimony. Thus in a case where the facts set forth in the specification to a charge of "conduct unbecoming an officer and a gentleman," and clearly established by the evidence, fixed unmistakably upon the accused dishonorable behavior comi>romising him officially and socially, — held that a finding by the court that he was guilty only of "conduct to the prejudice of good order and militarj^ discipline" should not be accepted, but that the court should be reconvened for the purpose of inducing, if practicable, a finding in accordance with the facts and with justice. XXX, 495. 13. Where, upon the finding, the vote on a charge or spec- ification is tied^ the accused is, in law, found not guilty thereon ; a majority vote being necessary to any conviction. XXXI, 610 ; XXXII, 126. A statement in the record to the effect that the vote upon a specification, &c., was a tie and that the accused was therefore acquitted, is of course irregu- lar and imi)roper. XXXII, 126. [As to the irregularity and offence involved in stating a finding as unanimous^ see Eighty FouKTH Article § 3.] 14. It is an important part of the judgment of the court, in a case where the evidence is conflicting, to determine the measure of the credibility to be attached to the several wit- nesses. In its finding, therefore, the court may, in connection with the testimony, properly take into consideration the ap- pearance and deportment of the witnesses on the stand, and FINE. 267 their maimer of testifying especially when under cross-exam- ination. ' XXX, 383, 447. See THIRTY EIGHTH ARTICLE $ 7. NINETY SIXTH ARTICLE $ 1. RECORD $ 1, i. SENTENCE AND PUNISHMENT $ 5. VOTE OF THE COURT. FINE. 1. The only fine known to military law is the fine author- ized to be imposed by way of punishment by sentence of court martial. Xo military commander is empowered under any circumstances to impose a fine upon an officer or a soldier. VIII, 444. [See Fifty Fguiith Article § 2, G.] 2. A fine is distinguished from a " stoppage." The former is a punishment and therefore imposable onlj^ by court martial. The latter is a charge on account, being an enforced reimburse- ment, by means of a debit entered against the pay of the party on the rolls, either for an amount due the United States, — as for the value of public property lost, £xtra clothing issued, reward paid for apprehension as a deserter, &c. ; or for an amount due an individual and expressly' authorized by law or regulation to be thus charged, — as the stoppage in favor of the laundress, and that authorized for the *' reparation" of a civi- lian by the 54th Article of War. [See par. 1363, Army Reg- ulations ; Fifty Fourth Article § 2.J Any stoppage in- deed, to be legally executed, must be specifically enjoined by statute or authorized regulation. XXXY, 457. 3. Fines adjudged by courts martial accrue to the United States. A court martial cannot impose a fine for the benefit of an individual, nor can a fine adjudged in general terms be in any part appropriated for the benefit of an individual by executive authority. YII, 52, 643; YIII, 632. [Compare ^ See Eeyiewing Authority § 5, and compare Callanan V. Shaw, 24 Iowa, 441. That a court cannot arbitrarily disbelieve and reject from consideration the statement, duly in evidence, of a witness, not clearly shown to have perj ured himself, is held in the recent case of Evans i?. George, SO Ills. 51. 268 FINE. FoRFEiTUREj II § 5.] A court martial, in sentencing a party to pay a fine, has no autliority to direct the collection of the same by a provost marshal, or by any compulsory process : such a direction added in a sentence should be disregarded as mere surplusage, YIII, 298. 4. An officer on trial apj)lied to have certain witnesses summoned from a distance and a continuance granted to await their appearance. To this the court consented on his making an affidavit setting forth material matter expected to be established by the witnesses. When these ai)peared it was found that they could give no material testimony upon the points indicated in the affidavit. The court, in making up its sentence upon conviction, proposed to impose upon the ac- cused, (in connection with imprisonment,) a fine of two hun- dred dollars as the estimated cost to the government of pro- curing the attendance of the said witnesses. Advised that the facts stated did not constitute a proper basis for the im- position of such fine as a i)unishment for the offence for which the officer was convicted ; that if his conduct in the matter was deemed so culpable as to constitute a military offence, it should be made the subject of a separate charge to be inves- gated on a separate trial. XXIX, 329. 5. Where an officer, sentenced, (in connection with dis- missal,) to the payment of a fine and to imprisonment till the fine was paid, and held for some time in confinement by rea- son of the non-payment of the fine, applied to be released on the ground that he was quite destitute of means and incapa- ble of satisfying the amount of the fine, suggested that, in order to protect the government from fraud, the procedure prescribed by Sec. 1042, Eev. Sts. in cases of " poor convicts,'^ imprisoned under sentences of United States courts, be in substance followed, and that the prisoner be not released ex- cept upon an investigation as to his pecuniary ability by a proper officer, and, if found to be indigent as represented, upon his written statement under oath that he was wholly incapable of paying or procuring the means to pay any part of the fine. XXXIV, 329. See IMPEISONMENT $ 4. FLAG OF TRUCE — FOREIGN SERVICE. 269 FLAG OF TRUCE. The use of flags of truce by tlie enemy during the late war was recognized as a belligerent right. ^ But the admission by flag of truce within the lines of the TJ. S. army in time of war of persons coming from the lines of an enemy, cannot entitle such persons to immunity from subsequent inquiry into their character and business, or from restraint and deten- tion upon reasonable grounds of suspicion appearing against them. Moreover a flag of truce does not operate as a safe- conduct^ allowing the party admitted under it a free passage through the territory or a dispensation from the legal effects of war, but affords him a merely temjiorary protection not to be continued after the immediate mission of the flag has been accomplished. Y, 03; YI, 434; YIII, 612. So held that a person who, during the war, availed himself of a flag of truce to enter our lines for an illegal i)uri)ose, was in no degree protected by the flag from liability to arrest, upon his purpose becoming apparent, or from amenability to trial and jDunishment for any overt act in violation of the laws of war. XIX, 673. FOREIGN SERVICE. In the absence of express authority from Congress, an offi- cer of the army cannot accept remuneration from a foreign l^ower, in return for military or other public service rendered, without a violation of Art. I, Sec. 9, x)ar. 7, of the Constitu- tion.2 ]Sor can such an officer, (in the absence of such authority,) properly be granted a leave of absence for the l)urpose of rendering foreign service, even without comi)ensa- ^ Williams v. Bruffy, 6 Otto, 187. 2 Xote in this connection the opinion of the Attorney Gen- eral of January 20, 1877, (XY Opins. — ,) to the eflect that the Centennial Commissioners appointed by the President under the Act of March 3, 1871, were officers of the United States, holding offices of trusty (though, in the abseuce of salary, not of l^rofit^) and that therefore, in view of the prohibition of xVrt. I, Sec. 9 § 7 of the Constitution, they could not, without the authority of Congress, legally accept presents from a foreign government. 270 FORFEITUBE. tion, since such a proceeding would be contrary to the spirit and intent of the laws relating to the army, which clearly contemplate that the services of its officers shall be rendered to the United States. XXXYII, 448. FORFEITURE, I— BY OPERATION OF LAW. 1. The forfeitures of pay, &c., incurred by deserters under pars. 1357 and 1358, Army Eegulations, (see Desertion § 9,) need not be adjudged in the sentence imposed upon the of- fender.^ Snch forfeitures attach by operation of law inde- pendently of conviction or sentence, and any reference to the same in the sentence by the court must be suriilusage. YII, 207. 2. A forfeiture by operation of law cannot be the subject of remission. XXXII, 390. An amount duly forfeited by desertion under par. 1357 or 1358, Army Eegulations, is, in contemplation of law, i^aid into the Treasury, and cannot be withdrawn except by the authority of Oengress. XXXYIII, 618. See pay AND ALLOWANCES $ 8, 9. FORFEITURE, II— BY SEI^TEHCE. 1. A court martial, in forfeiting pay by sentence, should so fix the amount to be forfeited that the same will clearly and unmistakably appear from the sentence itself, without a reference to any order or other source of information being* necessary. So held that a sentence which required a soldier to forfeit an amount of i)ay sufficient to reimburse the United States for the value of certain property apju^opriated by him, without fixing the value of such i)roperty, was irregular, and might properly be disapj)roved unless corrected by the court on being reassembled for a revision.^ XXYII, 186. 2. Pay cannot be forfeited by imj)lication. If the court intends to forfeit pay, the penalty of forfeiture should be adjudged in express terms in the sentence.^ No o^/ier punish- ment, imposable by court martial — neither a sentence of death, dismissal, suspension, dishonorable discharge, nor imi^risonment — involves j)Gr se a forfeiture or dej)rivation of any part of the pay or allowances due the i^arty at the time ^ See United States v. Landers, 2 Otto, 79. 2 Compare case in G. C. M. O. (j5, Dept. of Dakota, 1880. 3 Compare Elliott v. Eailroad Co., 9 Otto, 573. FORFEITUEE, II — BY SENTENCE. 271 of tlie approval or taking effect of the sentence.^ Y. 409 ; XIII, 276; XVI, 676; XXYIII, 338; XXX, 52; XXXn, 23G. Xor can pay be forfeited by any misconduct of a sol- dier, however grave, (other than desertion or absence without leave,) unless he is brought to trial and expressly sentenced to forfeiture for the same. XXXIX, 248. 3. A sentence forfeiting "i)ay" or '^pay and bounty" does not affect the right of the accused to a i)ecuniary '^ allowance j''^ — as for example, an allowance due him for clothing not drawn. XXI, 546. 4. A forfeiture by sentence, of " pay and allowances," while it does not affect the right of the soldier to receive during his term of enlistment the usual allowance of clothing in kind, (See Clothing Allowance § 2,) forfeits any pecuniary allowance that may be due the soldier on account of cloth- ing not drawn. [But see Clothing Allowance § l.J And this rule applies to a case of a soldier on duty as a "general service" cjerk equally as to any other enlisted man. XLIII, 110. A sentence of forfeiture of "all pay and allowances" in- cludes and forfeits " extra duty pay." XXXIY, 446. 5. Pay forfeited by sentence of court martial can accrue to the United States only. A sentence cannot forfeit, (appro- priate, or " stop,") pay for the reimbursement or benetit of an individual^ civil or military, (post trader included — see Post Tradek § 5,) however justly the same may be due him, either for money borrowed, stolen, or embezzled by the accused, or to satisfy' any other iiecuniary liability of the accused whether in the nature of debt or damages ; nor can a sentence forfeit pay for the support or benefit of the family ^ This principle is well illustrated by the opinion of the Attorney General, (XIII Opius. 103,) concurring with an opinion of the Judge Advocate General, in the case of Major Herod, where it was held that the fact that the accused had been sentenced to death, on conviction of murder, did not affect his right to his pay from the date of his arrest to that of the final action taken on the sentence by the President. And seethe more recent opinion of the Attorney General of November 0, 1876, (XY Opins. — ,) to the effect that the pay of officers and seamen of the navy is not divested by the operation of sentences of imi)risonment or suspension, but only when forfeited in specific and express terms in the sen- tence. 272 of the accused, or for the benefit of a post fund, hospital fund, &c. All forfeitures by sentence, whether or not so expressed to be in terms, are to be understood and treated as forfeitures to the United States, accruing to the general treasury.^ II, 54:; YI, 1775 IX, 9, 240, 257, 275; XIII, 91, 549; XYI, 322; XXYII, 422, 450; XXIX, 535; XXX, 54. 6. Where a sentence imposes a forfeiture of the '' monthly '^ pay, or a part of the "monthly" pay, of a soldier, for a desig- nated number of months, the sum forfeited is the amount in- dicated multiplied by the number of months. Thus where the sentence of a soldier imposed a confinement for eight months with a forfeiture of eight dollars of his monthly pay for the same period, the sum forfeited was not eight but sixty four dollars.^ XXXIY, 173. 7. Where the sentence is confinement for a certain number of months or years, with a forfeiture of pay " for the same period," the execution of the forfeiture properly begins and ends with the term of tlie confinement. XXX, 500. 8. A forfeiture of a soldier's pay, not limited by the sen- tence to the pay of any particular designated month or months or other space of time, but expressed, as such forfeitures usually are, simply as a forfeiture of a certain number, (as three, six, «&c.,) of months' pay or of a certain amount of pay, (as ten, twenty or more, dollars of his pay,) is legally chargeable against the pay due and payable to the soldier at the next i:)ay day after the promulgation of the approval of the sentence, and, if no pay is then due or that due is not sufficient to discharge the forfeiture, against the pay due and ^ Soldiers' pay forfeited by sentence to the United States was, by the Act of March' 3, 1851, (Sec. 4818, Eev. Sts.,) appropriated for the support of the Soldiers Home. This appropriation, as here expressed, is o±^ — "All stoppages or fines adjudged against soldiers by sentence of courts martial, over and above any amount that may be due for the reim- bursement of government, or of individuals." The " individ- uals" here intended were no doubt sutlers and laundresses, or other persons, (including perhaps the class for whom "reparation" is provided by Art. 54,) to whom a lien on sol- diers' i)ay may be given by statute or regulation. It is not necessary to excei)t in exi^ress terms the " dues of the laundress " from a forfeiture of pay in a sentence. Y, 405. ^ See the opinion of the Judge Advocate General published in G. O. 121, War Department, 1874. FORFEITURE, II — BY SENTENCE. 273 payable at successive pay days till the entire forfeiture is satisfied. XXXVII, 563 j XXXVIII, 6G2; XXXIX, 537. The forfeiture, upon the promulgation and notice to the party of the approval of the same, becomes a debt due to the United States, and may legally constitute a charge against the pay then due the party, if any, and be satisfied as far as practi- cable out of such pay when payable, viz. at the pay day next succeeding the promulgation of the approval or of the noting of the approved forfeiture on the muster-for-pay rolls.^ XXXIX, 266. 9. Where a soldier was sentenced to be dishonorably dis- charged and to forfeit all his pay except twenty dollars, and, upon his discharge, it appeared that he was indebted to the United States in a greater amount, held that the excepted sum could not legally be rendered to him.^ XXXVII, 488, 602. 10. Where a soldier was sentenced to a forfeiture of ten dollars per month of his pay for eighteen months, and his term of enlistment expired before the end of that time, Jield that he could not legally be retained in the service beyond such term, for the purpose of the full execution of the for- feiture. XVI, 94, 532. 11. Where a soldier was sentenced to a forfeiture of three months' pay, but his term of enlistment expired in about two months after the approval of the sentence so that one third of the forfeiture remained unexecuted, — heldj on his subse- quently re-enlisting, that this balance could not legally be stopped against his i)ay ; the second enlistment being a new and independent contract, and the party contracting not being subject to a liability attaching to the distinct status occupied by him under a previous contract. XXXVIII, 662. 12. Whether, in a case of a non-commissioned ofiicer having pay due him, and sentenced to reduction and forfeiture of pay, the forfeiture should be satisfied out of his jmj as non- commissioned otficer or out of his pay as private after th^ reduction, will properly dei)end upon the intention of the ^ In the practice, however, of the Pay Department such for- feitures are charged only against pay accruing suhsequetitly to the date of the order promulgating the sentence. See G. O. 53, Hdqrs. of Army, 1878. 2 See the General Order referred to in last note. 18 D 274 FORFEITUREj II — BY SENTENCE. courtj if the same can be gathered from the terms of the sen- tence. Bat where a sergeant to whom a month's pay was overdue, was sentenced ' to he reduced to the ranks, forfeiting three months' pay/ held that this forfeiture, ui)on the approval of the sentence, created a debt to the United States which might legally be satisfied out of the pay of the soldier as a sergeant so far as the same would go, and, as to the balance, out of his pay as a private. XXX, 419. 13. Where an officer was sentenced to be dismissed with forfeiture of pay due, and, subsequently to the approval of the sentence, but before such approval had been promulgated to the army, or the ofiicer had been officially notified of the same, he applied for and received the pay due him, held that inasmuch as the forfeiture had not taken effect at the time of the payment no illegal act was committed by the officer, and that the paymaster who paid him was not properly to be held accountable for the amount paid. X, 609. 14. In a case of a forfeiture, by sentence, of " pay due," (or '' pay due and to become due,") the amount of pay due and payable to the party at the date of the approval of the sentence is, in contemplation of law, returned from the appro- priation for the army to the general treasury, and, being in the treasury, can not, without a violation of Art. I, Sec. 9, § 6, of the Constitution, be withdrawn and restored to the party, except by the authority of Congress. XXIII, 642, 659; XXYIII, 63, 567; XXIX, 139. A forfeiture thus exe- cuted cannot therefore be remitted : a sentence forfeiting pay can be remitted only as to pay not due and payable at the date of the remission. I, 393 ; VIII, 392, 576, 65S ; IX, 196 ; X, 676 ; XXXY, 372. Where a soldier's pay has been for- feited by an executed sentence, no mere amendment of the muster-roll upon which the same has been noted can operate to undo such forfeiture. XXX, 44. After pay forfeited by sen- tence has gone into the Treasury, it cannot add to the authority of the Executive to return it that the sentence was in fact void ; the authority of Congress is still necessary to the reimburse- ment of the officer or soldier. XXXVII, 456. 15. In a case of a soldier sentenced to be dishonorably dis- charged, with a forfeiture of all his pay, it was ordered by the reviewing ofiicer that the forfeiture be so fiir remitted that a sum '^not to exceed twenty dollars" should be rendered to FORFEITURE, n — FUEL ALLOWANCE. 275 him at liis discliarge. Held that sucli a remission Tvas, strictly, inoperative by reason of its indefiniteness, it not being a re- mission of twenty dollars or of any part of that snm, but of some amount not fixed or capable of being fixed by compe- tent authority. But advised,, in the interests of justice and clemency, that the intent of the reviewing officer be carried out by excepting from the forfeiture the sum of twenty dol- lars, provided so much was found due the soldier on the final statement of his account, and, if not, any lesser sum then found so due. XXXIV, 581. 16. In executing a sentence of forfeiture of pay, the pay forfeited, in the absence of specific statutory authority for the purpose, cannot be diverted from the general treasury to any particular fund. Thus where a soldier convicted of the em- bezzlement of certain subsistence stores was sentenced to a forfeiture of pay, held that the Secretary of War would not be authorized to cause the pay forfeited to be added to the appropriation for the Subsistence Department so as to make good to the same the amount lost by the embezzlement- XLIII, 85. 17. Where a soldier, on enlisting, was paid an amount of money as local hoimty, and this money, under an existing regulation of the Provost Marshal GeneraPs Office, adopted with a view to prevent desertion and for the safekeeping of the funds, was taken from the possession of the soldier by the military authorities, and the soldier presently deserted and was subsequently apprehended and brought to trial, — advised that the court was not authorized to forfeit this money by its sentence; the same being iirivate property of the soldier held by the authorities, not as money due him by the United States, but as a special bailment and trust for his personal benefit. XXII, 642. See eighty THIRD ARTICLE $ 3, 4. PAY AND ALLOWANCES $ 27. STOPPAGE $ 1. SUSPENSIONS $ 7, 89. FUEL ALLOWANCE. See pay AND ALLOWANCES $ 12, note, 22-25. 276 GAMBLmG — GENERAL STAFF. a. GAMBLING. Gambling, joer se, does not constitute a military offence. If indulged in, however, to such an extent or in such a man- ner as to give it the character of a disorder " to the prejudice of good order and military discipline" in the sense of Art. 62, or under circumstances so personally discreditable as to bring it within the description of '^ conduct unbecoming an officer and a gentleman," it may of course be taken cogni- zance of by a court martial. The Army Eegulations, (par. 996, ) recognize it as peculiarly objectionable when practised by a disbursing officer.^ XYI, 381, XL, 32. GENERAL ORDERS.^ See evidence § 10. GENERAL STAFF. The General Staff of the army, consisting of the chiefs of the staff corps and inferior officers of the same, constitute the Staff of the Commander-in-chief of the Army — the Pres- 1 See, in G. C. M. O. 18, War Dept. 1871, a case of a dis- bursing officer convicted of gambling, as an offence under Art. 62 ', and note the remarks of the reviewing authority upon an instance of this class in G. O. 2, Dept. of Arizona, 1878. In an early case — in G. O. 104, Hdqrs. of Army, 1833 — it was held that a claim by a disbursing officer, that he had jilayed for too small stakes to endanger the safety of the public funds entrusted to his charge, was not a sufficient excuse for his gambling, — in view of the regulation. ^ Ge'kieral Court Martial Orders promulgating the proceed- ings of trials by naval courts-martial, are now published in series from the Navy Department. The first, (No. 1 of 1879.) was issued under date of February 4th of that year. GOOD CONDUCT— OUILTY. 277 ident.^ As such, these officers are properly under the im- mediate direction of the Secretary of War, who acts for the President in the administration of the military department. XXXYIII, 253 J XL, 17. [See Secretary of War.] See judge ADVOCATE $ 25. EESIDENCE. GOOD CONDUCT IN CONFINEMENT. See imprisonment $ 18, 19. GOVERNOR OF STATE. See ARMY— EJ^IPLOYMENT OF FOR CIVIL PURPOSES $ 1-4. BOND $ 11. REQUISITION. WAK POWER. GUARD DUTY. See thirty NINTH ARTICLE. SENTENCE AND PUNISHMENT $ 9. SENTINEL. GUERILLA. See MILITARY COMMISSION, II $ 3. GUILTY—PLEA OF. See one HUNDRED AND THIRD ARTICLE $ 2. COURT MARTIAL, I $ 9; Id., II $ 7. PLEA vS 1-7. ^ Stocqueler, Military Dictionary, title " General Staff," de- fines this term : — ^' the body of officers entrusted with the general duties of the army in aid of a commander-in-chief." 278 HABEAS CORPUS. H. HABEAS CORPUS. 1. In a proclamation of May 10, 1861, the President author- ized the commander of the U. S. forces on the Florida coast, if he found it necessary, '' to suspend there the writ of habeas corpus^ By G. O. 104, War Department, Aug. 13, 1862, the President suspended the i^rivilege of the writ of habeas corpus in cases of persons liable to draft who should attempt to^de- part to a foreign country, or should absent themselves from the State or county of their residence, in anticipation of a draft to which they would be subject. By a i)roclamation of September 24, 1862, the President declared the i)rivilege of the writ suspended in respect to all persons arrested or im- prisoned '' during the rebellion by any military authority," or under ^' sentence of any court martial or military commis- sion." These x)roclamations and orders were all based upon the theory that under Art. I, Sec. 9, par. 2, of the Consti- tution, or otherwise, the President alone, in the absence of any authority from Congress, was empowered to suspend the privilege of the writ.^ But in the following year, by the Act of Congress of March 3, 1863, c. 81, s. 1, it was i)rovided — "That during the present rebellion the President of the United States, whenever in his judgment the public safety may require it, is authorized to ^The question whether the President was authorized, in his own discretion and independently of the sanction of Con- gress, to exercise this power, was much discussed early in the late war. The fullest argument in favor of the existence of the power in the President, is contained in Mr. Horace Bin- ney's treatise on " The Privilege of the Writ of Habeas Cor- pus under the Constitution." And s^e also, Ux parte Field, 5 Blatch. 63 ; Oi)inion of Atty. Gen. Bates in X Opins. 74. The weight of judicial authority, however, was the other way. See Ux parte Merryman, Taney, 246 ; McCall v. McDowell, 1 Abbott U. S. P. 212 j Griflin v. Wilcox, 27 Ind. 383 j In re Kemp, 16 Wise. 359 j In re Oliver, 17 Id. 681. HABEAS CORPUS. 279 suspend the privilege of the writ of habeas corjyusinajij case throughout the Uuited States or any part thereof;" — Con- gress, by thus asserting the right in itself to authorize the suspension, implying that, in its opinion, the power to sus- pend did not reside in the President.^ In sundry particular cases, referred to the Judge Advocate General by the Secretary of War, of persons detected in holding correspondence with, or giving intelhgence or other- wise lending aid to, the enemy, as also in obstructing enlist- ments in the army, «S:c., the opinion was expressed that the suspension of the writ by the President would be legally jus- tified under this Act. I, 345; II, 174, 456; III, 72. The instances, however, of suspension in individual cases were not numerous ; for, presently, viz. on Sept. 15, 1863, and pur- suant to the Act of March 1863 above cited, the President issued a i)roclaraation suspending the privilege of the writ generally, and '' througliout the United States" in all cases '^ where, by the authority- of the President of the United States, military, naval, and civil officers of the United States, or any of them, hold persons under their command or in their custody, either as prisoners of war, spies, or aiders or abet- tors of the enemy, or officers, soldiers, or seamen enrolled or drafted or mustered or enlisted in, or belonging to, the land or naval forces of the United States, or as deserters there- from, or otherwise amenable to military law, or the rules and articles of war, or the rules or regulations prescribed for the military or naval services by authority of the President of the United States, or for resisting a draft, or for any other offence against the military or naval service." In a case in which, by the operation of this last i)roclamation, the writ was suspended, held that any judge or court, whether of the United States or of a State, would be required to dismiss the writ, on being advised, (in the manner and form indicated in the Act of March 3, 1863, s. 1,) that the party sought to be relieved was ^' detained as a i)risoner under the authority of the President." XY, 157. 2. By a proclamation of Dec. 1, 1865, the President '' re- voked and annulled" the suspension, (by proclamation of Sept. 15, 1863,) of the privilege of the writ in certain States, including New York. Held that such revocation did not ^ See In re Muri)hy, Woolworth, 141. 280 HABEAS CORPUS. operate to authorize the discharge, by a court of this State, of a prisoner detained in military custody under color of the authority of the United States. XXI, 92. 3. But, independently, on the one hand, of any proclama- tion or act of the President suspending the i^rivilege of the writ, or, on the other hand, of any i^roclamation revoking a previous suspension, and on constitutional grounds alone, — held that no court or judge of any State could in any instance be authorized to discharge, on habeas corpus, a person, military or civil, held in military custody by the authority of the United States. XIX, 92 ; XXI, 92, 133. And held, partic- ularly, in regard to soldiers arrested or confined by the mili- tary authorities under a charge of or sentence for desertion, — that their discharge, uj^on any ground, by writ of habeas cor- pus was wholly beyond the jurisdiction of any State tribunal. II, 34, 190, 484 ; III, 104 ; Y, 398. So held, in regard to per- sons arrested by a provost marshal as deserters for not responding to a draft, in time of war. Ill, 457, 578. And further, held, (January 1866,) that no State court could have jurisdiction, on a proceeding for the discharge by writ of habeas corpus of an enlisted soldier, to pass ui^on the question of the legality of the soldier's enlistment, or to discharge him from his contract of enlistment, on the ground of its inva- lidity by reason of minority, non-consent of parent, or other cause ', the authority to discharge from the restraint and obli- gation of the ordinary military status being considered to be governed by the same i)rinciple as that to discharge from an arrest or confinement under a military charge or sentence, or from the custody of a U. S. Marshal under civil process of the United States.^ XXI, 157; XXIX, 140; XXXIII, 271. ^ Opposed to this view was the opinion of Atty. Gen. Stan- bery in Gormley's case, (October, 1867,) XII Opins. of Attys. Gen. 258. But in December 1871, the ruling of the Judge Advocate General in this class of cases was sustained by the United States Sui)reme Court, in Tarble's Case, 13 Wallace, 397, in which the judgment of a State court, which had or- dered the discharge, on habeas corpus, of an enlisted soldier from " the custody of a recruitnig officer," i. e. from the obli- gation of his contract of enlistment, on the ground that he had enlisted when under eighteen years of age and without his father's consent, — was reversed as an unconstitutional assumption of authority. In applying to the case tiic prin- ciple laid down in Ableman v. Booths 21 Howard, 506, the HABEAS CORPUS. 281 4. And held that a State court was uot authorized to dis- cliarge on habeas corpus sl civilian held by the authority of the United States as a convict under sentence of a military com- mission. XXYIII, 50. 5. Where a writ of habeas corpus, issued by a State court or judge, for the relief of a person held in arrest, confinement, or under enlistment, by the military authorities, is served upon a military oiBcer, he is not required to comply with the direction of the writ to produce before the court the body of the person so held. It is sufficient for him merelj' to make Court, by Field, J., observes : — " State judges and State courts, authorized by laws of their States to issue writs of habeas corpus^ have undoubtedly a right to issue the writ in any case where a i^arty is alleged to be illegally confined within their limits, unless it api^ears upon his api)lication that he is confined under the authority, or claim and color of the authority, of the United States, by an officer of that gov- ernment. If such fact ai^pear upon the application the writ should be refused. If it do not appear the judge or court issuing the writ has a right to inquire into the cause of im- prisonment, and ascertain by what authority the person is held within the limits of the State ; and it is the duty of the marshal, or other officer having the custody of the prisoner, to give, by a i)roper return, information in this respect. His return should be sufficient, in its detail of facts, to show dis- tinctly that the imprisonment is under the authority, or claim and color of the authority, of the United States, and to ex- clude the suspicion of imposition or oppression on his part. And the process or orders under which the x)risoner is held, should be i)roduced with the ret^irn and submitted to inspec- tion, in order that the court or judge issuing the writ may see that the prisoner is held by the officer, in good faith, under the authority, or claim and color of the authority, of the United States, and not under the mere pretence of having such authority. * * * The State judge or State court should proceed no further when it appears, from the applica- tion of the party, or the return made, that the prisoner is held by an officer of the United States under Avhat, in truth, purports to be the authority of the United States ; that is, an authority, the validity of which is to be determined by the Constitution and laws of the United States. If a party thus held be illegally imprisoned, it is for the courts or judicial officers of the United States, and those courts or officers alone, to grant him release." This decision put an end to a controversy of many years standing, and swept away a mass of counter rulings by the State courts, the majority of which had sustained the authority of the State judiciary in such cases. 282 HABEAS CORPUS. return showing clearly that such i:)erson is held by the au- thority of the United States as a deserter, or under a contract of enlistment, or otherwise, as the case may be.^ The State court, upon being thus apprised, will proi^erly dismiss the writ. Ill, 104 ; XXI, 157. 6. Where, — prior to the decision of the IT. S. Supreme Court in Tarble's case, — a State court, having issued a writ of haheas corpus in a case of a military prisoner, attempted to enforce a process of contempt against the officer in charge, who, though duly making a return showing that the party was detained by the authoriry of the United States, refused to j^roduce his body in court, — held that such attempt should be resisted by the oliicer, who should be supported in his resistance by such military force as might be necessary. Ill, 502 j XIX, 305 ; XX [, 92. So, wliere a State court, after such a return, still assumed to proceed in the case and to order the discharge of the party, — here a soldier in arrest as a deserter, — lield that the execution of such order should be resisted and prevented by military force. Ill, 104; XXI, 157. 7. Where, — i^rior to the decision in Tarble's Case, — an officer undergoing, in a State penitentiary, a sentence duly imposed by a court-martial, was discharged from his impris- onment b}^ a State court and was at large, advised that he be forthwith rearrested and re-confined. XXX, 56. So, in a case of a soldier discharged from his enlistment, on the ground of minority, by a State court, advised that he be arrested by the military authorities and held to service. XXX, 190. 8. But in a case of a soldier or other person held in military custody, in which a writ of habeas corpus is issued by the United States judiciary, — a co-ordinate branch of the same sovereignty as that by which the party is restrained, — it is the duty of the officer to whom the writ is addressed to make thereto a full return of the facts and to bring into court the body of such party, submitting to the court the whole ques- tion of authority and discharge, and abiding by its decision and order in the case. XIX, 377 ; XXI, 157. See martial LAW $ 5, note. ^ See citation from Tarble's Case in last note. HEAD OF DEPARTMETsT — nOUllS OF SESSION. 283 HEAD OF DEPARTMENT. See claims ^ 1, and note, 4. COUNSEL, I. SECEETARY OF WAR. HOMICIDE. See fifty EIGHTH ARTICLE $ I. SIXTY SECOND ARTICLE $ 1, 2, 3. CHARGE ^ 21. MANSLAUGHTER. MURDER. HONORABLE DISCHARGE. See FOURTH ARTICLE § 2. ALIEN. ARTIFICIAL LIMBS $ 2. BOUNTY ^ 2, 4, 5. DESERTION ^ 11. DISCHARGE $ 1-8. PENSION $ 2. STATUTES— CONSTRUCTION OF $ 7. VOLUNTEERS ^ 2. HOSPITAL. See TWENTIETH ARTICLE $ 2. THIRTY EIGHTH ARTICLE $ 6. FORTY EIGHTH ARTICLE ^ 3. SIXTY FIRST ARTICLE $ 5. MEDICAL OFFICER § 1. ORDER, I M. HOURS OF SESSION OF COURT MARTIAL. See ninety FOURTH ARTICLE. RECORD $ 2. 284 EQIPEISONMENT. IMPRISONMENT. 1. A sentence, which, in imposing confinement, (or impris- onment — the two terms being practically synonymons in sen- tences of courts martial,) fails clearly to indicate how long the same is to continue, is irregular and inoperative. Such a sentence should be disapproved by the reviewing authority unless it can be procured to be corrected by a reassembling of the court for the purpose. XYI, 283. 2. In imposing a sentence of confinement at a military prison, the court should properly add — '^ at the Leavenworth Military Prison," or — ''at such prison as the proper authority may designate," or in words to that efiect. To direct that the place of confinement be designated by an officer inferior to the convening authority is irregular and imi^roper. A sen- tence of confinement is executed by sending the party under a proper guard to the Military Prison, or other place of confine- ment duly designated, and at the same time transmitting to the ofiicer there in command a coi)y of the order approving the sentence and ordering the execution, together with other proper papers required to exhibit the status of the soldier.^ IV, 356; Y, 300; IX, 600. . 3. It is now established by a long series of precedents that a general court martial is authorized to adjudge, by sentence, a term of imprisonment to extend beyond the end of the i)end- ing term of enlistment of the soldier, or beyond his legal period of service. Thus, for example, where the term of the enlist- ment of the accused has still a year to run, the court — the ^ '' Whenever i)risoners are sent to the Leavenworth Military Prison to serve out their sentences, the order promulgating the sentence, and the descriptive list, to which will be ap- pended a statement of conduct, will be forwarded with them." G. O. 64, War Dept., 1875. imprisonjment. 285 gravity of the ofience justifying it — may seutence liiin to an imi^risonmeut for two years or longer : so, it may sentence him to be dishonorably discharged, (thus itself discontinuing his period of service,) and then confined for a designated term. ^ And such sentences may be executed with the same legality as any other sentences of imprisonment. In the former case the soldier will not be entitled to be released from the confinement at the end of his enlistment, nor, in the latter, will he, ui)on the execution of the discharge, become so entitled. In each case, upon the determination of the enlistment or service, the i)arty continues to be held under his sentence not as a soldier but as a civilian U. S. convict. XXXI, 89, 353 ; XXXYIII, 513 j XXXIX, 509. Where the approval of a sentence of confinement in a case of a soldier, in which proceedings had been duly commenced pending his term of enlistment, was not promulgated till after such term had actually expired, but no discharge had been given to the sol- dier before promulgation, lield that it would be legal to sub- ject him to the confinement adjudged by the sentence. XIX, 600. [See Court Martial, II § C] 4. Sentences of imprisonment till a fine, also imposed by the sentence, is paid, are sanctioned by the usage of the service. It is proper, however, in such sentences to affix a limit be- yond which the x^unishment shall not be continued in any event. XIII, 472 ; XX, 16 ; XXXII, 47. Where a sentence adjudges a fine, without also adding, (with a view to enforcing its payment,) a term of confinement, — such a confinement cannot of course legally be imposed by the military com- mander. XIII, 472. So, lield that par. II of G. O. 61, War Department, 1865, to the eflect that, where a court martial, in imposing a fine, has failed to require that the prisoner shall be confined till the fine is paid, "he will not be released without orders from the War Department, except on payment of the fine," — transcended the authority of an executive order ; such a requirement being a punishment , which can be i)rescribed only by sentence of court-martial. XXXIII, 309. 5. The old rule, that the term of a confinement, (of so many months, years, «S:c.,) imi^osed by sentence of court martial, 'As to the or^er of the execution of the punishments, when dishonorable discharge and a term of imjuisonment are im- posed by the same sentence, — see Discharge § 8, 9. 286 IMPRISONIVIENT. commenced on the day on which the prisoner was delivered to the proper officer — as the officer in charge of the prison or commanding the post — to be con»fined according to tlie sen- tence, having been found inconvenient in i^ractice, there was substituted for it, by G. 0. 21, Hdqrs. of the Army, of 1870, the rule that — ''the confinement shall be considered as commenc- ing at the date of the promulgation of the sentence in orders.'' This rule being more favorable to prisoners than the old one, its authority is not known to have ever been questioned. XXI, 257 ; XXX, 150. 6. While the fact that the accused has been confined for an unreasonable i^eriod awaiting trial should proi^erly be taken into consideration by the court in estimating the period of confinement proper to be imposed upon his conviction, (XXVIII, 104,) neither the time during which the accused may have been held in arrest and confinement prior to trial, nor that during which he may liave been so held after trial and before the promulgation of his sentence, can be credited on a term of imprisonment adjudged thereby, in executing the same. If the party has been detained for an unreason- ably long period at either of these stages of the proceedings, he can be indemnified therefor only by a proportionate miti- gation or remission of his punishment. XI, 380 j XXYIII, 340, 482. 7. Where an officer or soldier is sentenced merely to a term of confinement without the addition of " hard labor," — while he may proi^erly be required to perform the ordinary domes- tic or police work directed by the sanitary regulations of the prison, he cannot i^roperly be put to unusual labor of a severe and continuous character. Thus held that, to require a sol- dier sentenced simply to be confined, and confined accord- ingly at Alcatraz Prison, to work daily at blasting and quar- rying rock, was adding to the punishment ^ (see Sentence and Punishment § G,) and therefore unauthorLied. XXXVII, 640 ; XXXIX, 500 5 XLI, 123. To a proper execution, how- ever, of a sentence of confinement, a secure keeping of the person is of course essential. Where, therefore, it is not pos- sible otherwise to jirevent a ])risoner's escape or to prevent violence on his part, he may be ironed without adding to the punishment. But such exceptional restraint cannot legally be imi)osed except where thus necessary. XXXIV, 375. IMPRISON]VIENT. 287 8. It is not adding to tbe punisliment in executing a sen- tence of confinement, to require the prisoner to perform work prescribed for prisoners of liis class bj' the statute law. Thus persons sentenced to imprisonment at the Military Prison at Leavenworth, may legally be employed in the labor or at the trades indicated by Sec. 1351, Eev. Sts. XXXYII, G40. 9. It is not adding to the punishment, and is authorized at military law, for the commander who ordered the original commitment, or his ijroi)er superior, to change the place of confinement of a i^risoner, if such a change is required by the exigencies of the service, provided that no more severe species of confinement than that contemplated in the sentence is enforced after the transfer. XXI, 49; XXXIX, 659; XLI, 123. 10. While the authority upon whom it devolves to execute a sentence of confinement is not authorized to add to the punishment adjudged, he is, on the other hand, not justified in executing the same in so indulgent a manner as to divest the punishment of its intended and legitimate force and effect. Thus where certain prisoners, sentenced to terms of confine- ment on conviction of grave offences, were, w hile in ordinary good health, permitted to be emi>loyed upon honorable duties as clerks, &c., in the offices attached to, (and one of which was outside of,) the i)rison, held that such employment was in derogation of the proi^er requirements of a sentence of imj)risonment and should be ordered to be discontinued. XI, 544. 11. Where a soldier, while undergoing a sentence of con- finement, was, by mistake, released by the post commander before the exi^iration of his legal term, held that the dei)art- ment commander by whom the sentence had been approved was legally authorized to order the soldier to be re-committed for the purpose of completing his punishment. XXYII, 429. 12. Where a soldier, after the imposition by the court in his case of a sentence of confinement, but before action had been taken upon the same by the reviewing authority, escaped from custody, and, after the sentence had been duly api)roved and promulgated, was arrested, held that he would legally and properly be committed to the confinement adjudged. XXIX, 7. So, a soldier who escapes from custody i)ending the execution of a sentence of confinement, and subsequently 288 IMPRISONMENT. is arrested or surrenders himself, may legally be remanded to serve out his term as in a case of a civil prisoner. XXVII, 480 ; XXXYIII, 119. 13. But where a soldier sentenced to be confined for the re- mainder of his term of enlistment, or for a term not longer than the period remaining of such term, escaped, and was not arrested till after the end of such term, held that he could not be remanded to undergo the imprisonment adjudged by liis sentence, since this was clearly contemplated by the court to be executed pending the term of enlistment of the soldier, and could not legally be enforced after the period thus limited. X, 574; XY, 524; XXXI, 281. 14. The discharge, by executive authority under the Fourth Article of war, of a soldier whose enlistment has not expired, but who is undergoing a term of imprisonment imposed upon him by a sentence of court martial, (which did not also include the i:)enalty of dishonorable discharge, or imi3osed it to take effect at the end of the imprisonment,) held to operate not merely as a discharge of the soldier from his enlistment, but as a remission of the unexecuted term of his confinement and to entitle him to be set at liberty.^ XXXII, 80 ; XLI, 350. 15. So, where a soldier, while under a sentence of confine- ment for a term less than the remaining term of his enlist- ment, (imposed without dishonorable discharge,) was for a further offence, tried, convicted, and sentenced to dishonora- ble discharge and imprisonment, and was thereupon duly dis- charged accordingly, held that the period of the pending con- finement under the first sentence was thereupon terminated, leaving to be executed, after the discharge, only the confine- ment adjudged by the second seutence. XLI, 57G. 10. Where a soldier while undergoing a seutence of con- finement, is brought to trial for a further offence, and, on con- viction, is sentenced to a further term of iuix^risonment, the l^unishmeut thus adjudged is cumulative upon that pending, and its execution will properly commence at the date when the pending confinement terminates, whether by expiration of time or by remission. To render a i)unishment thus cumu- ^ See this opinion adopted and published in Circular from the War Department to Department Commanders of Aug. 12, 1871. And note an instance of its ap[)lication — to the cases of twenty three i^risoners — in G. C. M. O. 118, Dei)t. of the Missouri, 1871. IMPRISONMENT. 289 lative, it is not required that it should be designated as such by the court in the sentence. XXXI, 315; XXXII, G70; XXXIV, 479; XXXY, 433; XXXVIII, 43, 55G; XLIII, 102. 17. Where a soldier was at two successive trials tried for separate offences and was sentenced, upon the first trial to dishonorable discharge and imprisonment, and upon the sec- oijd to further imprisonment; and the two sentences were approved and promulgated in orders bearing the same date ; held that, as the law does not recognize fractions of a day,, these sentences were to be regarded as having gone into op- eration at the same moment, and taken effect as oue sentence, so that the execution of the dishonorable discharge imposed by the former sentence did not affect the enforcement of the punishment of confinement imposed by the latter sentence, but that the same was legally enforceable as cumulative or rather continuing upon the term of confinement imposed by the former sentence. XXXIV, 479. 18. Held that the Act of March 3, 1875, c. 145, providing for a deduction of five days in each month of good conduct, to be allowed at the end of the confinement, as a deduction from and abridgement of the term of sentence of prisoners convicted of offences, ^'against the laws of the United States," and confined under sentence in any prison of a State or Ter- ritory, (''which has no system of commutation for its own prisoners,") — applied to prisoners confined in such i)rison under sentence of courts martial, but did not apply to prisoners confined in military i)risons.^ XXXIV, 22. 19. Where, pending the confinement, under sentence, of a soldier in a militarj- prison, a x>ortion of his term of confine- ment was by competent authority remitted, held that he remained entitled, upon good conduct, to the abatement pro- vided in general terms by G. O. 64 of 1875 ; the fact of the ^ But see the subsequent G. O. 04, War Department, 1875, referring to this statute, (in connection with Sec. 1352, Kev. Sts., providing for the partial remission for good conduct of the sentences of prisoners confined in the Leavenworth Mili- tary Prison,) and applying to cases of prisoners in military prisons a rule similar to that established by such statute, as follows: — "To equalize the practice in regard to inmishment of military prisoners so far as i)racticable, an abatenient of five days for each month of consecutive good conduct may be al- lowed upon each sentence to confinement for over six months.'- 19 D 290 IMPROTEMENT OF RIYEES AND HAEBOES. remission not affecting his right to the abatement during the continuance of his term as reduced by the remission. XXXVII, 490. See eighty THIRD ARTICLE $ 5, 7. NINETY SEVENTH ARTICLE. DISCHARGE, III $ 10, 12. FORFEITURE, II $ 7. SOLITARY CONFINEMENT. SENTENCE AND PUNISHMENT $ 10, 13, 14. IMPROVEMENT OF RIVERS AND HARBORS. 1. When Congress, in the exercise of its exclusive power to direct how the public money shall be employed, has appro- priated a certain sum, to be devoted, without exceptions or provisos, to a certain specific internal improvement, it devolves upon the executive department of the government, charged as it is with the execution of the laws enacted by the Legis- lature, to proceed with the work under the appropriation, without entertaining any question as to the expediency of the expenditure. Thus where Congress had made in general terms an appropriation of a specific amount for improving a certain river, advised that it was for the officer charged with the improvement simply to do the worJcy without delaying to raise or consider questions or claims of title to the land, &c., to be affected by the improvement ; such matters being quite beyond the province of an executive official under the circumstances. XLIII, 101. 2. Where derelict articles — wrecks for example — are encoun- tered by officers of the engineer corps, as obstructions to the improvement of rivers, harbors, &c., required by Congress, (in the exercise of its power to regulate commerce,) to be cleared and improved, it will be legal and proper for such officers to remove such obstructions in the most effectual manner. If the property is not actually abandoned and is valuable, it will in general be expedient first to give notice to the owners, (personally if practicable, or, if not, through the newspapers,) themselves to make the removal within a certain reasonable time.^ XXXVI, 569. ^►See the recent Act of Jaimary 23, 1880, in which the giving of such a notice is specifically x)rovided for, in a par- ticular case. In an opinion of the Attorney General, of May 24, 1877, INDIAN — INDIAN COUNTRY. 291 3. Where a contract was about to be made with a civilian for the removal, from a harbor channel, of certain wrecks, not known to be fully abandoned, (and directed by Act of Con- gress to be caused to be removed by the Secretary of War,) and it was proposed by the engineer officer in charge to stipulate in the contract that the wrecks when removed should belong to the contractor, lield that this could not i^roperly be done, the United States having no property in such wrecks, (the same not being government vessels,) but simply a right to remove them as constituting obstructions to commerce between the States. XLIIT, 284. INDIAN. See army— employment OF FOR CIVIL PURPOSES $ 8. INDIAN COUNTRY. INDIAN WAR. WITNESS. INDIAN AGENT. See army— employment OF FOR CIVIL PURPOSES $ 8. CIVIL OFFICE ^ 5, note. INDIAN COUNTRY. 1. Eeld, (October, 1877,) that the term ^' Indian Country,*' as employed in the statutes regulating trade and intercourse with the Indians, (see, particularly, Ch. lY, Title XXVIII, Eev. Sts.,) might i^roperly be defined in general as including the following territory, viz. : Indian reservations occupied by Indian tribes : Other districts so occupied to which the Indian title has not been extinguished : Any districts not in other respects Indian country, over which the operation of those (XV Opins. — ,) it is held that the Secretary of War, where authorized hj an Api^ropriation Act to improve the na\igation of a navigable stream, may cause to be removed wrecks, not yet abandoned but still private property, if he considers them obstructions to navigation. And see his later opinion of April 27,1880, (XVI Opins.—,) as to the authority of the United States to improve navigable rivers to the disregard of indi- Tidual lights of property in the soil of the bed. 202 INDIAN COUNTRY. statutes may be extended by treaty or Act of Congress.' XXXIX, 214. 2. In view of the positive terms of Sec. 2140, Eev. Sts., an officer of the army not only may but should ''take and destroy any ardent spirits or wine found in the Indian country except such as may be introduced therein by the War Department.'^ The Section imposes this as a "duty" upon "any person in the service of the United States" — including of course military as well as civil officials. Held however that the authority given by the statute to destroy liquor brought into an Indian reservation did not authoiize the destruction by the military of a building, the private property of a citizen, in which the liquor was found stored. XXXV, 350. 3. Under Sec. 2150, Eev. Sts., a military commander may be authorized and directed by the President to arrest by mil- itary force and deliver to the proper civil authorities for trial, any white persons or Indians who may be in the Indian country engaged in furnishing liquor to Indians in violation of law ; as also to prevent, by military force, the entry into such coun- try of persons designing to introduce liquor therein contrary to law. Held that this authority to prevent was clearly an authority to arrest^ where arrests were found necessary to re- strain persons attempting to introduce liquor or other in- hibited property. XLII, 192. [See Army — Employ:vient OF FOR CIVIL PURPOSES § 6.] 4. In view of the duty devolved by Sec. 2140, Eev. Sts., upon "any person in the service of the United States," to take and destroy spirituous liquors in the Indian country, held that a ]30st commander in such country who seized and destroyed a quantity of such liquors introduced into such ^ See this opinion as adopted and incorporated in G. O. 97, Hdqrs. of Army, 1877 5 also, in the same connection, XIY Opins. of Attys. Gen. 290; United States v. Forty Three Gallons of Whiskey, 3 Otto, 188 5 Bates v. Clark, 5 Id. 204 ; United States v. Seveloff, 2 Sawyer, 311. That, in view of the Act of March 3, 1873, extendhig to it certain provisions of the Act of June 30, 1834, the Territory of Alaska is " Indian country," so far as concerns the introduction and disposition of s])irituous liquor, and that j^ersons violating such provisions may therefore be ai rested by militaiy force, — see In re Carr, 3 Sawyer, 310 ; also citation from sajiie case in note to Alaska § 2, and XIV Opins. of Attys. Gen. 327. INDIAN WAR. 293 country -without the aiithority of the Secretary of War, but not found within the limits of Ms military command^ had uot exceeded his powers. XXXI, 205. See post TRADER $ 11. INDIAN WAS. 1. Active hostilities with Indians do not constitute a state of foreign war, the Indian tribes, even where distinct poUtical communities, being subject to the sovereignty of the United States.^ Warfare inaugurated by Indians is thus a species of domestic rebellion, but it is so far assimilated to foreign war that during its i^endency and on its theatre the laws and usages, which govern and apply to persons during the exist- ence of a foreign war, are to be recognized as in general pre- vailing and operative. See Sixty Third Article § 4; Military Coivlmission, II § 4. That the mere making oi predatory incursions by parties of Indians with whose tribe no general hostilities have been inaugurated does not consti- tute an Indian war, — see Military Commission, II § 7 & note. 2. Held that the Cherokee ^Ration, during the late war, did not occupy the status of an insurrectionary State, and was not therefore included in the application of the statutes and proclamations which related to such States, but that its atti- tude from the date of its treaty with the confederate govern- ment of October 7, 1861, to its treaty with the United States of July 19, 18GC, was that of an ally of the confederacy, to the extent that the individual members of the nation who took part in hostilities against the United States became legally assimilated with the enemy. XXX, 20. 3. Indians, who, having occupied an attitude of hostility or quasi hostility toward the United States, have in good faith resumed and been admitted to friendly relations therewith, are entitled, as repentant wards, to the protection of the gov- ernment, and acts of violence committed against them as if they were enemies, are not acts of legitimate warfare but crimes. Thus where an officer in command of a regiment of volunteer cavalry, made a sudden and ^dolent attack ui)on a ^ See Worcester v. Georgia, 9 Peters, 515. 294 INJUNCTION — INSANITY. village of friendly Indians, (who, having been in a state of partial hostility had returned to their allegiance and had in fact been recognized as entitled to i:)rotection by the military authorities,) and caused the massacre of several hundred i)er- sons of whom the larger portion were women and children,^ — lield that his act was wholly unauthorized and criminal; and in view of the fact that by reason of the expiration of the term of his regiment he had been mustered out of the service before he could be brought to trial by court martial, — advised that, as a vindication of the good name of the army and the reputation of the government, which this atrocious act had compromised, there be issued from the War Department a General Order setting forth briefly the circumstances of the crime and so denouncing it as to discharge, as far as possi- ble, the military administration from responsibility therefor. XYII, 424. See twenty SECOND ARTICLE $ 3. FORTY SECOND ARTICLE. SIXTY THIRD ARTICLE $ 5, 6. INJUNCTION. See CIVIL PROCESS $ 4. INSANITY. 1. Where indications of insanity are developed by the ac- cused in the course of a trial by court martial, the court will properly suspend proceedings and report the facts to the con- vening* authority, adjourning meanwhile to await his orders.^ XXXIII, 661. 2. Where the behaviour or testimony of a witness, w^hile on the stand, gives indications of mental derangement, or ^ See this raid upon Cheyenne Indians in Colorado, known as the " Sandy Creek Massacre," described and denounced in the Eeport of the Congressional "Committee on the Conduct of the War," of May 4, 1865. ^ See a case of this nature, where this course was pursued, in G. C. M. O. 39, Dept. of the Missouri, 1868. As to the similar practice of the civil courts, see People v. Ah Ying, 42 Cal. 19 J also Tatfe v. State, 23 Ark. 34. INTEREST — INTENTOE. 295 pseudoma7iia\ (morbid propensity to falsify,) his examination, even in the absence of objection by the x>rosecution or defence, should in general be susi>ended by the court, and the facts reported to the convening authority for his direction or other action. XXX, 539. (See Witness § 8.] See EESIGNATION $ 4. INTEREST. See claims $ 5. INTERPRETER. 1. That a member of the court acted as interpreter on a trial, held an irregularity, but one which did not affect the legal validity of the proceedings. IX, 15. 2. Where the charges against a private soldier were pre- ferred by the captain of his company, who also acted not only as prosecuting witness but as interj^reter on the trial — held a grave irregularity which might well induce a disapi^roval of the proceedings and sentence, unless it quite clearly appeared that no injustice had been done the accused.^ YII, 562. 3. It has been the practice for interpreters to be sworn by the judge advocate truly to interpret the testimony to be given on the trial or by the witness, or in terms to such effect. XXI, 314. Xo article of war, however, or other statute, requires or authorizes the administering of an oath to inter- preters. INVENTOR. See compensation FOR PROPERTY TAKEN FOR PUBLIC USE. ^As to this well-recognized mania in medical jurispru- dence. — see Wharton & Stille § 185. 2 That an important witness on a trial should not properly be permitted to interpret the testimony of another such wit- ness, is remarked in G. 0. M. O. 24, Dept. of Texas, 1875. 296 JUDGE ADVOCATE. J. JUDGE ADVOCATE. 1. In view of the comprehensive terms of the 74th of the new code of Articles of War, lieJd (^December, 1879,) that ofScers empowered by Arts. 81 and 82 to order regimental or garrison conrts-martial were as fully authorized to detail judge advocates for the courts convened by them as were the officers who were empowered by Arts. 72 and 73 to order general courts.^ XLIII, 100, 221. 2. Any commissioned officer may legally be appointed judge advocate of a court martial. Thus a surgeon, assistant sur- geon, or even a chaplain, is legally eligible to be so detailed. IX, 377. [But see Medical Officer § 2.] 3. A separatejudge advocate should be appointed for each general court-martial convened by a department, or other competent, commander. The same officer may indeed be selected to perform the duties of judge advocate as often as may be deemed desirable by the commander, but he should be detailed anew for every court martial on which he acts. To api)oint in a general order a x^articular officer to act as ^ This view has been adopted and acted upon in G. O. 15, Hdqrs. of Army, Feb. 27, 1880, as follows : ^' Under the provisions of the 74th Article of War, officers who may appoint a Court-Martial shall be comj^etent to appoint a Judge Advocate for the same. Accordingly, a Judge Advocate is hereafter to be appointed for a Eegi- mental or a Garrison Court-Martial in like manner as for a General Court. General Orders IsTo. 49, of 1871, prescribing a form of oath for the Recorders of Regimental and Garrison Courts, is rescinded." In an official communication, of May 13th, 1880, addressed to the Comdg. Gen. of the Mil. Div. of the Atlantic, this order is declared by the Secretary of War to be intended to be mandatory, not duectory merely. JUDGE ADVOCATE. 297 judge advocate for all the courts to be held in the same com- mand would be quite irregular and without the sanction of precedent. II, 54; XVI, 429. 4. It is competent for the commander w^ho has convened a court martial to relieve the judge advocate originallj^ detailed for it and substitute another in his place, and the second may in the same manner be relieved by a third, &c. The reliev- ing, however, of a judge advocate, pending a trial, must in general embarrass the prosecution of a case, and should not be resorted to if it can well be avoided. V, 550; YII, 534. 5. A direction in an order convening a general court mar- tial, that if the judge advocate be prevented from attending the junior member of the court will act in his stead, held irregular and improper; the function of a judge advocate as prosecuting ofiicer, (see Art. 90,) not being properly com- patible with that of a member of a court martial. And — the member having acted as judge advocate in this case — advised that the proceedings, (though the Court had still retained five members,) be disapproved by the reviewing authority. II, 60; XXI, 300. A court martial has of course no authority to direct or emi^ower its junior member or any other ofiicer to act as its judge advocate. XXYIII, 198. [See Court Mar- tial, I § IC] G. An ofiicer serving as judge advocate on the staff of a department or army commander has as such no authority to act as judge advocate of a court martial convened by such commander. If it is desired that he should act as judge advocate of such a court, he should be specially detailed for the purpose. V, 140. 7. While a civilian may legally be appointed, or rather employed, as judge advocate of a court martial, such an employment has, for the past fifty years, been of the rarest occurrence in the military service.^ Civil judge advocates ^The last occasions of such employment are believed to have been those of the trial of the persons charged with com- lilicity in the assassination of Prest. Lincoln, and the trial of Major Hiiddock, Prov. Mar. Uept., (see G. C. M. O. oijij and 505, War. Dept., 1805,) upon which Hon. J. xV. Bingham and Hon. lloscoe Conkling were respectively employed as judge advocates. For an early case in which a civilian, who was afterwards a President of the United {States, was employed as judge advocate, see note to Member of the Court § 3. 298 JUDGE ADYOCATE. have been much more frequently employed for naval than for mihtary courts martial.^ Ill, 356 j XVI, 565 5 XX, 507. 8. While a judge advocate is not subject to challenge, (XXX Y, 618,) and it cannot affect the legal validity of the proceedings of a court martial that the judge advocate was personally objectionable or hostile to the accused, (XXVII, 127 j XLIII, 106,) it is yet desirable to detail as judge advo- cate, if practicable, an officer who has no considerable prej- udice against the party to be tried, or any decided personal interest in his case. Thus the selection as judge advocate of an officer who was not only a material witness for the prose- cution, but was the next in the line of promotion, and would be promoted, in case the accused, an officer of his regiment of a higher grade, were dismissed by the court — remarked upon as an unfortunate one.^ XXI, 177; XXXI, 361. 9. A judge advocate is not authorized to entertain charges in the first instance : he can proi)erly act upon charges, i. e. make service of the same, prepare the case for trial, &c., only when the charges are transmitted to him, for the purpose, by the officer who has convened the court or detailed him as judge advocate. XLII, 202. 10. The judge advocate is not unfrequently directed to pre- pare or re -frame charges ; but where charges, already form- ally preferred, are transmitted to him for prosecution, he should not assume to modify them in material particulars in the absence of authority from the convening officer. While he may ordinarily correct obvious mistakes of form or patent or shght errors in names, dates, amounts, &c., he cannot without such authority, make substantial amendments in the allegations, or — least of all — reject or withdraw a charge or specification, or enter a 7iolle ijrosequi as to the same, or sub- stitute a new and distinct charge for one transmitted to him ^ In view of the provisions of Sec. 17 of the Act of June 22, 1870, (Sec. 189, Eev. Sts.,) transferring to the Department of Justice the authority to employ counsel for the executive departments, neither the Secretary of War nor the Secretary of the Xavy is now authorized to retain a civilian la\Yyer to act as judge advocate of a court martial. XIII Opins. of Attys. Gen. 514; XIV Id. 13. 2 See G. 0. M. O. 5, War Dept., 1871 j do 41, Id., 1875. JUDGE ADVOCATE. 299 for trial by the proper superior.^ II, CO; XXI, 56. [See Court Martial, I § 7 ; Charge § 28.] 11. A competent judge advocate will properly be left by the court to introduce the testimony in the form and order deemed by him to be the most advantageous, and generally to bring on cases for trial and conduct their prosecution ac- cording to his own judgment.^ X, 358. 12. The duty of the judge advocate toward the accused should not be regarded as confined to the limited i)rovince of " counsel for the prisoner" as the same is defined in the 90th Article of War. Where the accused is ignorant and inex- perienced and without counsel — especially where he is an enlisted man — the judge advocate should take care that he does not suffer upon the trial from any ignorance or miscon- ception of his legal rights, and has full opportunity to inter- pose such plea and make such defence as may best bring out the facts, the merits, or the extenuating circumstances of his case. Y, 577. 13. For the judge advocate to counsel the accused, when a soldier or inferior in rank, to plead guilty, must in general be unbefitting and inadvisable. But where such plea is vol- untarily and intelligently made, the judge advocate should properly advise the accused of his right to offer evidence in explanation or extenuation of his offence, and, if any such evidence exists, should assist him in securing it. And where no such evidence is attainable in the case, the judge advocate should still see that the accused has an opportunity to present a " statement," written or verbal, to the court, if he has any desire to do so. Y, 77. 14. A judge advocate of a court martial has no authority to place in arrest an officer or soldier about to be tried by the court, or to compel the attendance of the accused before the court by requiring a non-commissioned officer to bring him or otherwise : these are duties which devolve upon the con- vening authority, or upon the post commander or other proper ' See G. O. 64,~Dept. of the Cumb^and,"T8G77 do. 98, Id., 18G8 ; do. 85, Dept. of the South, 1871 ; G. C. M. O. 30, 42, Dept. of the Platte, 1877; do. 13, Id., 1878; do. 48, Mil. Div. of Pacific & Dept. of Cal. 1880. 2 Compare G. C. M. O. 97, Dept. of Dakota, 1878; do. 38, Dept. of Texas, 1878; and — as to the civil practice — United States V. Burr, 1 Burr's Trial, S5, 409; Lynch v. Benton, 3 Eob. 105; Davany v, Koon, 45 Miss. 71. 300 JUDGE ADVOCATE. officer in whose custody or commaud the accused is at the time. XXVIII, 531. [See Court-Martial, I § 8, note.] 15. It is strictly the proper practice for a judge advocate not to give his opinion ui^on a i^oint of law arising upon a military trial, unless the same may be required by the court. This practice, however, is often departed from, and the opin- ions of judge advocates, suitably tendered, are in general received and entertained by the court without objection, whether or not formally called for. But where the court does object to the giving of an oi)inion by the judge advocate, he is not authorized to attempt to give it, and of course not au- thorized to enter it upon the record. Whether the fact — that the opinion was offered and objected to by the court — shall be entered upon the record, is a matter for the court alone to decide. It is, however, certainly the better i)ractice that all the proceedings, even those that are irregular , which trans- pire in connection with the trial, should be set out in the record for the insi)ection of the reviewing authority. XXYI, 251. [See Eecord, 1, a.] IC. In our military i^ractice, (deemed in this respect to be oi)en to criticism,) the judge advocate invariably remains with the court when closed for deliberation upon the findings and sentence : this, in order that he may advise the court upon any question in regard to which his oi^inion is desired, and assist it in making references to the testimony and pro- ceedings in the record, and may also complete the record by the proper entry of the judgment as pronounced. XXYIII, 353. 17. It is one of the duties of the judge advocate to prepare the '^ complete and accurate record " which '^ every court mar- tial " is required, by par. 891 of the Army Eegulations, to ^' keep." He should, if practicable, complete the record of each day's proceedings in time to be submitted to the court at the next day or next session for ai)proval or correction. The record is the record of the court^ and the judge advocate is subject to the direction of the court in preparing it. XXI, G79. 18. An absence of the judge advocate from the court dur- ing the trial does not per se affect the validity of the proceed- ings, but is of course to be avoided if i^ossible. When the judge advocate is obliged to temiiorarily absent himself, the JUDGE ADVOCATE. 301 court should iu general susi)end tlie proceedings for tlie time ; or, if his absence is to be i)rolonged, should adjourn for a cer- tain i)eriod. XXI, 177. 19. Should the judge advocate be required to give evidence as a witness, the clerk or reporter of the court may go on to record his testimony while on the stand ; or, if there be no clerk or reporter, he may record his own testimony as that of any other witness. XXI, 177. 20. A judge advocate of a court martial may be detailed to perform other duty, as that of officer of the day or member of a board of survey, if such duty will not interfere with his duties as judge advocate. But in general of course no duties, in addition to those incidental to his function as judge advo- cate, should be imposed upon him pending an important trial. XXIX, 273. 21. The judge advocate in our practice is entitled to the closing argument or address to the court, and he may present an address although the accused waives his right to present any ; the function of the judge advocate, at this stage of the proceedings, not being confined merely to a replying to the ac- cused. XXXII, 497. The judge advocate in his address is not authorized to read to the court evidence or written state- ments not introduced upon the trial and which the accused has had no opportunity to controvert or comment upon. XXII, 238. 22. Where there have been two or more judge advocates successively detailed in the course of a trial, the one who is acting at the close is the one, (and the only one,) required to authenticate the i)roceedings by his signature. II, 118. 23. The only authority for the employment of reporters for courts-martial is that contained in Sec. 1203, Eev. Sts., which authorizes the judge advocate of a military court to appoint a reporter for such court. In view of this statute, lield that the appointment, by a judge advocate on the staff of a department commander, of a person to act as rei)orter for all the courts to be convened in the department, was in contravention of law and of no effect. XI, 301. 21. For the court or the president of the court to i>lace or order the judge advocate in arrest would be an unauthorized proceeding. The court indeed, in a proi)er case under Art. 80, might proceed against its judge advocate as for a con- 302 JURISDICTION. tempt. But an arrest could not be imposed nor a punishment executed in the case of such officer, except through the con- vening authority or other competent commander. Ill, 603 ; XXI, 629. 25. Where the court was convened by a military officer — as, in a case of a general court, the general of the army or a department or army commander — it is the duty of the judge advocate, \\\)ou the completion of the record, to transmit the same to such officer, (or his successor in command,) for the I^roper action. Where the court was convened by the Presi- dent, it is the duty of the judge advocate to transmit the completed proceedings directly to the Judge Advocate Gen- eral,^ in order that, as the staff officer of the President, he may exercise the revisory function reposed in him by Sec. 1199, Eev. Sts.2 XLII, 457. 26. Up to the time of the dissolution of the court for which he is appointed, a judge advocate is competent to administer an oath to an affiant or deponent, in cases of public property lost or destroyed, under the circumstances indicated in par, 1031 of the Army Eegulations. XXXIII, 450. [See Oath, I §2.] See counsel, II. COURT MARTIAL, I $ 17. PROSECUTOR. REVISION $ 3,6. WITNESS $ 5, 9, 13, 21, 22, 28, 33. JURISDICTION. See cession OF JURISDICTION. CIVIL PROCESS $ 4,5. COURT MARTIAL, II. LAW OF WAR § 12. MILITARY COMMISSION, IL ^ See G. O. 72, War Dept., 1873; do. 39, Hdqrs. of Army, 1877. ^It may here be noted that the One hundred and thirteenth Article of War, the only statute relating to the forwarding, by judge advocates, of the proceedings of general courts, is incomi^lete, and not in harmony with the provisions of Arts. 101 and 109. The practice on the subject — as determined by par. 896, Army Eegulations and the supplementary Orders indicated in the foregoing note — represents quite accurately the existing law, and is as stated in the text. LAND— LAW OF WAH. 303 L. LAND. CESSION OF JURISDICTION. MILITARY RESERVATION. PUBLIC PROPERTY— DISPOSITION OF $ 1-3, 5-12. LARCENY. See SIXTY SECOND ARTICLE $ 2, 4. PLEA $ 6. LAWFUL COMMAND OR ORDER. See TWENTY FIRST ARTICLE $ 7, 8. TWENTY SECOND ARTICLE $ 2. LAW OF WAR. 1. The law of war is, in brief, the law of military govern- ment and authority as exercised in time of war, foreign or civil. Its usual field is the territory of a conquered country in the occupation of a hostile army : it is sometimes extended however, though generally in a milder form, to localities under ^'martial law." [See Martial Law § 1.] It is prop- erly a part of the law of nations, though its api^lication may be materially varied by the circumstances of the country or the people brought under its sway. It is a fundamental principle of the law of war that, during a state of war, all commercial intercourse between the bellig- erents is interdicted and made illegal except when and where it may be expressly authorized by the Government. During the late civil war, which, as respects the application in gen- eral of the laws and usages of war, was assimilated to a for- 304 LAW OF WAR. • eigu war/ all trade and intercourse witli the enemy, except so far as i)ermitted by the President under authority from Congress, (or in rare cases by a commanding general in the field representing the President,) was necessarily suspended.^ XI, 553, G47, 6515 XIV, 241; XV, 275; XVI, 572; XIX, 673 ; XXX, 346. 2. As to the x>rincipal forms of violation of the law of non- intercourse, and other violations of the laws of war, made the subject of trial by military commission during the late war, see Military Commission, II § 3. 3. Where a chaplain of the confederate army came within the lines of the IT. S. army during the war without the authority of the federal government, and was apprehended, tried and convicted of the offence involved, and sentenced, (December, 1864,) to be confined during the war, advised that while his act was in violation of the law of war, yet, as it ai)peared that his only object in coming within our lines was to pur- chase bibles, his punishment might well be remitted on his taking the usual oath of allegiance to the federal government. XI, 553. 4. Offences against the law of non-intercourse between the belligerents in time of war are no less such when committed by foreigners than when committed by citizens. Thus where certain persons made their way early in the late war from ' See Prize Cases, 2 Black, 666-9 ; Dow v. Johnson, 10 Otto, 164 5 Brown v. Hiatt, 1 Dillou, 372 ; Phillips v. Hatch, Id. 571 ; Sanderson v. Morgan, 39 X. York, 231 ; Perkins v. Eogers, 35 Ind. 124 ; Leathers i\ Com. Ins. Co., 2 Bush, 639 ; Hedges v. Price, 2 West Ya. 192. 2 The Oachita Cotton, 6 Wallace, 521; Cappell v. Hill, 7 Id. 542, 554; McKee v. United States, 8 Id. 163 ; United States V. Grossmayer, 9 Id. 72 ; Montgomery i\ United States, 15 Id. ode ; Hamilton v. Dilliu, 21 Id. 73; Mitchell v. United States, Id. 350; Matthews v. McStea, 1 Otto, 7; Dow v. Johnson, 10 Id. 164 ; Kershaw v. Kelsey. 100 Mass. 561 ; Lieber's Instruc- tions, CI. O. 100, War Dept'., 1863, par. 86. Beside the sus- pension incident to the state of war, a suspension of commer- cial intercourse with the enemy was specially directed by Act of Congress of July 13, 1861, and i)roclaimed by the President on Aug. 16, 1861. By authority conferred by the same stat- ute. General Regulations, concerning connnercial intercourse with and in tlie States declared in insurrection, were approved by the President, January 26, 1864, and published in G. O. 53, Dept. of the Gulf, of April 29, 1864. LAW OF WAR. 305 Scotland to South Carolina, engaged for a considerable period in the manufacture of treasury notes for the confederate au- thorities, and at the end of their employment came secretly and without authority into our lines with the design of returning to their home, — held that, though British subjects, they had identified themselves with the cause of the enemy, and were l)roperly amenable to trial for the oftence of i)enetrating our military lines in violation of the laws of war. XV, 112. 5. Where a i)arty arrested in attemi^ting witliout authority to cross the Potomac for the purpose of holding communica- tion with persons in the enemy's country, was ordered by the Department Commander — his offence having been committed in a district in military occupation — to be placed under mili- tary surveillance and to furnish a bond with sufficient sureties, obliging him not to attempt again during the war to join or hold intercourse with the enemy, — held that such i^roceeding was warranted by the laws and customs of war. Ill, 255. 6. Two soldiers of the United States army having been seized and delivered across the lines to the enemy, by a party of civilians^ in a i^ortion of one of the insurrectionary States in the occupation of the federal forces, an equal number of citizens of the district were ordered by the commanding gen- eral to be arrested and held till the offenders, Avho meanwhile had taken refuge with the enem}', should be surrendered for trial. Held that such an act of retaliation was warranted by the laws and usages of war. IX, 210. 7. There can be no doubt as to the authority of the com- mander of an army, in occupation and government of the enemy's country, to supi)ress a newspaper or other publica- tion deemed by him to be injurious to the public interests in exciting opposition to the dominant authority or encouraging the support of the enemy's cause on the part of the inhabit- ants. A newspaper may be a powerful agent for such a pur- pose, and, when it is so, it may, under the laws of war, as legally be silenced as may a fort or battery of the enemy in the field. II, 585. 8. Held, (January, 18G5,) that a system of correspondence which had been concerted and maintained between northern and southern newsj^apers by means of an interchange of pub- lished communications entitled '^ Personals," was an evasion 20 D 306 LAW OF WAE. of the rule interdicting Intercourse with the enemy in time of war^ and, not being within the regulations established for correspondence by letter between the lines by flag of truce, should not, however innocent might be many or most of the communications, be sanctioned by the government, but that the proprietors of the northern newspapers concerned should be notified that unless the practice were discontinued, they would be liable to be proceeded against for promoting corres- Ijondence with the enemy in violation of the laws of war or of the special Act of February 25, 1863.^ XII, 250. 9. The taking possession, by the order of the commander of the military department at Xew Orleans, for the use of the military service in the i)rosecution of the war, of moneys be- longing to enemies, on dej^osit in the banks of that city, while occupied, (in 1863,) by our army, Jield an act justified by the law of war.^ XIX, 612. 10. Contributions of money exacted from the enemy by competent military authority, being justified by the law of war and conquest,^ held that a tax of five dollars per bale, levied, (in 1864,) by the military commander at Xew Orleans, Gen. Canby, upon cotton brought into that city, and applied to hospital, sanitary and charitable purposes, was authorized under the discretionary j^ower with which such a commander was properly invested in time of war.'^ XYIII, 66S. 11. It is a i3rincii)le of the law of war that the municipal laws of a conquered country continue in force during the military occupation by the conqueror, except in so far as the same may necessarily be suspended or their operation be af- ' See G. O. 10, Dept. of the East, 1865. - See New Orleans v. Steamboat Company, 20 Wallace, 394 ; Witherspoon v. Farmers' Bk.2 Duvall, 497. But in Planters' Bank v. Union Bk. 16 Wallace, 483, this particular order was held to have been an exceeding of authority, not because unauthorized by the law of war, but for the reason that a previous commander — Gen. Butler — by his proclamation on fii'st occupying the city, of May 1, 1862, had pledged the government to the holding inviolate of all rights of ])roperty. And see The Venice, 2 Wallace, 258. ^ Lewis V. McGuire, 3 Bush, 202; Clark v. Dick, 1 Dillon, 8. And see Maj. Gen. Scott's order, (G. O. 395, Ildqrs. of Army, 1847,) levying assessments ui)on Mexican communities for the sui^i^ort of the military government and occupation. * See Hamilton v. Dillin, 21 Wallace, 73. LAW OF WAR. 307 fected by Lis acts.^ So, where a testator liad executed, in Yicksburg, Mississippi, after its capture and during its occu- pation by our forces, a will devising real estate ; but such will, in not being attested by the required number of witnesses, was invalid under the State law ; licld^ that as this law was in no respect modified upon the capture, the devisee under the will, however loyal, could not properly be invested by military authority with the legal title to such estate against the heirs at law. XIX, 474. 12. It is authorized by the laws of war for a military offi- cer commanding in time of war in a region in military occu- pation, and where the ordinarj^ courts are closed by the ex- igencies of the war, to appoint a special court or judge for the determination of cases not properly cognizable by the ordi- nary military tribunals. In the late war such courts were not unfrecxuentl}' constituted and were commonly designated j)ro- vost courts. II, 14 j XV, 51 9. Such courts had no jurisdiction of purely military offences, (i. e. offences which the Articles of War make cognizable by court martial,) and were therefore not properly authorized to impose forfeitures of pay or other strictly military inmishments ujion officers or soldiers of the army.' YI,G35; VIII, G38; X, o9,5G0 5 XIII, 55, 114. These courts were in general resorted to as substitutes for the ordi- nary police courts of cities, and their jurisdiction was in gen- eral confined to cases of breaches of the peace and of viola- ^'^By the well recognized principles of international law, the mere military occupation of a country by a belligerent power or a conqueror, does not ipso facto displace the munic- ipal laws. Such conqueror or belligerent occupier may sus- pend or supersede them for the time being, but, in the absence of orders to that effect, they remain in force." W'ingfield r. Crosby, 5 Cold. L*4G. ''Supreme military authority in a city is not incompatible with the existence and authority of courts of civil jurisdiction and procedure." Pepin r. Lachenmeyer, 45 X. York, 27. And see Kimball v. Taylor, 2 \Yoods, 37 ; Eutledge v. Fogg, 3 Cold. 554; Hefferman r. Porter, G Id. 391 ; Murrell v. Jones, 40 Miss. 5()(y ; Dow v. Johnson, infra. But where the courts of a hostile country are left open by the conqueror, it is only the citizens of such country that are subject to their jurisdiction : the officers and soldiers of the occupying army are in no manner amenable to the same. This principle has recently been illustrated by the Supreme Coiu-t in the cases of Coleman v. Tennessee, 7 Otto, 509 ; Dow V. Johnson, 10 Otto, 158, 1G6. 308 LAW OF WAR. tion of such civil ordinances or military regulations as might be in force for the government of the locality. Some of these courts, however, took cognizance, in the course of their exist- ence, of cases of very considerable importance, civil as well as criminal.^ XIII, 392. See ninth ARTICLE. MILITARY COMMISSION, I $ 1 ; ID. II $ 1- ^ See the following General Orders establishing or relating to Provost Courts and similar tribunals: G. O. 41, Dept. of Virginia, 18G3; do. 45, Dept. of the Gulf, 1863; do. 6, 77, Id. 18G4 ; do. 103, 146, Dept. of Washington, 1865 ; do. 39, Id. 1866 ) do. 102, Dept. of the South, 1865 ; do. 30, 38, 49, ^S^ Dept. of S. Carolina, 1865 ; do. 37, Id. 1866 ; do. 31, Dept. of the Mississippi, 1865 ; do. 12, Dei^t. of Arkansas, 1865 •, do. 5, Mil. Div. of the James, 1865; do. 31, First Mil. Dist., 1867 ; Circ, Second Id. May 15, 1867 ; G. O. 29, 61, Id. 1868 ; do. 4, Fifth Id. 1869 ; also Gen. Wool's G. O. 516 of 1847. While the majority of these special tribunals were confined to the exercise of such functions as are commonly devolved upon police or justices' courts, their authority, when emi^ow- ered for the purpose by a competent military commander, to take cognizance of important civil actions has been affirmed by the Supreme Court of the United States in the case of Mechs'. & Traders' Bk. v. Union Bk., 22 Wallace, 276, in which a i' Provost Court,'^ established at ]S"ew Orleans by an order of the department commander, of May 1, 1862, was held to be a lawful tribunal, and a judgment rendered by it in an action for the recovery of $130,000, money borrowed by one bank from another, was recognized as legal. [See this case also in 25 La. An. 387.] So, the authority of the ^'Provisional Court of Louisiana," (which succeeded the "Provost Court '^ last indicated, and was established by the Fresident, in an Executive Order of Oct. 20, 1862,) to determine a cause in admiralty, was affirmed by the United States Supreme Court in The Grapeshot, 9 Wallace, 129, and later its jurisdiction in a civil action on a mortgage debt was recognized by that tribunal in Burke v. Miltenberger, 19 Wallace, 519. [And see the same case, as Burke v. Tregree, in 22 La. An. 629.] The authority of the same court to take cognizance of a case of murder and one of arson, (as also of civil controversies,) was maintained in an elaborate opinion of its judge, Hon. C. A. Peabody, (in 1865,) in the cases of the United States v. Eeiter & Louis, re- l^orted in 13 Am. Law Peg. 534. The civil jurisdiction of a similar war court — the " Com- mission" established by the Department Commander in Memi)his in 1863 — was similarly recognized in Ilefferman v. Porter, 6 Cold. 391. And as to the full authority of this LEASE — LEAVE OF ABSENCE. 309 LEASE. See CONTRACT ^ 1, 12. PUBLIC PROPERTY— DISPOSITION OF § 1, LEAVE OF ABSENCE. 1. The provision of tbe Act of July 29, 1876, to tlie effect that officers sliall enjoy the extended leaves of absence accorded by the Act, '' without deduction of pay or allow- ance," held to entitle such officers to receive their allowance for quarters, as well as their full pay for and during- the period of absence. The word '' allowance" must mean something — must mean some pecuniary emolument distinct from pay ; and the only allowance or pecuniary emolument allowed to officers, at the date of the Act or since, is the allowance for quar- ters.^ XLIII, 277. tribunal as a substitute for the ordinarj^ civil courts of the locality, see also State v. Stillman, 7 Cold. 341. [But see, contra, Walsh v. Porter, 12 Heisk. 401.] In the cases thus sustaining the action of special tribunals during the late war, the courts in general refer to the earlier and leading case of Leitensdorfer r. ^Yebb, 20 Howard, 170, in which was affirmed the authority of the courts estabUshed in 1840 in New Mexico as a i^art of the system of civil gov- ernment instituted by Gen. Kearney, the military command- ant. [With this case consult also United States v. Eice, 4 Wheaton, 254 ; Cross r. Hairison, 10 Howard, 104.] The reasoning ux>on which the above cited later rulings is based is, — that the authority to create courts with a civil as well as a criminal jurisdiction in a conquered country in mil- itary occupation attaches to the dominant power by the law of war and of nations, as an incident to the power to estab- lish a military government ; that it is not only the right but the duty of the conqueror to institute such courts '' for the security of persons and i)roperty and for the administration of justice"; and that when during the late war such courts were created by commanding generals — such as the com- manders of separate departments or armies — the order of the commander was to be presumed to be the order and act of the President. ^ Opposed to this view are the opinions of the Solicitor Gen- eral, of January 10, 1879, (XVI Ojjins. — ,) and of the Second 310 LESSER mCLUDED OFFENSE. 2. Held,, in estimating the period of tlie leave of absence to which a certain officer would be entitled, under the pro\isions of Sec. 1265, Eev. Sts., and the Act of July 29, 1876, without incurring a deduction from his pay, that a period during which he was permitted to be absent from his post, while under a sentence of suspension from rank, was not x)roperly to be taken into account ; such absence not being an absence of an ^' officer on duty " in the sense of the Act of 1876, but an absence pending the execution of a sentence which, during its term, separated the officer from all duty. XLII, 306. 3. Where an officer was granted by his department com- mander a si^ecific leave of absence from his station, and was thereupon furnished with an order to proceed on a special detail to Washington, with authority to date his leave from his arrival at Washington; held that he was not thereby authorized to consider his leave as terminating at Washing- ton, or his case as excepted from the general rule of par. 176 of the Army Eegulations, which requires that the exi^iration of an officer's leave ^'must find him at his station;" and therefore that, on his return to Washington at the end of his leave, he did not revert to the status of being on duty, and was not entitled to an order, (drawing mileage,) to return to his station, but was in a status of being absent without leave, and was subject to a consequent loss of pay till he duly reported at his station.^ XLIII, 281. As to the right to mileage of an officer whose leave of absence is terminated by an order requiring him to return to his station, &c., — see Mileage § 1, 2, 3. LESSER INCLUDED OFFENCE. See one HUNDRED AND SECOND ARTICLE $ 2. FINDING ^ 8. sentence and punishment ^ 5. Comptroller of the Treasury, of December 8, 1879. The ques- tion involved is now pending before the Court of Claims, hav- ing been, on January 27, 1880, submitted thereto by the Sec- retary of War, under Sec. 1063, Rev. Sts. ^ Compare opinion of Court of Claims in Andrews v. United States, 15 Ct. CI. — LICENSE — LOSS OF FILES. 311 LICENSE. Held that an officer of tlie army, duly charged with the duty of making a sale of damaged, «S:c., medical supplies under the authority of Sec. 1241, Rev. Sts., (by which the President is empowered to order such sales in certain cases,) could not lawfully be required to take out and pay for a license as a merchant under the laws of the State in which the sale was to be made. Such a requirement would be a restriction upon the regular and legal execution of the powers of the general government, and therefore beyond the authority of a State. XXXIX, G. [See Tax § 1.] See post TRADER $ 3 and note. PUBLIC PROPERTY— DISPOSITION OF $ 3. LIMITATION. See one HUNDRED AND THIRD ARTICLE. RETIREMENT $ 2. LOSS OF FILES. 1. Loss of, or reduction in, files or steps, {i. e. relative rank,) in the list of the officers of his grade, is a recognized legal punishment by sentence of court-martial, in a case of a com- missioned officer. Like disqualification, it belongs to the class of continuing punishments.^ XXI, 382. 2. Where a court martial convened by a department com- mander for the trial of an officer, sentences the accused, upon conviction, to the punishment of a loss of files or steps in the list of officers of his rank, the approval of the commander is sufficient to give full effect to the sentence, and no action by superior authority can add anything to its effect or conclusive- ness. The code does not, as in the case of a sentence of dis- missal, render a confirmation by the President essential to the execution of such a i)unishment, and the fact that the same involves a change in the Army Eegister does not make See XII Opins. of Attys. Gen. 547 312 LOSS OF FILES. requisite or proi^er a revision of the case at the War Depart- ment. All that is called for, upon the approval of such a sentence by the commander, is simply to notify the Secretary of War thereof by forwarding a copj' of the General Order promulgating such approval. The proceedings, (or their sub- stance,) as affecting officers other than the accused, may then well be republished in General Orders from the Adju- tant General's Office. XXXYI, 134 j XXXVII, 83- XLIII, 286. 3. The effect of this punishment is to deprive the officer of such relative right of promotion, as well as right of command, and of precedence on courts or boards and in selecting quar- ters, &c., as he would have had, had he remained at his original number. Such effect continues till the sentence is remitted. XXII, 05. But this punishment can not per se affect the officer's right to pay. [See Forfeiture, II § 2. J 4. This x:>unishment has sometimes been remarked u^oon as an objectionable one,^ apparently mainly on account of the inequality of its effect upon other officers of the grade of the officer sentenced. Thus, where an officer is reduced a certain number of files, those below whom he is placed are advanced while those below himself gain nothing. Where he is reduced to the foot of the list, this objection does not apply : this form of the i^unishment, however, where the list is a long one, is extreme and severe ; more severe, often, than suspension for a fixed term. XXXV, 238. See pardon ^ G. RETIREMENT ^ 11. SENTENCE AND PUNISHMENT $ 6. SUSPENSION $ 4. ^See G. 0. M. O. 25, War Dept. 1873 5 do. 2, Dept. of Da- kota, 1873 &C. — ^MANSLAUGHTER. 313 M. MAKING GOOD TIME LOST BY DESERTIOBT. See forty EIGHTH ARTICLE $ 1—5. ARREST, II $ 1. MANSLAUGHTER. 1. That this crime, when its commission by an officer or soldier affects directly the discipline of the service, (as where the person killed is another officer or soldier, and the killing occurs at a military post or while the parties are on active service,) may be taken cognizance of by a court martial, in time of peace, under Art. 62, as "conduct to the prejudice of good order and military discipline" — see Sixty Second Article §1,2. In time of tear it is made so cognizable — when committed by an officer or soldier under any circum- stances — by Art. 58. 2. A party of soldiers left their camp at night in time of war without leave and contrary to positive orders, and proceeded to a neighboring town, where they created a disturbance. Their commanding officer followed them, found them at an ale-house, and was about to arrest them when they broke from him, and, though knowing who he was, disregarded his order to halt and continued to run. He repeated his order, and not being obeyed, and having no other means of detain- ing them, fired upon them whUe fleeing, with his pistol, and shot and killed one of them. Having been brought to trial by court martial under a charge of murder, he was convicted of manslaughter, and sentenced to dismissal, forfeiture of pay, fine and imprisonment. Held^ in view of all the circum- stances of the case, that the finding and sentence would proi^- erly be disapproved.^ XI, 592. ^ Disapproved accordingly in Gr. C. M. O. 177, War Depart- ment, 1805. Compare the case of a killing by a deputy U. S. Marshal under similar circumstances, referred to by the Attorney General, in XIY Opinions, 71. 314 MANSLAUGHTER. 3. Wliere, in time of jpeace^ a soldier wliile rmming toward liis quarters from two officers of the command, who were at- temx)ting to arrest him for disorderly conduct at night, was, by the order of the superior officer, fired at by the inferior and mortally wounded ; and it was doubtful upon the evidence whether a sufficient effort had been made to halt the soldier before firing, while at the same time it appeared quite prob- able that he might subsequently have been identified at the post and duly i)unished, — lieJd that, whatever may have been the offence, if any, of the junior ofiicer, the sui)erior, who directed the firing, might, upon the death of the soldier from his wound, i^roperly be brought to trial on a charge of ''man- slaughter to the prejudice of good order and military disci- pline." XXY, 592. 4. Where a soldier, confined with other prisoners in a guard house, in time of peace, was under the influence of liquor and noisy, and continued to be noisy and disorderly though repeat- edly ordered by the officer of the day to keep quiet, and was finally struck or thrust in the breast by the latter with his sword and mortally wounded so that he presently died; and It did not appear that there was any danger of mutiny or serious disturbance on the part of the other prisoners i)resent at the time, — lield that the evidence established no sufficient justification for a resort by the officer to such an extreme pro- ceeding, and that his conviction by court martial of " man- slaughter to the prejudice of good order and military discip- line," and sentence of dismissal, were warranted and proper. An officer has no right to take the life of a soldier, nor to commit a battery upon him with a dangerous weapon, except in a most aggravated case : as in a case of riot, rescue or mutiny, violent resistance to superior authority, escape, or refusal to obey a lawful order requiring instant obedience — when no other but such extreme means will restrain or compel compliance.^ And an act of killing of a soldier, which in time of war might be justifiable homicide, might be man- slaughter, or even murder, (see MukdiiIK § 1,) in time of i^eace. XXXVIII, 579. ^ See remarks of Secretary of War in G. 0. M. 0. 47, Hdqrs. of Army, 1877; and compare United States v, Carr, 1 Woods, 484; also Orders cited in note on page 4513. MAEEIAGE — 3IARTIAL LAW. 315 MARRIAGE. 1. In the absence of express authority given by a statute of the State or Territory, an officer of the army cannot be em- powered to solemnize marriage, whether the male party be a soldier or a civilian. XXIX, 074. 2. A military commander, authorized to grant or refuse passes or furloughs to his command, may of course refuse per- mission to leave the post to a soldier whose purpose is to become married. A commander may also, if the interests of discipline require it, exclude the wives of soldiers, (who are not laundresses,) from a post under his command at which their husbands are serving. But while the Army Eegaila- tions, (par. 930,) forbid the enlisting, (in time of peace, with- out special authority',) of married men, there is no statute or regulation forbidding the contracting of marriage by soldiers, any more than by officers, while in the service. So held that, under existing law, a military commander could have no au- thority to prohibit soldiers, while under his command, from marrying ; and that the contracting of marriage by a soldier, (although his commander had forbidden him, or refused him l)ermission, to marry,) could not properly be held to consti- tute a military offence. AYhere indeed there is involved in the conduct of the soldier at the time any military neglect of duty or disorder, he may, for this indeed, be brought to trial but not for the marrying as such. And remarlxed^ that if the marrying by soldiers after enlistment becomes so generally practiced as to be demoralizing to the army or otherwise prejudicial to discipline, the evil can effectually be repressed only through new legislation by Congress. XXXVIII, 47, 407 ; XLIII, 109. See enlistment, $ 2, and note. MARTIAL LAW. 1. Martial law is a modified degxee of the law of war, (see Law of Wae,) or a law assimilated to the latter, called into exercise temporarily and for a specific piu'pose, at a time of war or public emergency, and generally in a place or region not constituting enemy's country, or under permanent military 316 MARTIAL LAW. govermnent.^ Whether proclaimed by the President or de- clared by a competent military commander, martial law over- rides and supersedes, for the time being, all civil law and authority, except in so far as the same may be left operative by the terms of the announcement,^ or the action or acquies- cence of the dominant power. While the status of martial law continues, the military power, instead of being subordinate, is superior to the civil power, and the natural and normal con- dition of things is thus reversed. But while martial law will warrant a resort by the commander, at his will, to summary and arbitrary measures, by which the liberty of the citizen may be restrained, his action coerced, and his rights suspended, it cannot be availed of by subordinates to justify acts of unne- cessary violence, i)ersonal persecution, or wanton wrong.^ XII, 105 5 XIX, 41. 2. Where a city or district has been put under martial law by the commanding general, he becomes its supreme governor, and, in governing, is ordinarily to be presumed to be em- powered to exercise the same authority which the President might have exercised had he proclaimed martial law therein.* X, G69. 3. In view of the President's proclamation of July 5, 1864, suspending the writ of habeas corpus, and establishing martial ^ Xote the distinction between military government i^roper and martial law as illustrated in Milligan's Case, 4 Wallace, 142. '^ Luther v. Borden, 7 Howard, 13-14 ; United States v, Dickelman, 2 Otto, 526; In re Egan, 5 Blatch. 319, 321; Griffin v. Wilcox, 21 Ind. 376 ; Johnson v. Jones, 44 Ills. 153 ; In re Kemp, 16 Wise. 359; Clode, (Military and Martial Law,) 183-191; Hough, (Precedents,) 514, 549; G. O. 100, War Dept., 1863, Sec. I. ^ ^'But the existence of martial law does not authorize gen- eral military license, or place the lives, liberty, or property of the citizens of the States under the unlimited control of every holder of a military commission." Despan v. Olney, 1 Cur- tis, 308. And see Luther v. Borden, 7 Howard, 14; G. O. 100, War Department, 1863, Sec. I, § 4. ^ In Clark v. Dick, 1 Dillon, 8, the court, referring to the placing of the city of St. Louis under martial law by the De- partment Commander, Ma]. Gen. Ualleck, (by G. O. 34, Dept. of the Missouri, 1861,) observes: '^Tliat this officer repre- sented the President who is commander-in-chief of the army, and was vested with all the authority as such military com- mander that belonged to the President, cannot be doubted." MARTIAL LAW. 317 law in tlie State of Kentucky, held^ (December, 1864,) to be competent for the general commanding the military district of Kentuck}^, if in his judgment the effective maintenance of martial law and the accomplishment of the ends proposed b^' its declaration required it, to restrain, by such means as in his discretion might be deemed needful, the prosecution of suits instituted against United States officers for acts done in the line of their duty, and having the effect, (indicated in the proclamation,) of impeding ''military operations," and of embarrassing ''the constituted authorities of the government of the United States." X, 669. 4. The occasion for the exercise of martial law properly ceases when the emergency has passed which made it neces- sary or expedient.^ So, — the commander of the Middle Mili- tary Department having, in view of the presence in the department of an army of the enemy, proclaimed, by order of June 30, 1863, a state of martial law in Baltimore city tind county and the counties of the western shore of Maryland, with the assurance expressed that such status should not ex- tend beyond the necessities of the occasion, — held^ (June, 1865,) that, as the exigency had long ceased to exist, the order, though never in terms revoked, should properly be considered as no longer operative. XII, 422. 5. The President's proclamation of Sept. 24, 1862, subjected to martial law and trial by militarj^ courts throughout the United States certain classes of x>eT^ons named, and sus- pended the privilege of the writ of habeas corpus as to all persons imprisoned under military sentence or by miUtary authority "during the rebellion." The further executive proclamation of Sept. 15, 1863, (issued pursuant to the Act of March 3, 1863, — see Habeas Corpus § 1,) suspended the privilege of the writ throughout the United States as to cer- tain classes of persons enumerated. The further proclamation of Dec. 1, 1865, in revoking generally the suspension declared by the proclamation of Sept. 15, 1863, excepted from such revocation, and left the suspension in force in, certain States and Territories specified and "i?i the District of Columbia.''^ The proclamation of April 2, 1866, (which, in one of its pre- ambles, declared that martial law and the suspension of the ^In re Egan, 5 Blatch. 319, 322; In the matter of Martin, 45 Barb. 145 j Hough, (Precedents,) oSo. 318 jVIEDICAL cadet — MEDICAL OFFICER. writ of habeas corpus were "dangerous to i:)ublic liberty^ in- compatible with the individual rights of the citizen," &c., and "ought not to be sanctioned or allowed except in cases of actual necessity/' &c.,) announced the rebellion as at an end throughout the United States, the State of Texas only ex- cepted. Held, in view of these i^roclamations, that, so far as concerned the exercise of military authority and jurisdiction, martial law might be considered to have existed in the Dis- trict of Columbia, from Sept. 24, 1862, as to the classes of persons indicated in the i^roclamation of that date, and /rom Sept. 15, 18G3, as to other classes of persons indicated in the proclamation of that date — to Ai)ril 2, 1866, the date of the proclamation issued at the end of the war.^ XXXY, 177. See MILITAEY COMMISSION, II § 1, 6, 8. MEDICAL CADET. See pay AND ALLOWANCES $ 14. MEDICAL OFFICER. 1. The medical officer of a command is responsible, (within reasonable limits,) for the health of the men composing it. Where, in the course of the proper and regular performance of his function, he excuses men from duty on account of sick- ness or disability, the commanding officer should almost as a matter of course accei)t his action as conclusive and final. If he refuses to do so and orders on duty a soldier thus excused, he assumes the responsibility of any material injury that may thus result to the individual or the service, and, if injury re- sults in fact, is amenable to trial for the military offence involved. XLIII, 250. 2. A medical officer of a post or station is legally eligible for service on courts martial, either as a member or a judge advocate, (see Seventy Fifth Article § 1 -, Judge Advo- cate § 25) and in small commands, surgeons and assistant ^ "It would seem to be conceded that the power to suspend this writ," (the writ of habeas corpus,) "and that of proclaim- ing martial law, include one another. *• * * The right to exercise one power implies the right to exercise the other." 9 Am. Law Eeg. 507-8. And see ±Ja; parte Field, 5 Blatch. 82. MEMBER OF COURT. 319 surgeons are not unfrequently detailed upon sucli service. In view, however, of the fact that a medical ofQcer of a post, with a hospital or sick men under his charge, is practically con- tinuously ''on duty," (see Thirty Eighth Article § 6,) beside requiring a considerable time for study, it is deemed to be in general i)rejudicial to the interests of the service to detail such officers ui)on courts martial where it can well be avoided. XXII, 530; XXIII, 522. 3. Par. 1309, Army Eegulations, authorizes the employ- ment, for officers or soldiers, of the services of a private physician, at the expense of the United States, "when the attendance of a medical officer cannot be had." Where the medical officer of a post declined to attempt a difficult opera- tion required to be performed upon an officer, and recom- mended that an expert be employed, and a private i^hysician was so employed accordingly, advised that the case was sub- stantially within the provision of the Eegulations, and that the reasonable account of such x)hysician would properly be paid ''by the medical bureau." XXIX, 23. See sixty FIRST ARTICLE ^ 5. SIXTY SECOND ARTICLE ^ 6. ACTING ASSISTANT OR CONTRACT SURGEON. ASSISTANT SURGEON. MEMBER OF COURT. 1. Officers detailed and serving as members of a general court martial are not in general properly ordered to perform other duties while the court remains in session or not ad- journed 5 and they are not to be considered as any more sub- ject to such orders now that they are no longer allowed a special compensation for their services than they were for- merly.^ In an emergency indeed arising out of a state of war, or other public exigency, additional service may be imposed upon such officers: in a case of this kind, however, their serv- ice on the court would, preferably, be temporarily suspended. Members of inferior courts martial are not unfrequently re- quired to perform additional duty because of the limited num- ^ The extra allowance, made payable to members and judge advocates of courts-martial and courts of inquiry, by §§ 1137 and 1138, Army Eegulations, was discontinued bv the Act of July 15, 1870, s. 21. See XIII Opins. of Attys. Gen. 526. 320 MEMBER OF COURT. ber of officers at the post. Par. 901 of the Army Eegulations, makiDg liable to other duty the members of a court martial when the court has adjourned for so long an interval as three days, applies only to such members as are a part of the com- mand of the post, &c., at which the court has been assembled. This paragraph is not mandatory but declaratory merely, and the liability created may be enforced or not by the commander according as the interests of the service may require. Of course officers not connected with the post, &c., command can be put on other duty only by the order of the convening au- thority, or his successor or superior. VI, 53; XXVI, 605; XXvill, 278; XXXV, 337. 2. A member of a court martial, though, strictly, answer- able only to the convening authority for a neglect to be pres- ent at a session of the court, will properly, when i)revented from attending, communicate the cause of his absence to the president or judge advocate, so that the same may be entered in the proceedings. Where a member, on reappearing after an absence from a session, fails to offer any explanation of such absence, it will be proper for the president of the court to ask of him such statement as to the cause of his absence as he may think proper to make. XXX, 315. It need scarcely be added that the absence of a member does not affect the legality of the proceedings, provided a quorum of members remain.^ [See Seventy Fifth Article § 3.] 3. It does not invalidate the proceedings of a court martial that a member who has been present during a portion of the trial, and has then absented himself during a portion, has sub- sequently resumed his seat on the court and taken i)art in the trial and judgment. Xor is the legal validity of the proceed- ings affected by the adding of a neiv member to the court pending the trial. In either case, however, the testimony which has been introduced and the material x>i'oceedings which have been had while the new or absent member was not present should be communicated to him before he enters, or reenters, upon his duties as a member. Such was the ruling of the Secretary of War on Genl. Hull's trial,^ and this ^ See VII Opins. of Attys. Gen. 101. ' ^ See the reply dated March 7, 1814, of the Secretary of War, Hon. John Armstrong, to the communication of the " acting special judge advocate," Hon. Martin Van Buren, submitting questions for the court. (Forbes' Trial of Hull, MEMBER OF COURT. 321 l^recedeut was followed in repeated, tliougb. not frequent, cases during the late war. For a member, however, who has been absent during a substantial part of a trial to return and take part in a conviction and sentence, is certainly a marked irregularity, and one which may well induce a disap- proval of the findings and sentence in a case where there is reason to believe that the accused may have sufi'ered mate- rial disadvantage from the member's action. Yll, 128, 411, 467 J YIII, 602 ; XXYII, 584. It is of course to be under- stood that a member cannot legally resume his seat where, by his absenting himself, the court has been reduced below five members. XXV, 640. [See Seventy Fiftu Article § 3.] To add a new member to a military court after any ma- terial part of the trial has been gone through with, must always be a most undesirable measure, and one not to be resorted to except in an exceptional case and to prevent a failure of justice. Adding a member after all the testimony has been introduced, and nothing remains except the finding and sentence, is believed to be without precedent. XLI, 525. 4. Where, in the course of a trial by court-martial, a mem- ber of the court is served with an executive order in due form dismissing or discharging him from the military service, or an official communication notifying him of the acceptance of his resignation, he becomes thereupon sei)arated from the army and can no longer act upon the court : he should therefore at once withdraw therefrom, and the fact of his withdrawal, explained by a copy of the order, be entered ujion the record. And the proceeding should be similar where a member is served with an order of the President placing him upon the retired list ; retired officers not being legally' competent to sit upon courts-martial. XI, 203. But the receipt by a mem- ber, during the proceedings of the court, of an appointment to a higher rank, or of other official notice of his promotion, can affect in no manner his competenc;^ to act upon the court. Appendix, pp. 28-20.) It was indeed held by Attorney Gen- eral Berrien, (II Opins. 414,) that a member of a court mar- tial who has absented himself during the taldug of testimony is disqualified to take i^art in the sentence. Attorney Gen- eral Cushing, however, held in a later opinion, (YII Opins. 08,) that whether the absent meiiiber should resume his seat and act upon his return '' must depend upon his own views of projniety.'' 21 D 322 MEMBER OF COURT. The fact of the promotion should indeed be noted in the record and the officer be thereafter designated by his new rank. YI, 558. Where the term of service of a member as an officer of volunteers expired pending a trial by the court, held that the member was not thereupon disqualified, but could legally continue to act upon the court till actually dis- charged or mustered out of the service.^ XV, 111. 5. While it is in general undesirable that a member of a military court should testify as a witness at a trial had be- fore such court, unless perhaps his testimony relates to char- acter merely, yet the fact that he is called upon to testify, while it does not affect the validity of the proceedings,^ does not oi^erate to debar the member himself from the exercise of any of the duties or rights incident to his membership. He remains entitled to take part in all deliberations, including indeed those had in regard to the admissibility of questions put to himself or of his answers to questions : he will nat- urally, however, in general refrain from expressing himself upon points arising in connection with his own evidence. XXYI, 216. See seventy FIFTH ARTICLE § 4, 5, 8. SEVENTY NINTH ARTICLE § 1. EIGHTY FOURTH ARTICLE § 1-4. EIGHTY SIXTH ARTICLE § 1, note. EIGHTY EIGHTH ARTICLE. ONE HUNDRED AND NINETEENTH ARTICLE $ 2, and note. ARREST, I § 6. COURT MARTIAL, I $ 15, 16. JUDGE ADVOCATE $ 5. PRESIDING OFFICER OF THE COURT $ 1-5. PROTEST. RECOMMENDATION. REVISION $ 6, 7. SENTENCE AND PUNISHMENT $ 1, 2. WITNESS $ 5. ' In a case in G. C. M. O. 104, Dept. of Kentucky, 1865, the proceedings were, properly,, disapproved because a member had remained and acted upon the trial after receiving official notice of his muster-out. 2 Compare Peoi)le v. Dohring, 59 X. York, 374. MILEAOE. 323 MILEAGE. (TJnder sec. 1273, Eev. Sts. as amended by the Act of July 24, 1876, c. 226, s. 2.) 1. An officer on leave of absence, whose leave, before being completed, is terminated by an order of competent authority requiring- him to return at once to his station, is entitled to mileage for the return journey, upon duly com^dying with such order. XXXYI, 420. 2. Par. 1112 of the Army Eegulations, (in regard to the return of officers on leave of absence,) has been superseded by the subsequent legislation contained in sec. 1273, Rev. Sts., (as amended by the Act of July 24, 1876,) and is no longer operative. XXXYIII, 388. 3. By the Act of July 24, 1876, s. 2, "any officer-' who " travels under orders " is entitled to a mileage allowance of " eight cents a mile for each mile actually travelled " by him under his order, i^rovided he " is not furnished transporta- tion " in any of the modes specified in the Act. So, in a case of an officer who, while on leave of absence, was by an order irom the Headquarters of the Army, placed on special duty in a bureau of the AYar Department, and, Imving been retained on such duty for a period extending by two weeks beyond the term of his leave, was, by a second order from the same source, formally relieved from such duty and ordered to re- turn to his station, and thereui^on duly returned accord- ingly, — held that, in so returning, he was travelling " under orders " in the sense of the Act, and was therefore entitled to mileage for the journey from AYashington to such station.^ XXXIX, 359. 4. Where an officer was required by a comx^etent order to travel from his proj^er station to another post, to attend his own trial by court martial, and transi)ortation was not fur- nished him j-^held that he was entitled to mileage for such journey, the purpose for which the same was ordered to be made not being material. XXXIY, 339. 5. An officer was duly ordered to proceed, in command of a guard for insane soldiers, from his station in California to ^Held otherwise, however, bv the Court of Claims, in Barr D. United States, 14 Ct. CI. 272. 324 MILITARY ACADEMY — MILITARY COMMISSION. Washington, the order directing in effect that transportation be furnished both ways for him and his command. At Wash- ington, while the guard — its service being performed — re- turned at once according to the original order, the officer was specially authorized, by an order issued from the Headquarters of the Army, to delay his return for thirty days. Eeturning at the end of this time to California, an order was issued by the department commander in which the modification of his duty and action under the second order was recognized, and he was declared to be entitled to mileage for the return jour- ney and was thereuijon i^aid the same accordingly. Held that there was no legal objection to the last order, and that the amount of the mileage allowed thereby could not prop- erly or fairly be stopped at a subsequent date against the officer's pay. XLIII, 91. See leave OF ABSENCE $ 3. MILITARY ACADEMY. See cadet. SUSPENSION $ 12. PROFESSOR OF THE MILITARY ACADEMY. MILITARY— AMEIJABILITY OF TO THE CIVIL JURISDIC- TIOH. See fifty NINTH ARTICLE. CESSION OF JURISDICTION $ 5. CIVIL PROCESS ^ 4, 5. COURT MARTIAL, II § 12, and note. MILITARY COMMISSION, I— ORIGIN, CONSTITUTION, PROCEDURE, &c. 1. By a practice dating from 1847,^ and renewed and Jfirmly ^ See Maj. Gen. Scott's G. 0. 20, Hdqrs. of Army, Tampico, Feb. 19, 1847, republished, "with important additions," in G. O. 190 and 287 of the same year. And see the following Orders convening military commissions, issued by Gen. Scott: G.O. Hdqrs. of Army, 1847, Nos. 81, 83, 121, 124, 147, 171, 194, 215, 239, 267, 270, 273, 292, 334, 335, 380, 392; also No. •9 of 1848. Also the following issued by Gen. Taylor: G. O. IVnLITAKY CO^IMISSION. 325 established during the late war/ Military Commissions have become adopted as authorized tribunals in this country in time of war. Thej^ are simply criminal war-courts, resorted to for the reason that the jurisdiction of Courts Martial, creatures as they are of statute, is restricted by law, and cannot be extended to include certain classes of offences, (see Military Co^imission, II, § 1,) which in war would go un- punished in the absence of a provisional forum for the trial of the offenders. Their authority is derived from the Law of War,^ though in some cases their i)owers have been added to by statute.^ Their competency has been recognized not onlj- 60, lOG, 112, 121, of 1847 ; and the following issued by Gen. Wool : G. O. 140, 179, 216, 4G3, 476, 514, of 1847. In this connection, note also the institution by Gen. Scott of ''Councils of War" — summary courts for the xmnishment of certain violations of the laws of war — as exhibited in G. O., Hdqrs, of Army, Nos. 181, 184 and 372, of 1847, and Xos. 35 and 41, of 1848. ^ The first military commission of the war is believed to have been that convened by Maj. Gen. Fremont, by G. 0. 118, West- ern Department, St. Louis, Sept. 2, 1861. 2 See G. O. 100, War Dept., 1863, Sec. I, § 13 ; do. 1, Dept. of the Missouri, 1862 ; do. 20, Hdqrs. of Army, 1847 ; United States V. Eeiter, 13 Am. Law Eeg. 534; State v. Stillman, 7 Cold. 341; Hefferman i\ Porter, 6 do. 697. And see also Ol)inions of Attys. Gen. cited in note 4 on page 326. ^ See Act of March 3, 1863, c. 75, s. 30, declaring that, in time of war, «&c., murder, manslaughter, robbery, larceny, and other specified crimes, when coumiitted by i)ersons in the military service, shall be punishable by sentence of court martial "or military commission," &c. — an enactment re- peated, as to courts martial, in the 58th Article of War : Also, s. 38 of the same Act, (repeated in Sec. 1343, Kev. Sts.,) mak- ing spies triable by general court martial " or military com- mission" and punishable with death. See, further, Act of July 2, 1864, c. 215, s. l,by which commanders of departments and commanding generals in the held were authorized to carry into execution sentences imposed b^' military commis- sion upon guerrillas : Also Act of July 4, 1864, c. 253, s. 6 and r, (not now in force,) making inspectors in the quarter- master department triable and punishable by sentence ot court- martial or " military commission," for fraud or neglect of duty, as also other emj^loyees and oflQcers of that department for accepting bribes from contractors, &c. : Also the Eecoustruc- tion Act of March 2, 1867, c. 153, s. 3, by which commanders of Military Districts were authorized to convene military com- missions for the trial of certain offenders. [See Militaey Commission, II § 10.] 3>2G ^ MILITARY COIMMISSION. in Acts of Congress 1 but in executive proclamations," in rulings of the courts,' and in opinions of the Attorneys Gen- eral.^ During the rebellion they were employed in several thousand cases -, more recently they were resorted to under the ''Eeconstruction" Act of 1867;' and still later one of these courts has been convened for the trial of Indians as oifenders against the laws of war.*^ 2. Except in so far as to invest military commissions in a few cases with a special jurisdiction and power of punish- ment,^ the statute law has failed to define their authority, nor has it made provision in regard to their constitution, comi^osition or procedure. In consequence, the rules which api)ly in these particulars to general courts -martial have almost uniformly been applied to military commissions. They have ordinarily been convened by the same officers as are authorized by the Articles of War to convene such courts : the accusations investigated by them have been presented in charges and specifications similar in form to those entertained by general courts : their proceedings have been similar and similarly recorded ; and their sentences have been similarly Ijassed upon and executed. I, 453, 465 ; II, 27, 83, 563 ; III, ^ See the Acts cited in last note, together with Sees. 11 99, 1343 and 1344, Eev. Sts., as also the recent ai^propriation Acts of July 24, 1876, Nov. 21, 1877, June 18, 1878, June 23, 1879, and May 4, 1880, in which, among other items for the Pay Department, appropriation is made ' for compensation for citizen clerks and witnesses attending upon courts martial and military commissions.'' -See 'the proclamations of Sept. 24, 1862, and April 2, 1866. ^ Ex parte Vallandigham, 1 Wallace, 243 ; In the matter of Martin, 45 Barb. 146; Ex parte Bright, 1 Utah, 145; State??. Stillman, 7 Cold. 341. In the last case the court say: ''A military commission is a tribunal now (1870) as well known and recognized in the laws of the Uiuted States as a court martial." It has been "recognized by the executive, legisla- tive and judicial departments of the government of the United States." ' See y Opins. of Attys. Gen. 55; XI Id. 297 ; XII Id. 332; XIII Id. 59 ; XIV Id. 249. ^ See Military Commission, II § 9. •^ The case of the Modoc Indians tried by military commis- sion in July 1873. (G. C. M. O. 32, War Dept. 1873.) See XIV Opins. of Attys. Gen. 249. ^ See statutes cited in note 3 on p. 325. MILITARY C03OIISSI0N. 327 428', Y, 95; VII, o^yG, GGl ; YIII, 111; XII, 394; XXIX, 39. Their composition lias also been the same, except that the mi7iimiim of members has been fixed by usage at three. XV, 149. They have generally also been supplied with a judge advocate as a prosecuting officer. A military commission constituted with less than three members, or which proceeded to trial with less than three members, or which was not at- tended by a judge advocate, would be contrary to precedent. IX, 591; XI, 479; XIII, 28G; XV, 204. In the absence, however, of any statutory provision on the subject, a com- mission which departed from the general usage in any of these respects would not necessarily be held to be an illegal tribunal. 3. In view of the analogy prevailing and sanctioned be- tween these bodies and courts-martial, it has been held by the Judge Advocate General that military commissions would properly be sworn like general courts-martial, (XI, 111 ;) that the right of challenging their members should be afforded to the accused ; that two-thirds of their members should concur in death sentences, (XXIII, 650;) and that the two-years lim- itation would properly be applied to prosecutions before them. IX, 657. Xone of these feature, however, are made essential by statute. See court ilARTIAL, I $ 24. MILITARY COMMISSION, II— JURISDICTION. 1. The jurisdiction of the Military Commission is derived primarily and mainly from the Law of War : that special au- thority has in some cases been devolved upon it by express legislation has already been noticed. Military commissions are authorized by the laws of war to exercise jurisdiction over two classes of offences, committed, whether by civilians^ or military persons, either (1) in the enemy's country during its occux>ation by our armies and while it remains under mil- itary government, or (2) in a locality, not within the enemy's country or necessarily within the theatre of war, in which ^ The General Orders issued during the late war contain nearl^^ one hundred and fifty cases of women tried by military commissions. 328 MILITARY COMMISSION. martial law has been establislied by competent autliority.' The two classes of offences are — I. Violations of the Laws of War : II. Civil Crimes, which, becanse the civil authority is superseded by the military-, and the civil courts are closed or their functions suspended, cannot be taken cognizance of by the ordinary tribunals. In other words, the Military Com- mission, besides exercising under the laws of war, a jurisdic- tion of offences peculiar to war, may act also as a substitute, for the time, for the regular criminal judicature of the State or district. II, 242 ; III, 404 j YII, 20, 418 j YIII, 153, 529 ; XX, 502. 2. A military commission, whether exercising a jurisdiction strictly under the laws of war, or as a substitute in time of war for the local criminal courts, may take cognizance of offences committed, during the war, before the initiation of the military government or martial law, but not then brought to trial. XIX, 390. [But see Spy § 6.] So held that an enemy, taken prisoner of war, was triable by a military commission for a violation of the laws of war committed before his cap- ture. YIII, 529. But when an officer or soldier of the enemy's army is, upon capture, charged before a military commission with a violation of the laws of war, the j)roof should of course be clear that the act committed was as charged, i. e. was not a legitimate act of war. 3. During the late war a very great number and variety of offences against the laws and usages of war, — charged either, generally, as " Yiolation of the laws of war," or, specifically, by their particular names or descriptions, — were passed upon and punished by military commissions. Of these some of the principal, (committed mostly by civilians,) were as follows : Unauthorized trading or commercial intercourse with the enemy — Unauthorized correspondence with the enemy — Blockade running — Mail carrying across the lines — Drawing a bill of exchange upon an enemy, or by an enemy upon a party in a northern city^ — Dealing in, negotiating, or utter- ^ See Martial Law § 1. And note, in this connection, Chief Justice Chase's description of the jurisdiction exercised under Military Government and Martial Law, as distin- guished from that conferred by the Military Law x>roper — in IJx parte Milligan, 4 Wallace, 142. ' See Britton v. Butler, 9 Blatch. 457 ; Williams v. Mobile Sav. Bk., 2 Woods, 501 ; Woods v. Wilder, 43 X. York, 104^ Lacy V. fougarman, 12 Heisk. 354. MILITARY C0M3IISSI0N. 329 iug confederate securities or inouey ' — Manufacturing arms, &c., for the enemj- — Furnishing to an enemy articles contra- band of war — Dealing in such articles in violation of military orders — Publicly expressing hostility to the U. S. govern- ment or s^'mpathy with the enemy — Coming within the lines of the army from the enemy without authority — Violating a flag of truce — Violation of an oath of allegiance, or of an amnesty oath — Violation of x)arole by a prisoner of war — Aiding iirisoner of war to escape — Unwarranted treatment of federal prisoners of war — Burning, destroying, or obstruct- ing railroads, bridges, steamboats, «&;c., used in military oi)er- ations — Cutting telegraph wires between military posts — Eecruiting for the enemy within the federal lines — Engaging in " guerrilla" or partisan warfare — Assisting federal soldiers to desert — Resisting or obstructing an enrolment or draft — Impeding enlistments — Violating orders in regard to selling liquor to soldiers or other military orders of police in a dis- trict under military government — Attempt without success to aid the enemy by transporting to him articles contraband of war — Consi^iracy by two or more to violate the laws of war by destroying life or property in aid of the enemy. II, 144; ill, 401, 589, 619; IV, 329; V, 30, 590; VI, 20; VII, 413 ; VIII, 529 ; IX, 149, 204, 225, 481, 524, 535 ; X, 567 ; XI, 473, 513 ; XIII, 125, 675 ; XVI, 446 ; XXI, 101, 280, &c. 4. Of the ordinary crimes taken cogfiizance of under similar circumstances by these tribunals, the most frequent were homicides, and, and after these, robbery, aggravated assault and battery, larceny, receiving stolen property, rai)e, arson, burglary, riot, breach of the peace, attem^jt to bribe public officers, embezzlement and misapi)roi)riation of public money or property, defrauding or attempting to defraud the United States, &c. VII, 418; VIII, 194, 529; XIV, 40; XV, 281; XVIII, 525; XIX, 319, 390; XXI 225; XXII, 116; XXVII, 423, 522 ; XXIX, 157, 233 ; XXX, 380, 638, &c. 5. Xot unfrequently the crime, as charged and found, was a combination of the two species of offences above indicated. As in the case of the alleged killing, by shooting or unwar- rantably harsh treatment, of officers or soldiers, after they had surrendered, or while they were held in confinement as prisoners of war, of which persons were in several cases dur- ^ See Horn v. Lockhart, 17 Wallace, 580. 330 MILITARY COMMISSION. ing the war convicted by military commissions under the charge of " Murder, in violation of the laws of war."^ VII, 360; XYIT, 455; XIX, 221; XX, G50. A more recent illus- tration was the principal offence of the Modoc Indians, (tried by military commission in July, 1873,) which, as a treacherous ■killing of an enemy during a truce, was charged as " Murder in violation of the laws of war." ^ 6. From the jurisdiction, however, of military commissions, under the circumstances above indicated, are properly ex- cepted such offences as are within the legal cognizance of the ordinary criminal courts, when, upon the establishing of mili- tary giovernment or of the status of martial law, such courts have been, by express designation or in fact, left in full oper- ation and possession of their usual powers. Thus, during the considerable period of the war pending which the District of Columbia was practically placed under a mild form of mar- tial law, (see Martial Law § 5,) ordinary criminal offences committed therein by civilians or military persons, of which there was not exj^ressly vested by statute, (as by the Act of Mch. 3, 1863, c. 75, s. 30,) a jurisdiction in military courts concurrent with that of the civil tribunals, were in general allowed to be taken cognizance of by the latter, the same being at no time seriously interrupted in the exercise of their judicial functions. 7. So, in a State or district where military government or martial law has not prevailed, or, having prevailed for a time, has ceased to be exercised, and the regular criminal courts are open and in operation, a military commission, (in the absence certainly of special authority from Congress,) cannot be empowered to assume jurisdiction of a public offence, although the nation be still involved in war.^ IX, 657 ; XII, 422; XIV, 382; XVI, 298; XXX, 34. A /or/ioH, where, at the date of the offence, there was, properly, no state of war in which the nation was involved with an enem^'. Thus lield., (January, 1875,) that a military commission could not legally ^ See G, C. M. O. 607, War Dept. 1865; do. 153, Id. 1866. '-'G. C. M. O. 32, Wjir Dept. 1873. =^See the leading case of Ex parte Milligan, 4 AVallace, 1; also Milhgan v. Hovev, 3 Bissell, 13; In re Muri)liv, Wool- worth, 143; Devlin v. United States, 12 Ct. CI. 271; XII Opins. of Attys. Gen. 128. MILITARY COlMiMISSION. 331 be convened for the trial of Indians, for violations of tbe laws of war, on account of thefts, robberies, and murders com- mitted by them upon incursions made into the State of Texas, "where said Indians, (unlike the Modocs — see § 5 supra^) were mere raiders, with whose tribe, as such, the United States was not engaged in war, and whose crimes, therefore, were not commiitQii flagrante hello} XXXVI, 221. 8. Where the State was not under martial law or military government, the fact that the ofi'ence was committed by a I)risoner of war at a prison camp (within the State) for the confinement of prisoners of war, and guarded by fed- eral troops, was held insuflicient to give a military com- mission jurisdiction of the case. XV, 358. But held that the mere fact of the appointing by the Executive of a "provis- ional governor" for an insurrectionary State, in June, 18G5, prior to the date of the proclamation, (of April 2, 18G0,) declar- ing the war at an end in that State, and while the territorj^ of the same still remained in military occupation, did not operate to oust military commissions of jurisdiction of crim- inal oftences committed within the State.- XVI, 415. 9. It is a further restriction upon the jurisdiction of the Military Commission that, except where it may be invested by statute with a jurisdiction concurrent with that of courts martial, (as by sees. 30 and 38 of the Act of March 3, 18G3,) its authority cannot be extended to the trial of oftences which are, specifically or in general terms, made cognizable and punishable by courts-martial, by the articles of war or other statute. In repeated instances during the late war the pro- ceedings of military commissions, in cases in which these tribunals had improperly assumed jurisdiction of offences legally triable by courts martial only, were recommended by ^ As to the nature of the hostility which may properly bring Indians " within the description of public enemies," compare XIII Opins. of Attys. Gen. 471. That a detached band of marauding Indians was not an "enemy" in the sense of the Act of Mch. 3, 1849, (Sec. 3483, Eev. Sfs.,) providing for the making good of danuige sustained by the capture or destruc- tion of certain property "by an enemy" — was held by the Sui)reme Court in Stuart i\ United States, 18 Wallace, 84. '^ See Belding v. State, 25 Ark. 315. And compare XIII Opins. of Attys. Gen. G5-Gj Coleman v. Tennessee, 7 Otto, 51G. 332 MILITARY C03I1MISSI0N. the Judge Advocate General to be disapproved. 1, 384, 4G8, 482 ; VII, 440, 486 j IX, 236 ; XV, 373 ; XVI, 73 ; XIX, 63. 10. As to the si)ecial statutory jurisdiction with which the Military Commission has, in certain cases, been invested, the Acts of Congress by which this has been conferred and defined have already been cited. Of these, the provision of the act of March 3, 1863, by which a jurisdiction, concurrent with that of the court martial, is given to this tribunal in cases of spies ^ is the only one now in force, being embodied in Sec. 1343, Eev. Sts. Under the latest of these Acts, the " Eeconstruction " Act of March 3, 1867, in sec. 3 of which the commanders of the military districts constituted thereby were emi)owered, in their discretion, '' to organize military commissions," in lieu of the "local civil tribunals," for the trial and punishment of " all disturbers of the public peace and criminals," ^ — it was lield by the Judge Advocate General as follows : That the military commissions convened under the Act would properly be governed, as to their form of i^rocedure, by the rules and forms governing military commissions under the laws of war, (see Military Commission, I, § 2,) while, as to their jurisdiction and power of punishment, they would in general properly be regulated by the local statutes govern- ing the courts of which they were substitutes. XXIX, 406 : That, being substitutes for the State criminal courts, they were authorized to take cognizance of offences committed, (but not brought to trial,) before the date of the Act, equally as of those committed after such date. XXV, 424 ; XXVI, 234: That cases of soldiers offending against the criminal law, whose offences were not within the jurisdiction of a court martial, might legally be brought to trial before military commissions convened under the Act. XXVI, 487, 543: That commissions ordered under this Act, beiug in lieu of the State tribunals, could not assume to take cognizance of a case Avithin the jurisdiction of a court of the United States in operation in the district. XXVIII, 612: That sentences duly adjudged by comnn'ssions convened ^ The constitutionality of this Act and the legality of the institution under it of military commissions are affirmed by Atty. Gen. Hoar in XIII Opins. 59-67. MILITARY co:mmission. 333 unde-i^ this statute, and which had been duly and finally aj)- proved by the comi^etent authority, (see sec. 4 of the statute,) might legally be executed prior to the passage of the Act ad- mitting to representation in Congress the State in which the offence was committed; but that such sentences, not carried into effect, (or of which the execution had not been entered upon,) at that date, could not thereafter legally be enforced.^ And held generally, that all proceedings of military commis- sions which remained i^ending or incomi^lete at such date became thereupon terminated. XXYII, 89, 90, 93; XXVIII, 51; XXIX, 620; XXX, 181. 31. The jurisdiction of a military commission convened under the law of war may be exercised up to the date of a peace agreed upon between the hostile parties or the declara- tion by the comj^etent authority of the termination of the war status.' XX, 484. 12. A military commission, convened for the trial of offences under the law of war, has no jurisdiction of civil suits or pro- ceedings, either based upon contract or brought to recover damages on account of private transactions or personal inju- ries.^ Ill, 190; V, 86', IX, 205; XI, 657. [As to the civil jurisdiction of special courts and commissions instituted dur- ing the late war, see Law of War § 12, note.] MILITARY COMMISSION, III— SENTENCE. Except in a case of a spy, whose sentence must be death, (Sec. 1343, Eev. Sts.,) the discretion of the Military Commis- sion in the imi)osition of sentence is not in terms restricted or defined by the existing law. VII, 62. ' The sentence, how- ever, should award a criminal punishment: a judgment of debf or damages would be irregular and i^roperly disapproved. Ill, 190. So a military commission cannot properly impose a ^ Comi)are United States v. Tynen, 11 Wallace, 88, where it is held that — "There can be no legal conviction, nor any valid judgment i^ronounced upon conviction, unless the law creating the offence be at the time in existence." And to a similar effect see United States v. Finlay, 1 Ab. U. S. R. 364. 2 See XIV Opins. of Attys. Gen. 250, where this principle is api)lied to an Indian war. See also V Opins. o8. 3 See State v. Stillman, 7 Cold. 341; G. O. 1, Dept. of the Missouri, 1862. 334 MILITARY GOVERNMENT — MILITARY OFFENCE. punishment reserved by law for courts martial — as dismissal or suspension in a case of an officer, or dishonorable discharge in a case of an enlisted man. X, 356. Where a military com- mission is acting practically as a substitute for a State crim- inal court, it should, in general, in determining the proper measure of punishment to be inflicted, take into consideration the State statute law, if any, prescribing the penalty or pen- alties for the offence.^ XXIX, 406. MILITARY GOVERNMENT. See law OF WAR $ 1. MARTIAL LAW § 1. MILITARY COMMISSION, II $ 2, and note 2. MILITARY OFFENCE. Military offences proper are simply violations of the laws, orders, or rules of discipline governing the military state. Such ofl'ences are neither "felonies" nor "misdemeanors" in the legal sense of those terms, nor can an ofl&cer or soldier, convicted of an offence of this class, properly be subjected to any of the consequences attaching to a felony. Thus held that a soldier convicted by a court martial, assembled within the State of Kansas, of the offence of swearing falsely as a witness before a previous military court, could not be sub- iected to any disability attaching to a conviction of perjury as a felony by the laws of that State; his offence, as found, not being a civil crime but simply "conduct to the prejudice ^Except where the death sentence was i)ronounced, the punishment adjudged by military commissions during the late war was, in the great majority of cases, an imprisonment for a certain term or ' till the end of the war.' Fines were not rarely imposed, and a sending beyond the lines of the U. S. forces was not infrequent. A confiscation of property was also sometimes adjudged. In many instances, in lieu of any punishment, it was directed or recommended by the commis- sion that the accused be required to take an oath of allegiance, or give a i)arole, and in some cases also to give a bond for future loyal behavior. MILITARY PRISOIs\ 335 of good order and military discipline." ^ YIII, 332 j XXXVIII, 219. [See Perjury § 1.] MILITARY PRISON. 1. The proceeds of sales of articles manufactured by the prisoners at the Military Prison are clearly public funds, and, in the absence of any statutory provision in regard to their dis- positiouj — Sec. 1351, Eev. Sts. only requiring that they shall be *' accounted for" as received by the commandant, — can not le- gally be expended in repairing or improving the i)rison build- ings, or otherwise, without authority of Congress. XLII, 24. 2. Held that, under the general authority vested in the Secretary of War by Sec. 1351, Eev. Sts., to direct as to the disj)osition of the articles manufactured by the convicts at the Military Prison at Leavenworth, and in the absence of anything in Sec. 3710, Eev. Sts., or elsewhere in the statute law relating to contracts, i)recluding such action, — the Secre- tary was empowered to order that the shoes made by the prisoners should be turned over to the quartermaster depart- ment for issue to the army. XLI, 427. 3. Held that the provisions of Sees. 1345 and 134G, in respect to the organizing, &c. by the Secretary of War, of the Board of Government of the Military Prison, did not simply vest a discretion in the Secretary to do or not to do, in whole or in part, as therein i)rescribed, but, imposing as they did a public duty, should be construed as mandatory uj^on him, (see Stat- utes — CONSTRUCTION OF § 3,) and thus as properly requiring him to maintain such Board with the members, both military and civil, as specified in the former section, and with it to visit the jirison as directed in Sec. 134G. XLI, 675. See army REGULATIONS § 2. COURT MARTIAL, II 8, 9, and notes. IMPRISONMENT § 2, 8, 18, note. SUBSISTENCE STORES $ 2. ^The term "convicted of a felony," employed in Sec. 1118, Eev. Sts., (as amended by the Act of Feb. 27, 1877,) forbid- ding the enlistment of i)ersons " convicted of a felony," refers clearly to a conviction by a criminal court of the United States, or of a State or Territory, (or of the District of Columbia,) of an offence made a felony by the laws of the same, or by the common law as recognized therein. 336 MILITARY EESERYATION. MILITARY RESERVATION.! 1. A military reservation, being simply territory of the ^Tlie Constitution, (Art. lY, Sec. 3, § 2,) Las vested in Con- gress the exclusive power ^'to dispose of and make all needful rules and regulations respecting the territory ^''^ (held in U. S. V. Gratiot, 14 Peters, 537, to mean "lands,") ''or other Y>rop- erty belonging to the United States.'^ As a consequence per- haps of the indefiniteness of this grant, (see VII Opins. of Attys. Gen. 574,) no general enactment providing for the setting apart of land for military reservations has ever been made by Congress. In a few cases, indeed, a 8])ecial authority to establish a military reserve lias been conferred upon the President by statute, but the great majority of the military reservations heretofore located or now existing have been made by the President without any such specific authority whatever. But though no general authority has been directly given by Congress for the reserving of lands for military purposes, an authority for the purpose has been deemed to exist, and this authority is found in the usage of the executive department of the goveinment, as indirectly sanctioned by Congress in repeated i^re-emption Acts, Acts relating to the survey of the public domain, appropriation Acts, &c.,in which lands reserved for military purposes by the President have been in general terms excepted from sale, exempted from entry, &c., or si)ecial provision has been made for the cost of improvements to be erected upon the same. In Grisar v. McDonald, G Wallace, 381, the U. S. Supreme Court, by Field J., observes: — "From an early period in the history of the government, it has 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." Further — "The autliority of the President in this respect is recognized in numerous Acts of Congress." The court then cites several statutes as containing this recognition, including the pie- emption Acts of May 29, 1830, and Sept. 4, 1841, and adds — "The action of the President in the making the (military) reservations," (the title to which was at issue in the i^articular case,) "was indirectly approved by the legislation of Congress in api)ropriating moneys for the construction of fortifications and other public works upon theju." And see XIL Opins. of Attys. Gen. 381 j XIV Id. 182 ; Wilcox v. Jackson, 13 Peters, 512 ; United States v. Hare, 4 Sawyer, G53. It is moreover to be noted that the provision of the Act of 1841, referred to by the Suiueme Court, has been incorporated as a general enactment in the Eevised Statutes, in the Chap- ter, (Ch. 4 of Title XXXII,) on Pre-emptionsj Sec. 2258 MILITARY EESERVATIOX. 337 United States Tvitlidrawn from sale, pre-emption, &c.,^ the mere fact of the establishing of such a reservation cannot affect the poAver of the State or Territorial authorities, (according as it may be located in a State or Territory,) to serve civil or criminal process therein, or to attach or levy upon personal property,^ except in so far of course as such service may be specially precluded or restricted, by law, as to military persons in general.^ Where indeed there has been a cession of exclusive jurisdiction over the land by the State to the United States, the question whether the State authorities may still serve i)rocess within the reservation on account of liabilities incurred or crimes committed outside of its limits, expressly excei)ting from the lands of the United States '^subject to the rights of i)re-emption" — ''lands included in any reservation by any treaty, law, or i)roclamation of the President for any purpose." [And see Sec. 2393, specilically excepting military reser^'ations from the operation of the laws authorizing the establishing of town-sites.J The "proclamation'^ of the President reserving lands for military purposes is usually in the form of a military General Order, issued by the Secretary of War, whose act in this, as in other administrative proceedings pertaining to the military administration, is in legal contemplation the act of the Presi- dent whom he represents. [See Secretary of War.] But no head of a department or executive official inferior to the President can, of his own authority', make a reservation of public lands. The i:>ower is vested only in Congress and the President. United States v. Hare, 4 Sawyer, 053, 009. [In this connection may be noted the ruling of Atty. Gen. Bates, (X Opins. 359,) in opposition to that of Justice McLean of the Supreme Court, (in United States v. The Eailroad Bridge Co., McLean, 517,) but apparently concurred in by Atty. Gen. WiUiams, (XIV Opins. 210,)— to the effect that where a tract of land of the United States has once been legally reserved for military purposes, the President is not empowered, in the absence of authority from Congress, to reUnqimh such reservation and restore the land reserved to tlie general body of the i)ublic lands.] ^See YII Opins. of Attys. Gen. 571-5; also XIY Id. 557. -!^ee opinion of Judge Advocate General published in G. O. 30, Hdqrs. of Army, 1878 j also Cession of Jurisdic- tion § 1. ^Asby Sec. 1237, Eev. Sts., exempting enlisted men from arrest for certain debts ; or by the operation of the provisions of the 59tli Article of War as to the form to be observed in making criminal arrests of military i)ersons. And see CiViL Process § 2, 3. 22 D 338 MILITARY RESERVATION. will depend upon the terms of the cession. XXXIX, 541. [See Civil Process § 4.] 2. Held that an Act of Congress granting a Railroad Com- pany a right of way through •' the public lands" of the United States, did not authorize it to enter and construct a track ui3on the soil of a military reservation, the same being no part of the ''public lands 'V ^^^^ that such entry was therefore a trespass. XXXIX, 146. 3. Land which has been set apart as a portion of an Indian reservation under a treaty can not be occui)ied as a military reserve ;2 nor can even a military post be maintained thereon, in derogation of the terms of the treaty or against the consent of the Interior Department. XXXVIII, 170. 4. Seld that the Act of March 3, 1875, c. 151, ''to protect ornamental and other trees on government reservations and on lands purchased by the United States," &c., which makes penal the unlawful cutting or injuring of such trees, was clearly not intended to, and did not, preclude the reasonable cutting of wood on military reservations, under the direction of the proper officer, for the supplying of the necessary fuel for the garrisons stationed thereon ; the authority to estab- lish a reservation, where in fact lawfully existing, being deemed to include an authority to efficiently maintain the same when established. XXXIX, 8. 5. Held that the right to the "free and open exploration and purchase" of mineral lands, accorded to citizens, «&c., by Sec. 2319, Rev. Sts., could not authorize an entry, for the pur- pose of i^rospecting for mines, upon a military reservation once dulj^ defined and established by the President j the min- eral lands intended by the statute being clearly such as are included within the " i}ublic lands " of the United States. XXXVIII, 596. [See § 2, note, sn^ra.] 1 Wilcox V, Jackson, 13 Peters, 499, 513; V Opins. of Attys. Gen. 578; VI Id. 670; VII Id. 574. =^By Art. VI § 2 of the Constitution, "all treaties made under the authority of the United States" are declared to be "the supreme law of the land"; and Indian reservations "have generally been made through the exercise of the treaty- making power, and in fullillment of treaty obligations." XIV Opins. of Attys. Gen. 182. That land cannot be reserved or occupied for military purposes to the prejudice of a title pre- viously vested in an iiulividual or a corporation, see, further, IX Opins. 339^ XIII Id. 469. MILITARY STOREKEEPER. 339 6. Where certain persons had entered unlawfully upon a military reservation, and had proceeded to cultivate the soil of the same for their personal benefit and to lead off water, needed for the use of the garrison, in order to irrigate the ground so cultivated, — advised that the commandant be in- structed to give such persons reasonable notice to quit with their property, and if they did not comply, to remove them by military force beyond the limits of the reservation.^ XLII, 256. 7. In the absence of any statute directly or by necessary imi)lication extending the powers of the local government of the District of Columbia over the military reservation and post at the Arsenal in Washington, held, (May, 1879,) that the Health Officer appointed by the Commissioners, (consti- tuting such government,) would not be empowered of his own authority and without the consent of the mihtary commander, to enter upon such reservation, and remove or abate a nuis- ance deemed by him to exist thereon. The effect of the legis- lation in regard to the government of the District is to except therefrom the public buildings and grounds of the United States, which are left to the charge of certain specified offi- cials. Even farther removed from such government is the reservation at the Arsenal, the same being a military post commanded by the President through a military subordinate, and governed by military orders and regulations. XLII, 270. See cession OF JURISDICTION ^ 1, 5. CIVIL PROCESS ^ 4, 5. POST TRADER $ 8. PUBLIC PROPERTY— DISPOSITION OF $ 2, 3, 9, 10, 11. MILITARY STOREKEEPER. 1. SeJd that military storekeepers, though without specific rank till after the passage of the Act of July 28, 18GC, were previously commissioned officers of the army 5 and that, therefore, a military storekeeper, appointed in 1861, though ^As to the authority to remove trespassers from military reservations, see III Opins. of Attys. Gen. 268 ; IX Id. 106, 4765 G. O. 74, Hdqrs. of Army, 1809. That this authority is not deemed to be aflected by the x)rovision of s. 15 of the Act of June 18, 1878, — see Army — employjMENt of for CIVIL PURPOSES § 6. 340 MISAPPROPRIATION— MUNITIONS OF WAR. Ills rank as captain dated only from the date of said Act, was entitled to tlie increased i^ay on account of length of service provided for commissioned officers of the army by Sec. 1262, Eev. Sts., according to tlie date of his original appointment. XXIII, 4755 XXX, 78; XXXVI, 529. 2. Held^ in view of the provisions of pars. 30 and 31, Army Ecgulations, that there could be no legal objection to an ex- change between a storekeeper with the rank of captain and a captain of infantry. XXX, 50. MISAPPROPRIATION. See sixtieth ARTICLE $ 13, 15. MITIGATION. See one HUNDRED AND TWELFTH ARTICLE $ 6. MOUNTED PAY. See pay AND ALLOWANCES $ 15. MUNITIONS OF WAR. Congress, by the Act of July 27, 1808, in authorizing the construction and maintaining of a TollBridge between George- town, D. 0. and the Virginia shore of the Potomac, expressly provided that such bridge should remain "open and free for the passage of troops and munitions of war by the United States, without charge or comjiensation of any kind." Held^ in view of the fact that this statute was enacted, not in war nor in contemplation of war, but at a time of peace, that the proviso should be regarded as of general application and as requiring the Bridge Company to allow the transport of ordnance and military stores of the United States across the bridge free of toll at all times. But held that the perma- nent use of the bridge as a support and duct for the telegraph wire connecting the office of the Chief Signal Officer in Wash- ington with the Signal Post at Fort Whipple, Ya., could scarcely be considered as a "passage" of a munition of war, and that the Company would therefore proj^erly be compen- sated for such use, in a reasonable sum, from the annual ap- propriation for the Signal service. XXVIII, 579. See NINTH ARTICLE. CAPTURED PROPERTY $ 1. MURDER. 341 MURDER. 1. Murder, at common law, is 'the unlawful killing, by a person of sound memory and discretion, of any reasonable creature in being and under the peace of the State, with mal- ice aforethought either express or implied.' ^ A brief descrip- tion of murder which would cover all cases likely to be brought before a court martial, under Art. dS or otherwise, would be — simply — liomicide with malice aforethought.^ In many of the States, two or more degrees of murder are now distinguished by the statute law; murder in the first degree — generally defined as a killing accompanied by express malice, or a de- liberate unlawful intent to cause the death of the particular person killed — being ordinarily alone made capital. Man- slaughter, at common law, is distinguished from murder by the absence of malice aforethought. The State statutes have generally constituted degrees of manslaughter also ; a difler- ent measure of punishment being assigned to each degree. The laws of the United States, though prescribing different punishments for manslaughter under different circumstances, recognize no discriminations of grades in either manslaughter or murder. XI, 592. 2. Where a soldier, while a superior acting in the line of his duty was attempting to arrest him for a grave breach of discipline, discharged his loaded musket at the latter with intent to kill him, but, missing him, killed a soldier standing near, lield that the crime committed was clearly murder.^ XX, 420. 3. The taking of the life of a prisoner of war, when not concerting an escape or engaging in any violence or breach of discipline justifying such an extreme measure, is as fully ^Coke, Inst. 47; 4 Bl. Com. 95; 1 East, P. C. 214; 1 Russell, Cr. 482; 1 Gabbett, 454; 2 Wharton, Cr. L. § 930; 3 Greenl. Ev. § 130; Commonwealth r. Webster, 5 Cush. 304; G. O. 23 Dept. of California, 18G5. (Eemarks of Maj. Gen. McDowell.) ''Murder, originally," says Foster, (p. 302, citing Bracton " de murdro,") Avas " an insidious secret assassination ; occulia occisio, millo sciente ant vidente.''^ Xow, secrecy in the commission of the act is significant only as evidence of legal malice. 2 See Holland v. State, 12 Ela. 117. ^ Angell V. State, 3G Texas, 542. 342 MUSICIAN — MUTINY. murder, as could be any homicide committed with deliberate malice in time of peace.^ YII, 3G0. 4. Where, in a case of an officer charged with the murder of a soldier, it appeared that the killing was done with a sword properly worn as a side-arm, held that its employment did not justify the same presumption of deliberate intent to kill which the use of a deadly weapon authorizes in cases in general.2 XII, 96. See sixty SECOND ARTICLE $ 1. MANSLAUGHTER $ 2. MILITARY COMMISSION, II $ 4, 5. MUSICIAN. See APPOINTMENT $ 4. CHIEF MUSICIAN. MUSTER OUT See SIXTIETH ARTICLE $ 17, note. MEMBER OF COURT § 4. PAY AND ALLOWANCES $ 2. MUSTER ROLL. EE DESERTION § 3. EVIDENCE $ 9. MUTINY. See TWENTY SECOND ARTICLE. MANSLAUGHTER § 4. ^ While it is lawful to kill an enemy ^'in the heat and exer- cise of war," yet '^to kill such an enemy after he has laid down his arms, and especially when he is confined in i)rison, is murder." State v. Gut, 13 Minn. 341. 2 Compare case in G. O. 63, Dept. of the Tennessee, 1863. NATIONAI. CEMETERY. 343 N NATIONAL CEMETERY. 1. The appraisement of land for a national cemetery, as finally made by a U. S. Court under Sees. 4871 and 4872, Eev. Sts., is conclusive upon the Secretary of War, who must thereupon pay the appraised value as indicated in the latter section. If indeed there has been fraud in the valuation by which the court has been deceived in its decree, or its orig- inal appraisement is deemed excessive^ it may properly be moved for a new appraisement on the part of the United States.^ XXVI, G17. 2. Held that, notwithstanding the provision in Sec. 4872, Eev. Sts., that the jurisdiction of the United States over land taken for a national cemetery, by tlie right of eminent domain, "shaU be exclusive," — such a jurisdiction, where the land is within a State, cannot legally be vested in the United States, except by the cession of the State legislature. In the absence of such cession on the part of the State sovereignty, an Act of Congress must be powerless to confer such an authority .'- XXVII, 661. 3. Held that the Act of July 1, 1870, s. 1, (as incorporated in Sec. 4882, Eev. Sts.,) so far assimilated land purchased for a national cemetery to the sites and lands specified in Sec. 355, Eev. Sts., as to make it proper, before expending in improve- ments upon such land money appropriated therefor by Con- gress, to obtain the consent of the State legislature to the liurchase, (without which exclusive jurisdiction could not be vested in the United States,) as well as the opinion of the Attorney General in favor of the validity' of the title: this latter, esi^eciaUy, as Sec. 4870, Eev. Sts., requires the Secre- ^See XIV Opius. of Attys. Gen. 27. ^See the subsequent opinion of the Atty. Gen., in XIII, Opius. 131. 344 NEW IMEMBER — NEW TRIAL. tary of War to obtain from tbe owner of tlie land, upon the purchase, ^' the title in fee simple for the same." ^ XXXI, 500. 4. Held that the general annual approi)riation for the main- taining of the national cemeteries could not legally be ex- pended for the x)urchase of other landj even if such land was proposed to be used for the interment of soldiers ; but that for such a purchase, as for any purchase of laud by the United States, specific authority must be obtained from Con- gress. XLI, 50. [See Public Property § 5.] 5. By Sec. 4881, Rev. Sts., the sui)erintendent of a national cemetery is authorized to arrest persons who injure, &c. grave-stones, trees, shrubs, &c., within the cemetery. Held that he could not, under this authority, legally arrest a per- son who fired a gun into or across the cemetery without caus- ing any such injury as is specified in the statute, but, for the arrest aud punishment of such a trespasser, must have re- course to the local authorities. XXXII, 425. 6. Superintendents of national cemeteries are no part of the armj^ but civilians, being required indeed by Sec. 4874, Rev. Sts. to be selected from persons who have been honorably dis- charged from the military service. They are therefoie of course not subject to the articles of war or to trial by court martial,- (see Sixty Third Article § 8,) and, for any seri- ous misconduct on the part of a superintendent, a removal from office would be the only adequate remedy. XXXY, 34 ; XXXVIII, 381, 557. NEW MEMBER. See member OF THE COURT $ 3. NEW TRIAL. New or second trials have been of the rarest occurrence in our military service. They have only been had, and are only authorized, Avhere the sentence adjudged upon the first trial ^Compare the opinion of the Atty. Gen. in XIII Opins. 131, given however before the passage of the Act of 1870. And see XIV Oi)ins. 557. ^ See the subsequent opinion, concurring in this view, of the Attorney General, published in G. 0. 25, Hdqrs. of the Army, 1878. NOLLE PROSEQUI. 345 has been disaijproved by the reviewing authority and the ac- cused has aslced for a second trial. It Avas held at an early pcLiod by Attorney General Wirt/ that the prohibitory- pro- vision of the Articles of War, (now contained in Art. 102,) that '•'' no person shall be tried a second time for the same offence," did not apply to a case in which the accused himself requested a new trial, the objection to such trial being deemed to be subject to be ivaived by the consent and action of the party tried. The privilege of applying for and being allowed a re-trial — for it is not a right, since the trial may be granted or denied at the discretion of the proper superior — has natu- rally been but seldom exercised 5 parties convicted and sen- tenced being in general satisfied that the i:)rocee clings in their cases should be terminated by the disapproval, on whatever grounds the same may be based. The principal instances of new trials in our practice are — that of Captain Hall, (in whose case Mr. Wirt's opinion was given,) and those of which the proceedings are published in G. O. 18, War Dept., ISGl, and G. O. 8, 9, and 26, First Mil. Dist. 1869. After a sentence has been duly approved and has taken effect, the granting of a new trial is of course beyond the power of a military com- mander or the President. XXXVIl, 492 5 XXXIX, 233. NOLLE PROSEaUL A prosecution before a court martial proceeds in the name and by the authority of the government. [See Art. 90.] The United States, therefore, through the Secretary of War, or the military commander who has convened the court, may require or authorize the judge advocate to enter a nolle prose- qui in a case on trial, (or, less technically, withdraw or dis- continue the prosecution,) either as to all the charges where there are several, or as to any i^articular charge or specifica- tion. But the judge advocate cannot exercise this authority at his own discretion, nor can the court direct it to be exer- cised. IX, 488, 533. [See Court-Martial, I § 7 ; Judge Advocate § 10.] ij Opins. of Attys. Gen. 233. And see VI Id. 205. 346 NON-COMIVIISSIONED OFFICER — ^NOTICE. NON COMMISSIONED OFFICER. A superior officer who yields to a non-commissioned officer powers or i^rivileges not appropriate to liis rank, and to wbich lie is not properly entitled, places tlie latter in a false position, while at the same time making himself in great part resi^on- sible for any abuse of authority on the part of his inferior. This is particularly true in counection with the recruiting service.^ Thus where, by the neglect or acquiescence of an officer in charge of a recruiting station, his sergeant was en- abled to exercise an authority not contemplated by the Army Eegulatious, and was thus led to uiake enlistments in coutra- vention of the rules prescribe d by the same, — heldj upon his conviction of the offences involved, that his acts were to be regarded as materially extenuated by the dereliction of his superior. XII, 402. See twenty FIRST ARTICLE § 6. APPOINTMENT ^ 4, 14. CHIEF MUSICIAN ^ 2. COMPANY COMMANDER. FORFEITURE, II ^^ 12. REDUCTION TO THE RANKS, II $ 2. NON INTERCOURSE. See FORTY FIFTH ARTICLE $ 4. LAW OF WAR § 1-5. NOTICE. See DISMISSAL, I M ; ID. II $ 5. ORDER, I ^^ 2. RESIGNATION § 2, 3. SUSPENSION § 13. J a Especially are officers" (on recruiting service) '' warned not to intrust too much authority or discretion to non-com- missioned olilcers, who may be tempted to a tyrannical ex- ercise of power." G. O. 120, War Dept., 1874. OATH. 347 0. OATH, I— AUTHORITY TO ADMINISTER. 1. An officer of the army has no authority, virtute offlcii, to administer an oath. He is indeed specially emi^owered to ex- ercise this function, under certain circumstances, by statute — as by the Second, Eighty fourth and Eighty fifth Articles of War ; and further by Sec. 183, Eev. Sts., in a case where, being an officer of the War Department, he is detailed to in- vestigate frauds, &c. XXXIY, 648. 2. So, Par. 1031 of the Army Eegulations authorizes the administering of oaths under certain contingencies by officers of the army. But this authority is not a general one, but is properly" to be exercised only in connection with the subjects of the i^revious paragraphs in pari materia, and is thus con- fined to cases of affida^'its and dei^sitions made in regard to the losing or damaging of public i>roperty by officers or sol- diers, and particularly those made in the accounting for such loss or damage by the parties resi)onsible. The authority here given can not legally be extended to quite other purpo- ses,^ — as for example, the administering an oath to a witness on giving his deposition to be used before a court martial, or to a surety justify hig upon an official bond, :iXG A COURT MARTIAL. 353 martial or sued in damages for an act done by bim in obedi- ence thereto, the order will be admissible only in extenuation of the ofi'ence.' XXY, 592. [But see Twenty First Ar- ticle § 7.] See dismissal, II. evidence § 10. ORDEE, II— CONVENING A COURT MARTIAL. 1. Held that the fact that the order convening a court mar- tial was dated on a Sunday did not affect the validity of the proceedings in a case tried by the court under sucb order. XXXVII, 317. 2. An order convening a general court martial should properly be so headed and authenticated, or so authenticated, as to show that it was issued by an ofdcer authorized by the statute law — the 72d or 73d Article of War — to create such a tribunal. Thus held that such an order, (issued in time of war,) signed by an ofQcer describing himself as commanding a ''post" or "district" was j^r/wm /«c/e invalid and inoperative, though capable of being shown to be valid by proof that the command was of such dimensions and so situated as practically to constitute a separate army, division, or separate brigade. XI, 1G2, 170, 176, 214; XXYI, 510. [See Seventy Third Article § 1-3.] 3. It is not a material objection to the validity of the pro- ceedings or sentence, that the regiment or corps of a member of the court or of the judge advocate, is erroneously stated in the order convening the court, provided the description given is sufficient to identify the officer. XXXY, 433. 4. The order should proi)erly indicate for what trial or class of trials the court is convened, or its terms should be Deady, 233, and 1 Ab. V. S. E. 212 ; Clay v. United States, DeA'ereux, 25 ; United States v. Carr, 1 Woods, 480 ; Bates V. Clark, 5 Otto, 204; Ford v. Surget, 7 Otto, 5U4; Skeen v. Monkheimer, 21 Ind. 1 ; Griffin r. Wilcox, Id. 301 ; Eiggs v. State, 3 Cold. 851 ; State r. Sparks, 27 Texas, C32 ; Keighlv v. Bell, 4 Fost. & Fin. 805 ; Dawkins v. Eokeby , Id. 831. The law is the same although the order to the inferiormay emanate directly from the President. See Eifort r. Bevins, 1 bush, IGO. ^ State r. Sparks, supra ; McCall v. McDowell, supra; Milli- gan V, Hovey, 3 Bissell, 13 ; Beckwith v. Bean, 8 Otto, 2G6. 23 D 354 ORDER, III — OF PROMULGATION. SO general in this particular as to authorize the court to entertain any case that may be referred to it for trial. A courtj restricted by the order convening it to the trial of a special case or class of cases, would not be emx)owered, (in the absence of further orders,) to take cognizance of a case not within such designation.^ XX, 250. [As to the authority to order general courts martial, see Seventy Second Article ; President, I.] See record ^ l,c, 3,uote. OEDER, III— OF PROMULGATION. 1. Where a general court martial has had two i)residents, it is immaterial whether the first or the second is mentioned in describing and identifying the court in the caption of the order promulgating its proceedings. It is not indeed neces- sary to indicate the president at all. XIII, 324. Xor is it necessary that such an order should set forth the specifica- tions to the charges ; nor — though this is usual, where the business of the court is completed — that it should formally dissolve the court. Ill, 84. An order of promulgation, indeed, is a mere form^ convenient and habitual as a means of communicating the proceedings or tlieir result to the army, and of making a summary memorandum of the same, but not necessary to the validity of i)roceedings or sentence. Though no such order is issued in a case, the proceedings or sentence in the same will be formally comx)lete and fully operative, if but the oificial action thereon of the reviewing authority be duly endorsed upon or appended to the record. XXXII, 102. [See Record § 1, Ic] 2. The insertion, in an order of publication, of the proceed- ings had tipon a re-assembling of the court for a revision of its findings or sentence, though at one time occasionally resorted to, is now most unusual. Such an addition can hardly be jiertinent except where it is designed as a basis for special comments, on the part of the reviewing officer, ^See G. O. 106, Army of the Potomac, 1862, where the pro- ceedings of a court martial in a case of a private soldier were disai^proved as without jurisdiction, because the convening order had authorized the court to try the cases only of such officers as might be brought before it. ORDNANCE DEPAI^TMENT. 355 upon tlie action of the court in connection with the matter of the revision. X, 120. 3. Where certain i^articulars usually deemed foreign to such a publication — such as special pleas, objections to testi- mony, &c. — were inserted in an order of promulgation, held that the same, though purporting to be extracts from the record, were not competent evidence as such, and, if objected to, could not properly be admitted in evidence upon the trial of a case involving the same questions. XII, 268. ORDNANCE DEPARTMENT. It is required, in general and comprehensive terms by Sec. 1167, Eev. Sts., that all officers^ persons, &c., who may be entrusted with any ordnance stores or supplies, shall make certain regular returns to the Chief of Ordnance of such proi)erty in their possession or charge, according to certain forms and regulations to be prescribed by that officer with the approval of the Secretary of War. The Act of March 3, 1879, c. 183, authorizes and directs the Secretary of War, at the request of the head of any department, to issue arms and ammunition, when required for the protection of the public money and property, — " to be delivered to any officer" of such department as may be designated by the head of the same, and to be accounted for to the Secretary of War. Held that the provision of Sec. 1167 might properly be regarded as api)lying to the class of officers indicated in this Act, who therefore would x3roi)erly be required to furnish the returns prescribed by that section. XLII, 210. See eighty FIRST ARTICLE $ 1. COLLEGE OR UNIVERSITY $ 3. CONTRACT ^ 15. SALE, &c., OF ARMS, &c., TO SOLDIERS. 356 PAEDON. R PARDON. 1. The President is empowered, by Art. II, Sec. 2, § 1, of the Constitution " to grant pardons for offences against the United States "j and a pardon, like a deed, must, in order to take effect, be delivered to and accepted by the party to whom it is granted.^ XIV, 558; XV, 486, 654; XIX, 73. Thus there can be no pardon of a deceased officer or soldier; and that the pardon is asked by the party's widow or heir, who is to be pecuniarily benefited thereby, cannot affect the principle. XXI, 564 ; XXII, 291. So where, in a case of an officer who had died while under a sentence of suspension from rank, a pardon was asked, for the purpose of having the stigma removed from his record in the service, lield that the case was not one in which the iiardoning power could be exercised. VIII, 138. 2. It is the effect of Sbfullpardouj (otherwise of a mere re- mission of the imnishment — see Eemission,) to remove all penal consequences, (except of course executed penalties — see § 4 infra.,) and all disabilities, attached by U. S. statute, (or army regulation,) to the offence, or to the conviction or sentence.^ Thus the pardon of a convicted deserter will relieve him from the loss of the rights of citizenshix) attached by the Act of March 3, 1865, (Sees. 1096, 1998, Eev. Sts.,) to a conviction of desertion.^ XXXI, 183. But a pardon by ^ United States v. Wilson, 7 Peters, 150 ; In matter of De Puy, 3 Benedict, 307 ; VI Opins. of Attys. Gen. 403. 2 XII Opins. of Attys. Gen. 81 ; Ex parte Garland, 4 Wal- lace, 380. 3 VIII Opins. of Attys. Gen. 284; IX Id. 478; XIV Id. 124. And see People v. Bowen, 43 Cal. 439. That this dis- ability can attach only ui)on a conviction, see Deserter § 8, and authorities cited in note. PARDON. 357 the President will be ineifectnal of course to remove a dis- qualification incurred by the offender under a State statute.^ XXIX, 251 ; XLI, 4G5. 3. Held that a pardon extended to an enemy for his offence or offences as such, committed during the war, did not entitle him to be paid rent for the occupation of his real estate by the U. S. military authorities while occupying by the right of conquest the region of country in w^hich such estate w^as sit- uated. XXII, 5, IG. 4. A pardon cannot reach or remit a fully executed sentence, though the same may have been unjustly imposed. II, 330 ; VIII, 149, 228 ; XXXVI, G31, (and passim.) A pardon can- not of course undo a corporal punishment fully inflicted;^ nor can it avail to restore to the army' an officer or soldier legally separated therefrom and made a civilian by a duly api)roved sentence of dismissa'l,^^ (see Dismissal, I § 5,) or by a dishonorable discharge. XII, 427 j XIV, 5G8 j XX, 302 ; XLI, 4G5. Xor can it restore a fine paid, (XVI, 305 ; XXXV, 471,) or pay forfeited, (XX, 90 ; XXVIII, 5G7 ; XXXV, G7,) when the amount of the same has once gone beyond the con- trol of the Executive and been covered into the U. S. trea- sury and become public funds,^ whatever may have been the merits of the case. XXXVI, 192 ; XXXVII, 445. Other- wise, however, where the money still remains in the hands of a military disbursing ofiicer or other intermediate ofiicial.^ XVI, G7G 5 XXI, 345. Where, however, any portion of a punishment remains unexecuted^ that portion may be remitted ^VII Opins. of Attys. Gen. 7G0. 2 See VIII Opins. of Attys. Gen. 284. 3 XII Opins. 548 ; Ex parte Garland, 4 Wallace, 381. *II Opins. of Attys. Gen. 330; XVI Id.—, (Opinion of April 29, 1878.) This, because the same Constitution which conveys the pardoning power contains a provision '' of equal efficiency," (Art. I, Sec. 9 § G,) to the effect that money in the ijublic treasury shall not be withdrawn except by an ap- propriation by Act of Congress. VIII Id. 281. Compare, in this connection, Knote v. United States, 5 Otto, 149, where it was held that an executive pardon would not entitle a party to the proceeds of certain personal effects, confiscated and sold by the United States as the property of an enemy, after such proceeds had been duly paid into the Treasuiy. ' XiV Opins. of Attys. Gen. GOl. 358 PARDON. by the pardoning power.^ II, 29, (and passim.) Congress alone can restore pay fully forfeited to the United States, or otherwise pecuniarily indemnify an of&cer or soldier for the consequences of a legally executed sentence. XXX VIII, 326, (and passim.) 5. It is the effect of the exercise of the pardoning power by the President to relieve the party from all punishment re- maining to be suffer^Ml. Where, therefore, he remits the unexecuted portion of a term of imprisonment, an additional penalty, which, by the express terms of the sentence, was to be incurred at the end of the adjudged term, as a dishonor- able discharge from the service, cannot be enforced. The pardon having intervened, the sentence ceases to have any effect whatever in law, and the soldier — the remainder of his service being regular — must be honorably discharged. VIII, 669; X, 286; XX, 460. 6. The pardoning power extends to continuing punishments, or punishments which are never fully executed, — remitting, in each case the punishment from and after the taking effect of the i)ardon. Of this class is the i)unishment of disqualifica- tion to hold military or public office, as also that of the losing of or reduction in '' files," (or relative rank,) in the list of offi- cers of the offender's grade : these being continuing i)unish- ments, may be put an end to at any time by a remission by the pardoning power.^ XXX, 262 ;*^XXXI, 24; XLI, 158. 7. While to restore to or place u^Don duty an officer or sol- dier, when under arrest or charges on account of an alleged offence, would not i^robably in this country, to the same extent as in England,^ be regarded as operating as a condonation of the offence, the promotion of an officer while under arrest on charges, has been viewed as a constructive pardon of the offence or offences on account of which he has been arrested.* 'Bntlield that such a promotion could not operate as a pardon * And the Executive, in the exercise of the pardoning power, ^' may pardon or remit a i)ortion of the sentence at one time and a different portion at another." Ill Opins. of Attvs. Gen. 418. - See XII Opins. of Attvs. Gen. 547. ^ See Clodc, Mil. Forces of the Crown, vol. 1, p. 173; Pren- dergast, 244-5, in connection with the cases cited of Sir Walter Ealeigh, Lord Lucan, Capt. Achisou, &c. ' See VIII Opins. of Attys. Gen. 237. PARDON. 359 of other offences committed by liim, of the commission of whicli no knowledge was bad by the Executive at the date of the promotion. XXX Y, G49. 8. While ordering or authorizing an ofl&cer or soldier, when under sentence, to exercise a command or perform any other duty inconsistent with the continued execution of his sen- tence, has been viewed as a constructive pardon,^ JieJd that to allow an officer, while under a sentence of suspension from rank, to perform certain slight duties in closing his accounts with the United States, could not be regarded as having any such effect. XXXVII, 190. [See Suspension § 11.] 9. It is settled that a pardon may be conditional — may be granted upon a condition i^recedent or subsequent.- Thus, where the President, by his proclamation of ^March 11, 18G5, granted a pardon to all deserters " on condition that" they duly returned, (within a certain time stated,) to their regi- ments, &c., and served the remainder of their original terms and, in addition, a period equal to the time lost by desertion, — Iield that a soldier who duly returned under this proclama- tion, but after remaining with his regiment a i)ortion of the period indicated, abandoned the service and went to his home, was liable, (the legal period of limitation fixed by the 103d Article of War not having expired,) to be brought to trial for his original desertion ; the condition subsequent upon which his pardon for the same had been extended not having been performed. X, 549. 10. In certain cases of military offenders convicted of lar- ceny of i)ublic property or conversion of i)ublic funds, (or who had escaped from militarj^ custody while under charges for such offences,) and applying for pardon, advised that, even if otherwise thought worthy of x)ardon, no pardon should be extended to them except upon the condition precedent of their making good the funds appropriated, or the property stolen or its value. I, 'Sm 5 XIX, 132 ; XXYI, CIS. 11. The i^ardon or remission of the unexpired punishments of soldiers, where lavored by the Judge Advocate General, has been recommended on grounds of which the principal were the following: — That the soldier was enlisted under ^ See VI Opins. of Attys. Gen. 714. ^ Ex parte Wells, 18 Iloward, 307; Commonwealth i\ Hag- garty, 4 Brewst. 3«*C; YI Opins. of xUtys. Gen. 405. 3G0 PARDON. false representations as to the kind of service which would be required of him, made by the recruiting officer in disregard of par. 92G, Army Eegulations; That he enlisted as a mere recruit, did not have the Articles of War read to him, and had no proper comprehension of the gravity of his offence ; That he did not comx)rehend his military obligations on account of an imi)erfect knowledge of the Eiiglish language; That his offence was wholly or in part induced bj' harsh or injudicious treatment by a military superior; That excess- ive or unreasonable duty had been required of him, or that he had been put on duty, (as a guard or sentinel, for example,) when unfit for the same on account of illness or i)artial intox- ication ; That his offence was committed under a provocation, or was accompanied by circumstances of extenuation, to which the court had not given due weight ; That prior to his trial and sentence he had been adequately disciplined by his commander; That his confinement had so seriously im- paired his health that if continued it would endanger his life ; That an unreasonable time was allowed to elapse between his arrest and trial, or after trial and before the approval and promulgation of the sentence. These, and other, grounds have been taken into consideration, sometimes alone, and sometimes in combination or in coimection with such further favorable circumstances as voluntary return in case of deser- tion, i^revious good character, good conduct under sentence, «&c. In cases of officers^ the principal grounds for recommend- ing pardon or remission have been — a previous good record for efficiency in the service, especially in time of war, a high personal character or reputation, and an api^arent absence of a fraudulent or criminal intent in the offence as committed. IX, 245, 595; XIII, 09; XXVI, 540; XXYII, 392, 505; XXVIII, 340; XXXII, G75; XXXVII, 572, (andiMs.sim.) 12. In cases in which military offenders — such as deserters from the army remaining at large, or officers or soldiers who have escaped from military custody while in arrest or under sentence — have applied from their i)laces of refuge for execu- tive pardons, it has almost invariably been advised by the Judge Advocate General that the application be not enter- tained till the fugitive from justice should return and surren- der himself to the military authorities to stand his trial or abide by his sentence. XVII, 204; XIX, 132, 090; XXII, PAY ACCOUNT. 361 285; XXIII, 309; XXVI, 048; XXXIV, 661; XXXV, 551; XXXVIII, 607, 652; XXXIX, 324, 326; XLIII, 171. 13. In cases of deserters from the army and from the draft, who, during the late war, when men of patriotism and honor were offering their lives in the service of their country, took refuge in Canada, — shirking a grave jmblic duty at a critical period of national peril, — and remained there till the close of the war, when, in the prospect of returning peace, they ad- dressed to the Executive applications for i^ardon and restora- tion to the rights of citizenshii) forfeited by their crime — advised J invariably, that such applications be denied. XVII, 208, 258, 263; XIX, 690; XX, 44; XXXIV, 669. 14. A x^arty who has been pardoned by the President for a political offence, or has taken advantage of a proclamation of amnesty, (such as that of May 29th 1865, or Dec. 25th 1868,) is not thereby relieved from amenability to trial and punishment for a crime, not of a political character, committed by him, or from the legal consequences of the commission of such a crime. XXVIII, 394; XXIX, 35. See one HUNDRED AND TWELFTH ARTICLE. PAY ACCOUNT. An officer's "pay account" is not commercial paper, but, in its legal aspect, a mere receipt.^ So held that a bona fide assignee of an officer's pay account for a certain month, who, on receiving payment thereon from a paymaster, delivered to the latter the account with his name written on the back of the same, did not thereby incur the obligation of an endorser^ or render himself liable as such for the amount to the pay- master, on its being ascertained that the officer had already himself drawn his paj' for that month, and that a double pay- ment had thus been made. XLIII, 68. ' Xote in this connection the oinnion of the Attornev Gen- eral, of Oct. 23, 1878, (XVI Opins. — ,) to the effect that an approved account or voucher issued to a contractor for an amount due him under his contract is "not in any jnoper sense negotiable paper." 362 PAT AND ALLOWANCES. PAY AND ALLOWANCES. 1. Pay is the monthly pecuniary compensation of officers and soldiers of the army/ as fixed by Sees. 1261, 1280, &c., Eev. Sts. It is quite distinct from " allowances.''^ A sentence forfeiting pay does not affect allowances or vice versa. II, 193; VIII, 578; X, 565; XXX, 282; XXXII, 41. [See, in this connection. Forfeiture, II § 3, 4.] 2. The right to pay begins and ends with the i^eriod of legal service. Excei^t by special authority of Congress, an officer or soldier cannot be j)aid for military service rendered before appointment, enlistment or muster in. XXXYIII, 120. A soldier, however, who, by accident or through some exigency of the service, is held to service for a brief period after the date on which his term of enlistment expired, is proi^erly entitled to be paid for such additional period. XXIX, 424; XXXVIII, 662. So, a soldier, detained in the service, after his term of enlistment has expired, by reason of the pendency of proceedings under cLarges preferred against him, and who, upon trial, is acquitted, or sentenced to a punishment not in- cluding forfeiture of pay, and is thereupon discharged, — is entitled to be paid up to the date of discharge. XXI, 448. An officer separated from the service by a dismissal, droi^ping for desertion, "wholly" retiring, or acceptance of resignation, is entitled to be paid up to the day on which he personally receives official notice of the order or act thus detaching him from the army and making him a civilian. XXVIII, 423, 426; XXX, 549. [See Order, I § 3.] An officer or soldier cannot be dismissed, discharged, or mustered out as of a prior date, with the effect of depriving him of pay accrued between that date and tlie date of the actual discharge, &c.^ XVI, 406; XXII, 506. [See Dismissal, II § 2.] ' '' It is the intention of the law," (see Sec. 1189, Eev. Sts.,) " that the pay of the army sliould not be in arrears more than two months." Opinion of the Attorney General of March 21, 1877, (XV Opins. .) ^See X Oi)ins. of Attvs. Gen. 285; MiiXayhten, 27. =^ See AUstjiedt v. United States, 3 Ct. CL 2S4. On the other hand, wliere an ofhcer, who has been dismissed, is restored, (by the authorit}^ of Congress,) to office with the raidv which PAY A^B ALLOWANCES. 363 3. While lie remains iu the military establishment, an offi- cer or soldier, whether or not actually performing military service, can be deprived of his legal pay, only through a duly adjudged and approved sentence of court martial, or by the operation of law under some express statutory enactment or army regulation.' The fact that an officer or soklier is under charges, in arrest, or awaiting sentence, cannot, (except in so far as his case may be within the application of x^ars. 1357- 1350, Army Eegulations, presently to be considered,) afi'ect in any manner his right to the regular pay of his rank. VIII, 478; XII, 230. [See Arrest, I § 8.] 4. [N'or does it afi'ect this right that the officer or soldier has been arrested by or delivered to the civil authorities for trial for a capital, or other, crime. While the criminal proceeding is ijending, whether he remains iu legal custody or is ad- mitted to bail, his right to his pay is as perfect as when reg- ularly on military duty. XXI, 288, 295 ; XXXIII, 315. [See Arrest, II § 3.] 5. A sentence expressly forfeiting all pay due a soldier ap- j)lies only to pay due him under his pending contract. It will not affect pay which may be due for service rendered under a previous enlistment and not yet settled. XIY, 371 ; XLII, 73. 6. A dismissal of an officer by order of the President does not involve a deprivation of any part of the pay due him, and if the order is so expressed as to dismiss him " without pay or allowances," or in terms to that effect, it is, as to this por- tion, unauthorized and inoperative. X, 21G ; XLII, 73, 470. [See Dismissal, II § 2.] So where a legal muster into serv- ice of a volunteer officer was r evolved by order, after an in- terval of service rendered, with the effect,. (given to the or- der,) of depriving him of pay for such service, held that the so-called revocation was unauthorized and inoperative. A he had when dismissed, or other I'ank of a date prior to the restoration, he is not thereby entitled to back pay. In such cases, in the absence of any grant of pay in the statute, ''the relation back is for rank only, not pav." IV Opins. of Attys. Gen. 003; V Id. 101, 132; IX Id. 137^. * See to tlie same efiect the opinion of the Attorney General of November 1), 1870, (XV Opins. ,) and, on the general principle th-Ai pay cannot he forfeited by implication^ see For- feiture, II § 2. 364 PAY AND ALLOWANCES. legal executive act cannot he tlins nullified to the prejudice of a vested right. XLII, 470. 7. An officer or soldier cannot be deprived of his pay by means of any civil process of attachment or levy on execu- tion. [See Civil Process § 1.] So where a wife, in an ac- tion of divorce against her husband, a captain in the United States service, obtained au interlocutory judgment for an allowance pendente lite — Jielcl^ that there was no precedent or legal ground for requiring him to satisfy the amount of such judgment out of his pay. VIII, 493. 8. By operation cf law, indeed, under certain express stat- utory provisions, an officer's or soldier's pay may be withheld altogether, or temporarily, or be subjected to certain charges and thus reduced. Thus, by Sec. 12G5, Eev. Sts., an officer absent without leave forfeits all Ymj during the period of his absence, unless the same be excused as unavoidable. By Sec. 12GG, an officer dropped from the rolls for an unauthor- ized absence of three months is required to '^ forfeit all pay due or to become due." Sec. 17GG prohibits the payment of his comi>ensation to any jierson while he continues '' in ar- rears to the United States." Sees. 1303 and 1304 require in effect that the cost of damage done to arms, &c., and the value of military stores found deficient, shall, except where the loss is occasioned by no personal fault of the party, be charged against the pay of the officer or soldier responsible for the damage or deficiency. XLI, 15G. 9. So, by pars. 1357 and 1358, Army Eegulations, ^ it is directed that no officer or soldier shall receive pay or allow- ances for any time duriiig which he has been absent without leave, (unless he shall furnish to his commanding officer a satisl'actory excuse for such absence,) and, further, that a deserter shall forfeit all pay and allowances due him at the time of his desertion. These forfeitures are incurred by oper- ation of law, ui)on the commission of the offence, independ- ently of any punishment for the same by sentence of court- martial, and it is not essential to their taking effect that the offence should have been found by a military court. In gen- eral, however, they cannot safely be enforced in the absence of ^ Par. 1357, so far as respects officers, must be regarded as superseded bv Sec. 12G5, Rev. Sts. Par. 1358 has been shghtly modified by G. O. SS, War Dept., 1873. PAY A^'D ALLOWANCES. 365 au ascertainment of the guilt of the party by a trial and con- yiction. Onl3' sucli pay is affected by tliese regulations as is expressly specified therein. Thus a deserter forfeits both pay due at the time of his ofience and pay for the i)eriod of his unauthorized absence, so that, upon his apprehension or sur- render, nothing whatever is due him. But here the forfeit- ure by operation of law ends ; from this date his pay begins to run anew ; and unless his sentence, (in the case of his trial and conviction,) includes a forfeiture of pay due, he will be entitled to his pay, (less any legal stoppages or deductions,) from such date, (which is considered to be that of his return to service,) to the date of his discharge, whether this be a dishonorable discharge adjudged by the sentence and exe- cuted forthwith, or — the sentence not imposing such i)unish- ment — an honorable discharge given him in the usual manner after a further i^eriod of service. Y, 386 ; Till, G50 ; XXI, 433 ; XXIII, 160 ; XXI Y, 26 ; XXXIX, 360. Par. 1350 indeed provides that this pay shall not be rendered to him prior to trial, but it does not affect his right to receive it when the trial is completed, and it is found not to be forfeited by the sentence of the court. XXI, 433. An officer or soldier brought to trial for desertion or absence without leave, and acquitted, cannot, of course, be subjected to an3^ of these forfeitures; nor can one who has been con- victed but whose conviction has been disapproved by the competent reviewing authority. YIII, 510. [An acquittal of desertion, or a disapproval of a conviction of desertion, in- cludes of course an acquittal, or a legal nullifying of the con- viction, of the offence of absence icitliout leave included in the desertion. XXX YII, 500. See Fin'ding § 8 ; Review- ing Al THOKITY § 2.] So, where a charge of desertion against a soldier was re- moved in Orders, as unfounded, and he was granted an hon- orable discharge, held that the forfeiture prescribed by these regulations could not be enforced. XXXIX, 413. 10. A captain having been mustered out of the service, as a supernumerarj-, with one year's extra pay and allowances, according to the provisions of sec. 12 of the Act of July 15, 1870, was, (after more than two years,) reappointed as a sec- ond lieutenant, and thereupon required to submit to a stop- page against his pay, as such lieutenant, of the said extra 3(}6 PAY AND ALLOWANCES. pay. Held, (March, 1873,) that this requirement was unau- thorizecl in law. The allowance granted by the Act was a provision made for the officer in consideration of his abrupt and compulsory separation from the service ui)on the reduc- tion of the army, and, once paid, could not be reclaimed. Moreover his legal status under his new appointment was wholly independent of that occupied under his previous com- mission, and, in the absence of any legislation of Congress attaching such a condition to the holding by him of the new office, the Executive could have no more authority to impose any than if he had never previously been connected with the army. XLII, 195. This opinion having been affirmed by a subsequent opinion of the Attorney General of May G, 1873,' Congress was in- duced to pass an Act — approved March 3, 1875 — specifically providing that officers mustered out as supernumerary should be required, upon reappointment, to refund the one year's pay rendered to them upon the muster out. Held, under this Act : — 1st, that it applied only to future cases, i. e. to cases of officers who should be so re-appointed after its date, (XXXYI, 355;) 2d, that it applied only to officers mustered out as supernumerary under sec. 12 of the Act of 1870, and not to officers honorably discharged upon their own applica- tion by the authority of sec. 3 of the same, these latter con- stituting a separate and distinct class from the supernumerary officers.^ XXXVII, 050. 11. It is within the authority of Congress to reduce the pay or allowances of officers or soldiers at any time during their period of service or euhstment. XXXII, Gil, G71. [See En- listment § 9.] But this of course cannot be done by mili- tary or executive authority,-^ nor can a soldier's pay be tvith- held except in pursuance of law or sentence. Thus held that a commanding officer was not authorized to withhold a sol- dier's pay on the theory that if paid he would probably de- sert. XXX, 356. 1 XIY Opins. 230. ^ See the confirmatory opinion of the Attorney General, of November 15, 187G, (XV Opins. — .) ^ '' It is not within the power of the executive department, or any branch of it, to reduce the pay of an officer of the army." United States v. Williamson, 23 Wallace, 410. PAY AND ALLOWANCES. 367' 12. Eeld (1871) that an officer ordered to liisliome to await orders did not occupy tlie status of an officer on leave of ab- sence, and was not therefore on half pay durin<,^ the period of thus awaiting orders, but was entitled for such period to the full pay of his rank.^ XXXI, 509 j XLII, G8. 13. Held that Sec. 12C2, Eev. Sts., in providing for a certain in- crease of pay for officers on account of duration of service, refer- red to service in the army, and that a i)eriod during which a cer- tain officer had served in the navy could not legally be included in computing his years of service under this statute. XLI, 234. 14. Held that medical cadets^ — in view of the terms of the statute, (Act of Aug. 3, 18G1, c. 42, s. 5,) authorizing their employment in the military service, — though not private sol- diers or non commissioned officers, were clearly enlisted men ; and therefore that officers now in the army who had served as medical cadets during the war were entitled, under the provisions of Sec. 7 of the Act of June 18, 1878, to compute the period of such service in computing their ^'service" or ^Hongevity " pay under Sec. 1262, Rev. Sts.^ XLIII, 196. 15. The Act of July 17, 1862, c. 200, s. 1, allowed to offi- cers ^assigned to dut^' which required them to be mounted' certain increased pay. So, Sec. 1261, Eev. Sts., entitles cap- tains and lieutenants, when "mounted" to receive respect- ively two hundred and one hundred dolhirs per annum of pay more than when " not mounted." Held that, to entitle officers to the increase of pay under these statutes, it was not, and is not, essential that the duties reciuired of them shoidd make it absolutely necessary that they should be mounted, but that it was, and is, sufficient if these duties were, or are, such as ^ This opinion was affirmed, in the same case, (United States t\ WiUiamson,) by the Court of Claims, in 1873, (9 Ct. CI., 503,) and by the Supreme Court, in the next year, (23 Wal- lace 411.) But in United States r. Phisterer, 4 Otto, 210, it was held that an officer, ordered to his home to await orders, was not entitled to commutation for quarters and fuel, his home not being a "station" in the sense of par. 1080, Army Eegu- lations. See G. O. 78, Hdqrs. of Army, 1877, issued in conse- quence of this decision. But see the recent case of United States V. Lippitt, 10 Otto, 663, where the officer was ordered to the headquarters of a military department^ to await orders. ^ Held otherwise in regard to officers of the army who had been cadets of the Military Academy, such cadets not being enlisted men. Opmion of the Solicitor General of Aug. 7, 1878, (XVI Opins. — .) 368 PAY AND ALLOWANCES. are usually and ai)propriately performed by mounted officers, and sucli as can not be performed effectively or without ma- terial embarrassment and inconvenience to the service ex- cept by such officers ;^ and further that the certificate of the proper commander of an officer, (as of the Chief Signal Offi- cer in a case of an officer engaged in signal duty, or of the Sui>erintendent at West Point in a case of an acting quar- termaster stationed at that post,) that the duties of the officer l>roperly required, (in the sense above indicated,) that he should be mounted, would, (the Secretary of War approv- ing,) be sufficient to entitle him to receive the additional pay.^ XXVI, 078 ; XXIX, 59. Held that a captain or lieutenant, detailed as a i)rofessor in a college under Sec. 1225, was not entitled to mounted pay. XXXIX, 475. 16. Sec. 1261, Kev. Sts., in fixing the pay of officers, pro- vides that an "acting assistant commissary '' shall be paid '' one hundred dollars a year in addition to the pay of his rank." The statute does not prescribe that the officer thus "acting" shall have any particular rank, nor is there any such an office in the army as 'assistant commissar^-.' Held therefore, that "acting assistant commissary," as here used, was a name for, or description of, a duty^ not an office ; that a captain was as legally eligible to be detailed on the duty of an acting assist- ant commissary as was a lieutenant ; and therefore that a cer- tain captain who had been thus detailed was entitled to the additional pay specified by the statute. XLI, 217. 17. Held that the additional pay upon re-enlistment, ac- corded to soldiers by Sec. 1284, Eev. Sts., was intended as a compensation for long and continued military service, with- out reference to the kind of service or the corps in Avhich it was rendered; and therefore that, where this additional pay had once l;egun to accrue to a soldier by reason of his having entered, in accordance Avith the provisions of the section, upon a second term of five years' service in the infantry, his ^Xote, in this connection, the construction, in Griswold v. Hepburn, 2 Duvall, 20, of the provision in Art. I, Sec. 8 § 18, of the Constitution, that Congress shall have the power "to make all laws Avhich shall be nceesmrjj,''^ &c., for the execution of its special i)ovrers — as meaning not indisx)ensable but ap- propriate and conducive to the purpose. ^ See the recent G. O. 7, Hdqrs. of Army, 1880, as to officers entitled to mounted pay. PAY AND ALLOWANCES. 3G9 continued riglit to the same was not interrupted by liis being- discharged from the infantry and, (on the next day,) enUsted in the ordnance corps. XLIF, 1^83. 18. Sec. 1305, Eev. Sts., provides for the deposit by an en- listed man of his savings Avith a paymaster, to be paid over to him upon discharge. Held that this statute provided for voluntary deposits only ; and that an officer, liowever lauda- ble his motive, was not legally authorized in thus depositing, against the will of a soldier, certain money in his hands belonging to the latter. XXXIX, 471. 19. Pay, after it has been delivered to an officer or a sol- dier, is beyond the control of the military authorities. Thus where, uj)on the apprehension of a soldier as a deserter, an amount of his last pay, found in his possession, was, as a matter of discipline, taken from him and retained by his com- manding officer, held that such action was unauthorized and illegal. ^ XXXIX, 471. 20. The remission of another punishment imposed by sen- tence uj)on a soldier in connection with forfeiture of paj^ w^iU not in general aftect the forfeiture. XXT, 43. But where a soldier was sentenced to forfeit all pay due and to become due, and to be dishonorably discharged from the service, and the latter i^unishment was remitted by the reviewing author- ity in approving the sentence, held that the soldier became entitled to receive pay accruing after this action, — the for- feiture of "pay to become due" having evidently been im- I)Osed in contemjilation of his being j)resentlj' separated from the service by the discharge, and therefore not i^roperly to be enforced under the altogether different status created by the remission. XV, 2G0; XVI, 533; XIX, G78. 21. It is provided by Sec. 1291, Eev. Sts., that "no assign- ment of pay by a non-commissioned officer or private, previous to his discharge, shall be valid." ^ But held that this statute did not preclude a soldier, so situated as to be unable to re- ceive his ijay in person, from giving an order to another i^er- son to receive and receipt for the same /or him^ and therefore ^ This statute does not aj^ply to officers^ who are therefore authorized to assign their pay after it has become due, (par. 1349 of the Army Eegulations prohibiting its assignment hefbre due.) Opinion of the Attorney General of May 17, 1877, (XV Opins. — .) 24 D 370 PAY AND ALLOWANCES. tliat a soldier in tlie custody of the cis'il authorities under a criminal charge might legally be paid the amount of pay due him upon an order given by him for the same to the attorney employed to defend him. XXXVIII, 315. So held that the pay due an insane officer or soldier might legally be rendered to a person duly appointed as his guardian under the State law. XXXIII, 45. 22. Held that an officer on the active list/ detailed as a pro- fessor in a college under Sec. 1225, Eev. Sts., though detailed at his own request, was entitled to the usual allowances of officers on duty, viz. the allowance for commutation of quar- ters made payable by Sec. 9 of the Act of June 18, 1878, c. 2G3, '' at i:)laces where there are no public quarters," and the right to i^urchase fuel on the terms accorded by Sec. 8 of the same Act.2 XXYII, 662; XXXI Y, 365; XXXIX, 475. 23. Held that, while engineer officers engaged upon civil works were entitled, like other officers on duty, to the allow- ances authorized by Sees. 8 and 9 of the Act of June 18, 1878, no part of the appropriations speciallj' made for such works by Congress could, in the absence of express statutory au- thority for the puri^ose, be devoted to the purchase of fuel for such officers or to the payment to them of the commuta- tion allowance for quarters. XLI, 346. 24. Sec. 8 of the act of June 18, 1878, authorizes the fur- nishing of fuel to officers at a certain rate '' according to the regulations now in existence." ^ Held that an officer, while ab- sent on sick leave, was not entitled to the benefit of this pro- vision. XLI, 382. 25. The Act of June 18, 1878, c. 263, s. 8, provides that "fuel maybe furnished to the officers of the army by the ^ See the opinion of the Attorney General of July 18, 1878, (published in G. O. 52, Hdqrs. of Army, 1878,) that retired officers are not entitled to the right to purchase fuel under the Act of June 18, 1878. 2 Compare Long v. United States, 8 Ct. CI. 398. ^ It has been held by the Attorney General that the words in this section — " at the rate of three dollars per cord for standard oak wood, or at an equivalent rate for other kinds of fuel, ac- according to the regulations now in existence," were to be con- strued as only authorizing the quartermaster department to furnish the quantity of other fuel for three dolhirs which, by the regulations, is made the equivalent of a cord of standard oak wood. Opinion of July 18, 1878, (XVI Opins. — ,) PAY AND ALLOWANCES. 371 quartermaster's department for the actual use of such officers only," &c. Helcl^ (Aug. 13, 1878,) that it would not be iu con- travention of this statute to furnish to the families of officers, temporarily absent by authority, though not on formal leave, from their stations, the allowance of fuel to which they were entitled, (i. e. the fuel which they were allowed to purchase at a reduced rate under the Act;) — articles of necessity fur- nibhed for the use of an officer's family under the circum- stances being in contemplation of law furnished for the use of the officer himself. XXXIX, 638. 26. Held that the term of description in sec. of the xVct of June 18, 1878, — ^^at places where there are no public quar- ters," included places where the public quarters were insuffi- cient for all the officers of the command ; and that officers stationed at such places, to whom, on account of the insuffi- ciency of the existing accommodations, no quarters could be furnished, would be entitled to the commutation allowance.^ XXXIY, 341. 27. Reld that the right of an honorably discharged soldier to the ''' travel pay," or allowance for transportation and sub- sistence, while i^roceeding from the place of his discharge to the place of his enlistment, as accorded by Sec. 1290, Eev. Sts., was not divested by a sentence of court martial imposed upon him before discharge by which were forfeited, with pay, his ^'allowances due and to become due"; this term referring to his regular allowances as a soldier, and not including the allowance in question which is made to the soldier after he has become a civilian. XXXVIII, 172. See appointment q 11. DISCHARGE, II ^ 6. DISMISSAL, I ^ 4. FORFEITURE, IL ORDER, I ^> 3, 4. PAY ACCOUNT. PAYMASTER. POST TRADER $ 5 PRISONER OF WAR ^ 9, and note. PROFESSOR OF THE MILITAIU^ ACADEMY. RESIGNATION $ 2. RETIREMENT $ 8. STOPPAGE. ^ See opinion, to a similar effect, of the Solicitor General, of August 7, 1878, (XVI Opins. — .) 372 PAYMASTER— PAYMENT BY MAIL. PAYMASTER. It is not iincommou for paymasters to deliver to command- ing officers of companies in whom tliey liave confidence the amounts of pay due to men of the comi)any mustered for pay with itj but who may not he present at the pay-table at the time the payment is made. There is, however, no statute or army regulation authorizing x^aj^masters to make pay in any manner other than to the soldier in person j and where a pay- master commits to his officer the pay of a soldier without the assent of the latter, he acts at his own risk, and if the pay is not duly rendered to the soldier, the paymaster becomes re- sponsible for the same to the government, which of course remains liable to the soldier until he is paid what is due him. XXIY, 376. See sixtieth ARTICLE § 9, 10, 11. DISBURSING OFFICER. PAY ACCOUNT. TRANSPORTATION OF PUBLIC FUNDS. PAYMASTER'S CLERK. A paymaster's clerk is a civilian, (see Sec. 1190, Eev. Sts.,) and no part of the army. Unless actually serving with an army in the field in time of war, and thus within the class of persons indicated by the 63d Article of War, he is not amen- able to military discipline or the jurisdiction of a court-mar- tial.^ Ill, 269. [See Sixty Third Article § 2.] PAYMENT BY MAIL. In the absence of any usage, or course of dealing between the parties, or special direction by the creditor or person to whom the remittance is made, authorizing such a mode of transmission, the sending hy mail to a party, of money due ^ Paymasters' clerks in the Navy occui)y a difi'erent status. They wear a uniform, have a fixed rank, and are held by the U. S. courts to be a part of the navy and amenable at all times to trial by naval courts martial. See Ux parte Eeed, 10 Otto, 13; In re Bogart, 2 Sawyer, o96; United States v. Bogart, 3 Benedict, 257. PENITENTIARY— PENSION. 373 liira, is at the risk of tbe party remitting, and, if the money is lost in transitu, such a sending does not amount to a U^gal pay- ment or discharge of the debt.^ So, where au officer, having iu his possession certain comi^any funds, due and i)ayable to another officer stationed at another post, transmitted the amount in a communication by mail, without any request or authority from the latter so to forward the same ; and the sum remitted, or a part of it, was lost en route ; held tliat the loss must be borne by the officer sending the money. XXYI, 274. Similarly held, where a superior officer attempted to transmit to an inferior officer under his command, without any request or authority from him so to transmit the same, certain pay due the latter, in the form of a check i^ayable to bearer, enclosed in a letter, which was lost or stolen in transitu, XXI, 112. PENITENTIARY. SEE NINETY SEVENTH AETICLE. PENSION 1. By Sec. 4693, Eev. Sts. a soldier '^disabled by reason of any wound or injury received, «S:c., while in the service of the United States, and in the line of duty," is entitled to a pension. Where a soldier, without fault of his own, but by reason of a casualty of the service, received a disabling injury, held that the fact that he was at the time undergoing a tem- porary confinement under sentence of a regimental court could not legally be allowed to prejudice his claim. It is a l)art of a soldier's military dut^^ to submit to any punishment duly imijosed ux)on him, and, in submitting to the same in compliance with a military order, the soldier is in the line of his duty. XLI, 257. 2. In the absence of any statutory provision on the subject, held not to be essential, to entitle a person to a military pen- sion, that he should have received an honorable discharge as a soldier. The pension is granted on account of disabihty incurred by the part}' in the line of duty while in the military ^ Gurney v. Howe, 9 Gray, 404 j Boyd v. Reed, 6 Heisk. 631 ; Morton v. Morris, 31 Ga. 378 ; Burr v. Sickles, 17 Ark. 4285 Selnian v. Dun, 10 AYest. L. J.459j 2 Greenl. Ev. § 525^ 1 Pars. Contr. 132. 374 PEONAGE — PERJURY. service, wholly irrespective of the circumstances, whether honorable or dishonorable, under which he may subsequently have become separated from the army.^ XLIII, 346. PEOHAGE. In view of the provision of the Act of July 17, 1862, c. 195, s. 10, that "no person in the military service shall assume to decide upon the validity of the claim of any person to the service or labor of any other i^erson, or surrender up any such person to the claimant, on pain of being dismissed from the service," — held that an officer of the army stationed in New Mexico, who caused to be delivered, to his former master there, a fugitive peon, was liable to trial by court martial and, upon conviction, to dismissal.^ XIX, 377. PERJURY. 1. False swearing by a witness before a military court is not perjury at common law, nor according to any Article of War.^ But though perjury is not made a si^ecific offence by ^ This view has since been ascertained to be in accordance with the practice of the Office of the Commissioner of Pensions. - See the more recent enactment of March 2, 1867, as incor- porated in the Eevised Statutes, (Sees. 1090 and 1991,) abolishing peonage in New Mexico, (and elsewhere,) and declaring that "every person in the military or civil service in the Territory of New Mexico shall aid in the enibrcemeut" of the law on tlie subject. ^In England, indeed, false swearing before a court martial appears to be regarded as being indictable as i)eijury at common law. See Queen v. Heane, 4 B. & S. 947 ; also Clode, Military Forces of the Crown, vol. 1, pp. 169, 552-4. A special statutory provision making a false oath before a naval court-martial indictable as perjury, was contained in the Articles for the government of the navy, established by the Act of July 17, 1862, c. 204, and appears still to -subsist in the 41st of the present Articles and Sec. 1023, Kev. Sts. There is no statute relating specihcally to false swearing be- fore a court martial of the army. The general provision, however, of Sec. 5392, Kev. Sts. providing for the punishment of i^erjury, is broad enough to include a case of false swearing as to "material matter" before any court martial equall}' as before a civil tribunal of the United States. Thus a military person guilty of making a false inaterial statement under oath as a witness upon a military trial, would be amenable PL FA. 375 the military code, false swearing by an officer or soldier be- fore a court martial is ^'conduct to the prejudice of good order and military discipline," and is cognizable and punish- able as such under the general — G-Jd — Article. And a charge of ^'Peijury," in connection with a si)eciflcation setting forth a false swearing upon a court martial, will constitute a suffi- cient pleading of an offence under this Article. XXII, 607 j XXX, 190. [See Sixty Second Article § 8.] 2. False swearing before a court martial not being j)erjury at common law, the rules as to the character and amount of the evidence necessary to sustain an indictment for i)eijur3', though they may i^rofitably be referred to, need not govern the proof of the military offence. Such offence will ordinarily be sufficiently established by the written record, (or, in its absence, by secondary i)roof,) of the testimony as given, together with any reliable and satisfactory evidence that the same was knowingly false. XII, 631. ^E MILITARY OFFENCE. PLEA. 1, It is a general rule of criminal law that where the accused pleads guilty, no tsstimony on the merits is to be introduced. But, on military trials, the court, even against the objection of the accused, may, in its discretion, call uiion the judge- advocate to offer evidence, or approve of his doing so, in a case where such evidence is deemed to be essential to the due administration of military justice.^ An accused cannot not only to a military charge but apparently also to indict- ment in the U. S. District Court. ^The principle that, in cases in which the plea is guilty, the court should take testimony, Avhere necessary to the com- prehending of the facts and the doing of justice, though ai)i)arently in a measure lost sight of at a later period, was clearly enunciated in early General Orders of the AVar De- partuient. Thus, in G. O'. 1^3 of 1830, ]\raj. Gen. :Macomb, (commanding the Army,) expresses himself as follows: — "In every case in which a i)nsoner pleads guilty, it is tlie duty of the court-martial, liotwithstanding, to receive and to report in its proceedings such evidence as may afford a full knowl- edge of the circumstances; it being essential that the facts and particulars sliould be known to those whose duty it is to report on the case, or who have discretion in carrying the sentence into effect." And see G. O. 21, of 1833, to a similar eff'ect. 376 PLEA. be allowed, by pleading guilty, to shut out testimony where the iuterests of the service require its iutroduction. XXIX, 124. But in all cases where evidence is introduced by the prosecution after a plea of guilty, the accused should of course be afforded an opportunity to offer rebutting evidence, or evidence as to (character, should he desire to do so. XIII, 423. 2. While it cannot properly be ordered by a commander that courts martial convened by him shall not receive pleas of guilty, or shall take evidence on the merits notwithstand- ing pleas of guilty are interi)osed by the accused, it is yet proper, and in general desirable, particularly in cases of enlisted men, and especially where the specifications do not fully set forth the facts of the case, that the prosecution should be instructed or advised to introduce, with the consent of the court, evidence of the circumstances of the offence, where the plea is guilty equally as where it is not guilty. This for the reason that the court may be better enabled correctly to appreciate the nature of the offence committed and thus to estimate the measure of i>unishment proper to be awarded ; and further that the reviewing authority may be better enabled to comi)rehend the entire case, and to determine whether the sentence shall be api)roved or disapproved, (in whole or in part.) or shall be mitigated or, (in whole or in i^art.) remitted. [See Court Martial, 1 § 9.] Where indeed the sentence is not discretionary with the Court, the former reason does not apply? though in such case the evidence may be desirable as the basis for a recomynendation by the members. But where the sentence is mandatory, the latter reason api^lies with the greater force, since the mandator^^ j^unishments under the Articles of War are in general of the severest quality, and the reviewing officer in acting upon the same is called upon to exercise an especially grave discretion. In capital cases particularly^, it is most important that all the facts of the case — all circumstances of extenuation as well as of aggravation— should be exhibited in evidence. Ill, 047 j VI, 370. In practice, the absence of evidence to illustrate the offence has been found peculiarly embarrassing in cases of deserters. In a majority of these cases in Avhich the plea is ''guilty," the record is found to contain no testimony whatever ; and a full and intelligent comprehension of the nature of the offence — PLEA. 377 wlietlier desired upon tlie original review of tlie proceedings or upon a subsequent application for remission of sentence- is thus, in many instances, not attainable/ XXVII, 180. 3. It not unfrequently bappens uj^on trials of enlisted men that the accused, in pleading guilty, will i)roceed to make a statement^ (verbal or written,) to tbe court, which is in fact inconsistent with the plea. Thus, in a case where the accused, being evidently ignorant of the forms of law, pleaded guilty to an artificially worded charge and specification, and imme- diately thereupon made a verbal statement to the court of the particulars of his conduct, setting forth facts quite incon- gruous with his i)lea ; and no evidence whatever was intro- duced in the case — held that the statement, rather than the plea, should be regarded as the intelligent act of the accused, and that, ui)on considering both together, the accused should not be deemed to have confessed his guilt of the specific charge. YIII, 274. In such a case the court will properly counsel the accused to plead not guilty, and this plea being entered, will x)roceed to a trial and investigation of the merits. YI, 357, 370. And where, with a plea of guilty, there was offered by the accused a written statement setting forth material circumstances of extenuation^ and the court without taking any testimony whatever, or apparently regarding the statement, proceeded to conviction and sentence; advised — the case being one in which the sentence had been partly executed — that this action constituted a reasonable ground for a remission of a portion of the punishment. XX, 120, 127, 177; XV, 142; XXIX, 421; XXX, 33; XXXII, 052; XXXIII, 42. 4. Wherever, in connection with the plea of guilty, a state- ment or confession, whether verbal or written, is interposed by the accused, both i^lea and statement should be considered together by the court ; and if it is to be gathered from the statement that evidence exists in regard to the alleged ofience which will constitute a defence to the charge, or relieve the accused from a measure of culi^ability, the court will prop- erly call upon the judge advocate to obtain and introduce such evidence, if luacticable. XI Y, 5So, 590; XYII, 48; XXYI, 548, 502; XXYIII, 123 ; XXIX, 11, 348; XXX, 073. ^ See views of the Judge Advocate General, relating to the subject of this paragraph, i^ublished in G. C. M. 0. 09, Hdqrs. of Army, 1877. 378 PLEA. 5. It lias not unfrequently happened that enlisted men, charged with desertion, have, in connection with a plea of guilty, made a statement disclaiming having had, in absent- ing themselves, any intention of abandooing the service, and stating facts which, if true, constitute absence without leave only. In such a case the accused cannot in general fairly be convicted of desertion in the absence of an investigation, and the court will properly, therefore, induce him to change his plea to not guilty, or direct this i)lea to be entered and take such evidence as may be attainable, to show what offence was actually committed.^ XXVI, 5G2. G. Statements inconsistent with the plea have not rarely been made in cases like larceny where several distinct ele- ments are required to constitute the crime in law. For exami)le, a soldier will plead guilty to a charge of larceny, and thereupon make a statement disclaimiug the peculiar intent, (animus furandi,) necessary to the offence, thus reallj^ admitting only an unauthorized taking. In such cases the court will properly iu struct the accused that he should change his plea to not guilty, and, if he declines to do so, will prop- erly call upon the judge advocate to introduce evidence sbow- ing the actual offence committed. XXVIIT, G77; XXIX, 658. 7. A court-martial is authorized, in any case, in its discre- tion, to permit an accused to withdraw a plea of not guilty, ^ The views of the Judge Advocate General, as presented in §§ 3-5, have been adopted in the General Orders of the War Department and in nui^ierous Orders of the various military department &c. commands. In G. C. ]\I. O. ', War Dept. 1872, the Secretary of War observes, in regard to two cases of soldiers, as follows: ''The written statemeuts sub- mitted by the accused are contradictory of their pleas of ^ guilty.' The Court should have regarded these statements as neutralizing the eft'ect of their i^leas, and shouki have had the accused instructed as to their legal rights, aud advised to change their pleas with a view to the hearing of testimony. It not unfrequently hai)pens that soldiers do not understand the legal dilierence between absence without leave and deser tion, or are wholly unable to discrimiuate as to the grade of their ofi'enses, as determined by their motives. They thus, sometimes, ignorantly plead guilty and are sentenced for crimes of which tliey may be actually innocent. The pro- ceedings, lindings, and sentences are disapproved." And see G. 0. M. O. 31, War Dept. 187G. PLEA. 379 and substitute one of guilty, and mce versa, or to withdraw either of these general pleas and substitute a special plea. And wherever the accused ai)i)lies to be allowed to change or modify his plea, the court should in general consent pro- vided the application is made in good faith and not for the purpose of delay, and to grant it will not result in unreason- ably protracting the investigation. XXX, G72. 8. Objections to the charges or specifications in matters of form should be taken advantage of by special i^leas in the nature of ^;/ea6' in abatement. Such are objections to the specifications as inartificial, indefinite, or redundant ; or as misnaming the accused, (or other person required to be speci- fied,) or misdescribinghim as to his rank or ofiice; or as con- taining insufticient allegations of time or place, &c. In such cases the objection should be raised by a special plea in abate- ment, in order that errors capable of amendment may be amended on the spot by the judge advocate, and — the plea of not guilty, (or guilty,) being then made — the trial may proceed in the usual manner. Objections of this class, not thus taken, will i)roperly be considered as ivaived hy the idea of guilty or not guilty, and their existence will not then aftect the validity of the proceedings or sentence. V, 577; YII, 234; IX, 518; XY, 117; XIX, GIO; XXIY, 140; XXY, 100; XXYIII, 372; XXX, 288; XXXIY,32; XXX Y, 450; XXXYIII, 654. Where without preliminary objection, the accused pleads guilty or not guilty to a specification, in Avhich he is incor- rectly named or described, such i^lea will be regarded as an admission by the accused of his identity with the person thus designated, and he cannot thereafter object to the pleadings on account of misnomer or misdescription. Y, 577; XY, 117; XXY, 100. 9. Objections to the charges and specifications on account of matter of subHtance, — as that they do not contain the neces- sary allegations, or otherwise do not set forth facts constitut- ing military offences, — should properly he made at the outset of the proceedings by a special plea in the nature of a demurrer, or they will in general be regarded as icaired. So, objections going to the legal constitution or composition of the court, or to its jurisdiction, should also properlj' be specially presented when the accused is first called upon to 380 PLEA IN ABATEMENT — POSSE COMITATUS. plead : valid objections of tbis radical character, however, are not icaivcd if the accused, instead of submitting a special plea, pleads over to the merits, since consent cannot make legal that which is illegal, or, in a criminal case, confer jurisdiction where none exists in law. XIX, 640. [See Court Martial, II § 7 and note.] 10. Facts and circumstances which are properly matters of evidence are not legitimate subjects of pleas j as, for exami)le, circumstances going to extenuate the oftence. Thus held that good conduct of the accused in battle subsequent to the commission of the oftence charged could not properly be pre- sented in the form of a plea. YI, 79. So held that the fact that the charge was preferred through personal hostility to the accused was not matter for i^lea, but, if desired to be taken advantage of, should be offered in evidence. XXXI Y, 554. PLEA IN ABATEMENT. See charge ^ 5, 12. PLEA § 8. POSSE COMITATUS.i 1. Prior to the enactment of s. 15, Act of June 18, 1878, c. 263, it was deemed legal, under the imi)lied authority of s. 27 of the Judiciary Act of Sept. 24, 1780, (now contained in Sec. 787, Eev. Sts.,) for a U. S. marshal or deputy marshal to call, where necessarj^, upon a military force of the United States to assist him in the execution of the i^rocess of the courts of the United States ; and such employment was not unfrequently resorted to, the military being also in general expressly directed by the i)roper superior to comply with the call of the marshal. In the existing state of the law, how- ever, i. e. in view of the legislation of 1878, the army cannot legally be called upon to serve upon a marshal's posse, since 1 u Formerly the posse comitatiis^ which was the strength to prevent felonies, must in a great proportion have consisted of military tenants who held lands by the tenure of military service. If it is necessary for the execution of the law, it is not only the right of soldiers but it is their duty to exert themselves in assisting the execution of a legal i)rocess." Lord Mansfield, C. J. in Burdett v. Abbott, 4 Taunton, 450. POST COMMANT>ER. 381 such service is not ''expressly authorized " by any statute. [See Army— EMPLOYMENT of for civil purposes § G.] 2. Though dicta are to be met with in the authorities look- ing to such a service as legal^ it is clear that the military forces of the United States, cannot, as such, be permitted, in any event, to serve upon the 2^osse comitatus of a sheriff, or other executive official whose function it is to execute the local laws of a State or Territory. XXXVI, 450. 3. While the object of the serving of IT. S. troops on the posse of a U. S. marshal, (where legally authorized so to serve,) is simply to assist and co-operate with him in the enforcement of the i)rocess committed to him for execution, and the commander of the detachment is to consider himself as acting in subordination to the civil officer,^ the troops employed are to be regarded as under the command of their military sui^eriors, and directly responsible to the latter as on other occasions of the performance of military duty and service.2 XXXIX, 458, 577. 4. Officers and soldiers serving on a posse should confine themselves strictly to their legitimate duties. They should refrain from violence and disorder, and guard against any irregularities that might tend to compromise the army with the pubUc.3 XXXYI, 181. POST COMMANDER. 1. A post commander cannot properly allow his post to become an asylum for fugitives from civil justice. XXXVI, 450. 2. Held that the commander of the prison post at Alcatraz Island was authorized to make and enforce all necessary and proper regulations for the safe keeping and government of the military prisoners there confined j that he might, by the use of force, if needful, but using no more force than was necessary, prevent civilians from landing on the Island in violation of the regulations, and put such off the Island who ^ See Atty. Gen. Evarts' Letter of Instructions cited under Army— Employiment of for ciyil purposes § (3. - See the military instructions published in G. O. 90 Hdqrs. of Armv, 1870. ^^ Compare G. O. 29, Dept. of the Gulf, 1874. 382 POST TRADER. had landed there contrary to the same j that, in an extreme case, as where a civilian engaged in aiding a prisoner to escape, and no other means of prevention would avail, he might proi)erly order the party to be fired upon by the guard. XXXII, 525. 3. Where a general court-martial has been convened at a military post by the department commander, the commander of the post is not empowered, in the absence of authority from such superior, to refer cases to the court for trial. Such action has sometimes been taken and acquiesced in, but, (unless specially authorized,) it is irregular and a transcending of his province by the post commander. XLI, 306. See thirty EIGHTH ARTICLE $ 5. FIFTY NINTH ARTICLE § 8. EIGHTIETH ARTICLE ^ 2, 3. ONE HUNDRED AND FOURTH ARTICLE $ 6. ONE HUNDRED AND TWELFTH ARTICLE § 2, 7. COURT-MARTIAL, I § 5, 8. POST TRADER. 1. Sutlers having been finally done away with, from and after July 1, 1867, by the Act of July 28, 1866, c. 299, s. 25, Congress, by Joint Eesoiution of March 30, 1867, conferred authority ui^on ''the commanding general of the army to permit a trading establishment to be maintained," after the above date of July 1, 1867, ''at any military i)ost on the frontier not in the vicinity of any city or town, (and situated at any point between the 100th meridian of longitude, west from Greenwich, and the eastern boundary of the State of California,) when in his judgment such establishment is needed for the accommodation of emigrants, freighters and other citizens : * * * provided that such traders shall be under i:)rotection and military control as camp-followers." By the Act of July 15, 1870, c. 294, s. 22, this statute was repealed and there was enacted in its place the following : ^' That from and after the passage of this Act, the Secretary of War be, and he is hereby, authorized to permit one or more trading establishments to be maintained at any military post on the frontier not in the vicinity of any city or town, when, in his judgment, such establishment is needed for the accommodation of emigrants, freighters, and other citizens j POST TEADER. 383 and the persons to maintain such trading establishments shall be ai^pointed by him : provided that such traders shall be under protection and military control as camp-followers." This i)rovision constituted the existing law on the subject at the date of the adoption of the Eevised Statutes, and is incorporated in the same in Sec. 1113. Further, by the Act of July 24, 187G, c. 22G, s. 3, it has been provided: "That every military post may have one trader, to be appointed by the Secretary of War on the rec- ommendation of the council of administration, approved by the commanding officer, who shall be subject in all respects to the rules and regulations for the government of the army." The Act of 1876, though apparently intended to supersede Sec. 1 113, Eev. Sts., does not necessarily repeal the same. It is believed therefore to be still proper for the Secretary of War, in appointing a post trader, to take into consideration not merely his fitness and accei)tableness as a i^urveyor for the army at a military post, but also the question whether a trading establishment is needed at the post '^ for the accom- modation of emigrants, freighters, or other citizens." ^ XLIII, 239. 2. Under the provision of the Act of 187G, a trader may be appointed, not merely for remote or frontier i^osts, at which only trading establishments could be maintained under previous enactments, but for any military posts, in the dis- cretion of the Secretary of War. XXXIX, G71. 3. The term of the appointment or license of a post trader, not being fixed by the statute, is regulated by the general principle of public law, that where the tenure of a public office or emi)loyment created by Congress is not defined by that body, the same is to be regarded as held at the pleasure of the appointing power.^ XXXIX, 639. ^ That Sec. 1113 is not superseded, in the opinion of the Attorney General, is evident from his opinion of Dec. 11, 1879, published in G. O. 112, Hdqrs. of Army, 1879. And compare oi)inion of the Solicitor General of Feb. 2, 1880, j)ub- lished in G. O. 11 Id. 1880. 'Ex parte Hennen, 13 Peters, 230. It is held by the At- torney General in an opinion of May 19, 1877, (XV Oinns. — ,) that the appointment of a post trader is a mere license revo- cable at the ])leasure of the Secretary of War ; the concur- rence of the post council and post commander not being required for the removal, as they now are (by the Act of July 24, 1870) for the appointment, of the trader!^ 384 POST TRADER. 4. A post trader is not, under the Act of 1876, and was not under tliat of 18G7 or 1870, amenable to the jurisdiction of a military court in time of peace. The earlier statutes assimilated him to a camp-follower, but, strictly and i^rop- erly, there can be no such thing as a camp follower in time of peace, and the only military jurisdiction to which a camp follower may become subject is that indicated by the God Ar- ticle of War, viz. one exercisable only "in the field" or on the theatre of war. Nor can the Act of 1870, In providing that post traders shall be '' subject to the rules and regula- tions for the government of the army," render them amenable to trial by court martial in time of peace. The subjection referred to in the Act is apparently only to the body of ad- ministrative directions known as the Army Eegulations. [See § 6 infra.] If, however, the Articles of War are intended to be included, the amenability imposed is simply that fixed by the particular Article applicable to civilians emi^loyed in con- nection with the Army, mz. Art. 63, which attaches this amenability only in time of war and in the field. Thus, though post traders might i^erhaps become liable to trial by court martial if employed on the theatre of an Indian war, as persons serving with an army in the field in the sense of that Article, they cannot be made so liable when not thus situated, and, as a general rule, the only adequate remedy in the event of serious misconduct by a trader in time of x^eace would be the summary withdrawal of his appointment or license by the Secretary of War. XXXIX, 395. [See note to § 3, supra.] 5. Unlike the sutler under the old law, the post trader has no lien upon the pay of soldiers for articles sold to them on credit. Their pay cannot legally be in any part retained by the company commander to reimburse the trader, nor can it be withheld by the paymaster for such purpose against their consent. If a soldier in debt to the trader consents to the paymaster's delivering his pay in whole or in part to the trader at the pay table, the paymaster will be protected in thus paying the same; the soldier being viewed not as thus assigning his pay, (which would be in violation of law — Sec. 1291, Eev. Sts.,) but as himself receiving the same and turn- ing it over to the trader in and by the same act. XXVII, 282, o59 ; XXIX, 229, 231 j XXXI, 055. So, a paymaster is not POST TRADER. 385 authorized, without the express consent of the soldier, to de- duct from the pay due him on a ^^final statemenV an amount admitted to be due by him to a post trader. XXIX, 231. An amount due by an officer or soldier to a trader cannot legally be forfeited or stopped for the benefit of the lattei by a sentence of court-martial. XXVII, 422; XXXI, 37G. 6. The Army Regulations of 1803, applicable to sutlers, were declared by the Secretary of War, in a Circular issued from the War Department, dated June 7, 1871, to be not ap- l^licable to i)ost traders, and it was added : ^'no tax or burden in any shax)e will be imposed uj)on them." Subsequently, however, to the passage of the Act of July 24, 1876, in which it is provided that traders shall be subject to the rules and regulations for the army, this class of i^ersons were, by a Circular issued from the Headquarters of the Army, dated July 31, 1878, required to be ^'assessed and held to pay, at a rate to be determined by the Post Council of Administration, not exceeding ten cents a month for every officer and enlisted soldier serving at the post — the monthly average number of such i)ersons to be determined equitably by the Council — for the benefit of the i)ost fund, as required by Gen. Orders Xo. 24, May 1878,^ from this office." Advised that this imposition of a pecuniary mulct upon a civilian, not subject to the legal liabilities of a sutler, was scarcely within the i)rovince of an administrative regulation, and that the same could be enforced with entire legality only by authority of statute.^ XLIII, 157, 239. 7. It was held by Attorney General Gushing in 1855 \ that a sutler employed at a military post could not legallj^ be re- quired by the authorities of a State to take out a license to enable him to make sales to officers or soldiers of the army^ or to pay a tax on the articles kept by him at the post for making such sales ; and this on the ground that ^' the supply of goods to the officers and soldiers of a post by the post sut- ^This Order, in adopting the recommendation of a Board to that efiect, had already- in substance directed the assess- ment of this tax. ^A difierent conclusion is arrived at in an opinion of the Solicitor General, i)ublished in G. J. 11, Ildqrs. of Army, 1880. 3 VII Opins. of Attys. Gen. 578. And compare IV Id. 462. 25 D 386 POST TRADER. ler is one of the means authorized by Congress in the exer- cise of the war i^ower intrusted to it by the Constitution." This oi:)inion, however, further holds, (to cite from the head- note:) " But sutlers may be comi)elled to pay license if they enter into general trade within the State." So, in a case of a trader at a military post in a Territory, by whom liquor was kept for sale as a part of his stock, who addressed to the Secretary of War an inquiry as to whether he could legally be compelled by the Territorial authorities to pay a tax for a license to sell liquor, held., that, inasmuch as the business of post traders extends to the making of sales to civilians, — their establishments having originally been authorized '^ for the accommodation of emigrants, freighters, and other citi- zens," and their trade having never been subsequently re- stricted to i^ersons connected with the army, — they could in general legally be required by the local authorities of the State or Territory to take out and pay for licenses in the same manner as other merchants engaged in similar trades ; ^ but remarlced that the question of the legality of such a tax was rather one for the local courts than for the Secretary of War. XXX, 177; XXXYI, 595; XXXIX, 395 ; XLI, 306 ; XLII, 83; XLIII, 155. 8. The mere fact that a post trader carries on business on a military reservation in a Territory cannot, (in the absence of any provision in the organic act relieving him therefrom,) affect his liability to be taxed by the civil authorities ; nor can such liability be affected bj^ the tiict that he carries on business on a military reservation within a State, unless ex- clusive jurisdiction over the same has been ceded to or reserved by the United States. XLIII, 155. [See Civil Process § 4 ; Tax § 3.] 9. Held that a post trader duly appointed for a military post might proi)erly be authorized to erect on the post reser- vation, on a site to be selected by the post commander, such buildings as were necessary or desirable for his business. ^ This view was concurred in by the Department of Justice. See opinion of the Solicitor General published in G. 0. 11, Hdqrs. of Army, 1880. Also — on the point that the law still recognizes the civil branch of the business of traders — see the opinion of the Attorney General, published in G. O. 112, Hdqrs. of Army, 1879. POST TRADER. 387 XXXIITj 453. And held also that, on liis appointment or employment being terminated, be wonkl proper! 3^ be allowed a reasonable time to remove such buildings.^ XLT, 122. 10. Held that a post trader, whether appointed by the anthority of the Act of July 15, 1870, (Sec. 1113, Eev. Sts.,) or of that of July 24, 187G, was not — inasmuch as he did not exercise a public function or act for or represent the United States in any particular — a ^'i:)erson holding a commission or appointment under the United States," in the sense of Sec. 1854, Eev. Sts., and was therefore not ineligible to be a mem- ber of the legislature or to hold office under the government of a Territory. XLII, 46. 11. A post trader cannot legally trade with Indians in the Indian country without being specially licensed therefor ac- cording to the provisions of Sec. 2129, Eev. Sts. XLII, 400. There is nothing in the appointment or office of a post trader from which there can be imi^lied any special authority to trade with Indians, or which can exempt him in any measure from the application of the laws, (see Tit. XXYIII, ch. 4, Eev. Sts.,) I)rohibitiug or restricting such trade.^ So where a post trader had been authorized, (under Sec. 2139, Eev. Sts.,) to keep liquor at a military post in the Indian country for the pur- looses of sale, under regulations, to officers and soldiers, held that the authority could not operate as a license to make sales of the same to Indians. XLI, 544. 12. Held that a i)ost trader could not, against his will, be compelled hy the post council or post commander to sell spir- ituous liquors. Where a trader refuses to keep and sell any particular article or articles which, in the opinion of the coun- cil and commander, he should trade in, the only remedy is by an appeal to the Secretary of War, who, if he deems the re- fusal unreasonable, may cancel the trader's license. XLIII, 106. ^See these conclusions concurred in, in a subsequent opin- ion of the Attorney General, in XIV Opius. 125. - See extracts from the contirmatory opinion of the Attorney General, published in G. O. 112, Hdqrs. of Army, 1879. 388 POWER OF ATTORNEY — PRESIDENT. POWER OF ATTORNEY. A contractor having a claim against the United States, execnted a power of attorney to a party, (a lawyer,) author- izing him to represent him in prosecuting his claim before the War Department, &c., and to receive for him payment of such amounts as should be allowed him. The power was expressed to be "irrevocable,'^ but did not in terms A^est the attorney with an3' property or interest in the claim, nor did it appear from the relations of the i)arties or otherwise that any such interest existed. Subsequently, and before the allowance of the claim, the claimant, by a second j)ower, expressly revoked the former power and substituted another person as attorney in the place of the party originally constituted. Held that the first power was not in itself a power coupled with an interest; that the fact that fees were probably to be earned by the attorney did not, (in the absence of a si^ecial contract making the same a lien ujjon the amounts authorized to be received under the i)ower,) constitute an interest therein;^ that the word "irrevocable," as em^doyed in the power was under the circumstances without legal significance or effect ; ^ that such power was therefore revocable at the pleasure of the claimant; and that the attorney substituted by the second power would accordingly properly be recognized at the War Department.^ XXXI, 164. See contract § 20. PRESIDENT, I— AUTHORITY TO COHVENE GENERAL COURTS MARTIAL. 1. The President is empowered to convene general courts- martial, not merely in the class of cases specified in the 72d Article of War, (viz., where a military officer, thereby author- ized to convene such a court, is the "accuser or prosecutor" of an officer in his command whom it is desired to bring to ^ See Bristol's case, XI Opius. of Attys. Gen. 7. 2 Pratt V. United States, 3 Ct. CI. 117 j Hunt v. Eousmanier's Admrs. 8 Wheaton, 174. ^ CompaTe oi)inion of the Attorney General of February 7, 1879, (XVI Opins. .) PRESIDENT, II— AUTHORITY OVER COURTS MARTIAL. 380 trial.) but, generally, and in any case, by virtue of his autlior- ity as Commander in Chief of the Army. As sue]), he is authorized to give orders to his subordinates, and the con- vening of a court martial is simply the giving of an order to certain officers to assemble as a court and exercise certain powers conferred upon them when so assembled by the Arti- cles of War. [See Court Martial, I § 1.] This general power has been exercised in repeated instances by the Presi- dent since the formation of the government. Indeed, if the same could not be exercised, it would be impracticable, in the absence of an assignment of a general officer to command the Army, to administer military justice in a considerable class of cases of officers and soldiers not under the command of any department, &c., commander, as a large proportion of the officers of the general staff for example.^ XXXIIT, G03. 2. A convening of a general court martial nominally by the Secretary of War is in law a convening by the President, and therefore as legal as if the President himself had signed the order. IX, 44. [See Secretary of War.] PRESIDENT, II— AUTHORITY OVER THE PROCEEDINGS AND SENTENCES OF COURTS MARTIAL. 1. In cases tried by general courts martial convened by himself, either under his general authority' as commander-in- chief, (see President, I,) or as provided in the 72d Art. of War 5 as well as in cases of sentences imposed upon general officers and of sentences of death or dismissal adjudged in time of peace, (see Arts. 105, 106 and 108;) as also in cases submitted to him for action in time of war under Art. Ill, — the President acts as Eeviewing Authority, and may approve * The authority of the President as Commander-in-chief to institute general courts martial lias been in fact exercised from time to time, from an early i)eriod, in a series of cases, commencing with those of Brig. Gen. Hull, Maj. Gen. Wilkin- son, and Maj. Gen. Gaines, tried in 1813-1810, and including that of Bvt. Maj. Gen. Twiggs, tried in 1858. His authority in this particular has recently been in substance affirmed by the Judiciary Committee of the Senate, in Eeport Xo. SdS, dated March 3, 1879, Forty Fifth Cong. 3d Session. [A single member of the Committee apparently dissented, in a subse- quent report of April 7, 1871), Mis. lioc. Xo. 21, 46th Cong., 1st Ses.l 390 PRESIDENT, III — AUTHORITY TO RESTORE TO ARMY. or disapprove in whole or in part the i^roceedings or senteuce, or, in approving, mitigate the punishment. But when final action has been taken by him in any of these cases, his func- tion as reviewing or confirming authority is exhausted. Where indeed he has approved or confirmed a punishment, and the same remains in any part unexecuted, he may of course exer- cise the quite distinct power of pardon ; but an approval or disai^proval once given by him, and duly notified to the accused, — though his action may afterwards be discovered to have worked an injustice, — is beyond his power to revise, reverse, or modify. XXXVIII, 104; XLII, 91. 2. So, where a legal sentence adjudged by a court martial has once been duly executed^ the same is irreversible and can- not be rescinded or modified by virtue of any executive authority of revision or pardon vested in the President. However severe or unjust such a sentence may have been, or whatever irregularity, (short of an absolutely fatal defect,) may have ch; Id. II §8; Discharge § 13; Xew Trial; Pardon § 4; IIeview- ING Authority § 8 ; Sentence § 15 — and authorities cited in notes to same. PRESIDING OFFICER OF THE COURT. 391 retired, or of the acceptance of his resignation, must, (after notice,) be quite futile and ineffectual. An order i^urporting to rerolce a previous order by Avhich an officer has been legally detached from the military service is a simple nullity.^ XXXY, 46G5 XXXVir, 451; XXXIX, 474; XLl, 35, 391,011. As to the authority of the President in regard to other subjects, see, especially, — Fourth Article § 3 ; One Hun- dred AND Sixth Article ; One Hundred and Eleventh Article ; One Hundred and Twelfth Article §1,4; Appointment § 3, 5, G, 9, 10, 11; Ar3iy — Employment of FOR CIVIL PURPOSES § 1, 2, 3, 4, G; Army Eegulations § 1, 3, notes ; Cadet § 9 ; General Staff ; Habeas Corpus § 1, 2; Law of War § 1; Martial Law § 1; Military Eeservation § 1, note; Pardon; Retirement § 3, G; Secretary of War; Statutes— Construction of, II; War Power. PRESIDING OFFICER OF THE COURT. 1. Xo special rank or qualifications are required for the position of i)resident of a military court. In our practice the president is not api^ointed as such ; he is simply the senior in rank of the members present, and he presides by virtue of his seniority alone. If the senior of the officers detailed in the convening order is not i)resent with the court at the original organization, the next senior i^resent becomes presi- dent ; so, if the officer who i)resided at the beginning of a trial is at a subsequent stage of the proceedings relieved or compelled to be absent by sickness, &c., the next ranking officer present presides as a matter of course ; and the senior officer i^resent with the court at the termination of the trial authenticates the proceedings as president. XXX, 21G. 2. While a special authority — that of swearing the judge advocate — is devolved upou the president of a military court by statute, (the 85th Article of War,-) such officer has, in other respects — as in performing the usual duties of a pre- siding officer, in authenticating the proceedings with his sig- nature, and in communicating with the convening officer or ^ See, on this subject, authorities cited in notes to Dis- missal, I § G ; Id. 11 § 8 ; IIESIGNATION § 2, note. ^The further function devolved upon him by Art. 52 is not known to have ever been exercised in our service : the Article itself is a dead letter, as is also Art. b'6 in ])ari materia. 392 PRISONER OF WAR. other commander, uo original autliority but acts simply as the representative and ^' organ" of the court.^ XXYIII, 678 -J XXX, 240. 3. In deliberations on questions raised n\)OVL a trial, as well as in the finding and the adjudging of the sentence, the presiding member is on a i^erfect equality with the other members. [See par. 888, Army Eegulations.] He has no casting vote, nor, if the vote is even, does Ms vote have any greater or other weight or effect than that of any other mem- ber. XXX, 314. 4. The president of a military court has no command as such. As president he cannot give an order to any other member. As the organ of the court he gives of course the directions necessary to the regular and proper conduct of the proceedings; but a failure to comply with a direction given by him, while it may constitute "conduct to the prejudice of good order and military discipline," cannot x^rop^i'^y he charged as a " disobedience of a lawful command of a suioe- rior officer," in violation of Article 21. XXX, 240, 314. 5. For the president of a court martial to assume to adjourn the court against the vote of the majority of the members, would be an unauthorized act and a grave irregularitj-, prop- erly subjecting him to a charge under the 62d Article.^ XXX, 248. See court MARTIAL, I $ 17. REVISION $ 6. PRISOHER OF WAR. I — Prisoners taken erom the Enemy. 1. An engineer captured while doing duty on a steamer of the enemy, held i)roperly detained as a prisoner of war j civil employees of the enemy serving with its armj' in the field being regarded as on the same footing in this respect with the soldiers of such army. VI, 542. 2. Where certain persons, apprehended, while engaged ap- ^See par. 888, Army Eegulations. The language of this regulation is taken from the order of Secretary Crawford in his review of the case of Bvt. Lt. Col. Backenstos, in G. O. 14, War Dept., 1850. ^ See case of Backenstos, G. 0. 14, War Dei^t. 1850. PRISONER OF WAR. 393 parently as partisans in a raid from Kentucky into Indiana, were held to trial by a civil court of the latter State for rob- bery, and the confederate agent for the exchange of inisoners of war made thereupon official application that they should be treated and exchanged as such prisoners, on the ground that they were confederate soldiers acting under the orders of their military superiors — advised, in view of the serious doubt as to their real status, that they be left to have their offence passed ujjon by the court which had assumed j urisdiction of their case, and by which the defence that their operations were legitimate acts of war could be i)roperly investigated.' II, 591; Y,3J:J:. 3. Held that the fact that an officer or soldier of the enemy was captured as a prisoner of war did not exempt him from the jurisdiction of a military commission of the United States for a crime in violation of the laws of war committed during the war i^rior to his capture. YlII, 529. 4. Where a prisoner of war, held with other prisoners at a prison camp within a State in which the civil courts were in operation, killed one of his fellow prisoners, advised that the Government might in its discretion turn him over for trial to the State authorities, or exchange him under the cartel and leave him to be tried by the confederate authorities. XIII, 496. 5. The violation of his parole by a paroled prisoner of war is an ofi'ence against the common law of war and punishable with death.- VI, 20. 6. Where certain soldiers of the enemy's army, having been taken prisoners in Virginia ui^on Lee's surrender, were released on parole, on condition of their returning to their homes, held that this parole did not authorize them, in the absence of special authority from the U. S. Government, to come within our lines and into the State of Mar^iand, although that State had been their place of residence before the war ; and that, in actually coming into Maryland, they were chargeable with a violation of their parole.^ And Jieldj further, that a citizen ^ See X[ Opins. of Attys. Gen. 240^ 2 See G. O. 100, AVar Dept., 18G3, § 124. (Lieber's Instruc- tions.) ^ In XI Opins. 207, Atty. Gen. Speed says of these paroled prisoners that they "cannot be regarded as having homes in the loyal States. * * * As belligerents their homes were, of necessity, in the territory belligerent to the Govern- ment of the United States." 394 PRISONER OF WAR. of Maryland, in harboring and relieving them after coming into that State, was chargeable with an offence under Art. 45. XII, 400. [See Forty Fifth Article § 1.] II — Prisoners taken by the Enemy. 7. Held., in the absence of any stipolation to the contrary in the cartel of exchange,^ that a i)risoner of war of our army, released on parole by the enemy, might legally be i)ut on duty as one of the post guard at a post not in the field or threatened by the enemy.^ XXI, 59-}. 8. A x^risouer of war, on being j^aroled, is not necessarily bound to return to the regiment or other command to which he was attached upon capture, or subject, if he does not re- turn, to be treated as a deserter. In the absence of any spe- cial order given him by competent authority, he is required only to abide by the existing orders in regard to paroled pris- oners in general. XXXIX, 339. 9. Where an officer of our army, while on trial or awaiting sentence, is taken prisoner by the enemy, and a sentence of dismissal adjudged by the court and duly approved is not officially communicated to him till, upon being exchanged, he has returned to his regiment, he is entitled to be treated and paid as having been in the U. S. service up to the date of such notification. And so of an officer dismissed by order, or a soldier dishonorably discharged by sentence under simi- lar circumstances.^ XII, 230 ; XIII, 589. 10. Officers and soldiers of our army taken x)risoner by the enemy and released on parole, are, (in the absence of any statutory provision to the contrary,) to be regarded, while occupying this status, precisely as officers and soldiers on or- dinary active duty, so far as concerns their right to i^ay. I, 385. ^ See X Opins. of Attys. Gen. 357. 2 See G. O., (X. & 1. G. O.,) of Feb. 14, 1814; do. 100, War Dept. 18C;5, § 130. (Lieber's Instrutions.) ^Xote the provision of the Act of 1814, now incorporated in Sec. 1288, Kev. Sts., entitling certain olficers and soldiers to be paid as such during tlieir captivity when made jirison- ers of war bv the euemv. And see Jones v. United States, 4 Ct. CI. 197'-, Phelps r.' United States, Id. 2(U)— adjudicated cases of oliicers dismissed wliile prisoners of war and claim- ing pay under the statute. PEOCEEDIXGS AT LAY>' AGAINST OFFICEE, &C. 395 11. While it is laid down by the authorities^ that a prisoner of war is, strictly, justified in enlisting in the service of the enemy only by a well founded ai^x^rehension of immediate death, yet where soldiers of the federal army, while subjected, when prisoners in the hands of the enemy, to extreme priva- tion and suti'ering by which their lives were imperilled, were induced, solely in order to find means of escape from such desperate situation, to enlist in the enemy's army, advised that such soldiers, on subsequently surrenderiug to or being cap- tured by our forces, should not as a general rule be treated as deserters but should be returned to duty with their regiments without punishment. XIV, looj XYI, 40, 271. But where it appeared that certain soldiers of our army who when prisoners of war had enlisted in the enemy's service, had not attempted to escape when they might have done so, but had voluntarily remained and fought in the ranks of the enemy's army till forcibly cai^tured by our forces, advised that their representations to the effect that they had joined the enemy to escai)e cruel treatment as prisoners of war, should not be allowed to weigh in their favor, but that they should be brought to trial for the crime of desertion to the enemy. XYI, 136. See order, I § 2, 4. PROCEEDINGS AT LAW AGAINST OFFICER, &C. 1. Prior to the passage of the Act of June 22, 1870, c. 150, " to establish the Department of Justice," — (see the provis- ions of sees. 11, IG and 17 of the same, as now incorporated in Sees. 189, 361, 363, &c., Rev. Sts.,) the head of an exec- utive department was held to be authorized, under the gen- eral i)rovision on the subject of the Act of Feb. 26, 1853, to retain such counsel and avail himself of such professional advice as he might deem expedient, and upon such terms as might be agreed upon as reasonable and proper. Under this provision, — in many cases arising during the late war and subsequently, — counsel were employed directly by the Secre- tary of War, or authorized by him to be employed, to defend officers, soldiers, and in some cases civilians serving with the JEespublica r. McCarthy, 2 Dallas, 86; United States v. Tigol, Id. S4:(j. And comi^are United States v. Griner, 4 Phiiad. 3'J{jj 401. 396 PROCEEDINGS AT LAW AGAINST OFFICER, &C. army, in suits and prosecutions instituted against tbem, both in State and United States courts, for arrests made and acts done in the performance of duty under orders. In such cases, where the iDarty was shown to have acted within the scope of his a^uthority, or in the honest discharge of his duty under the orders of a proper superior, (and, in cases of arrest, upon probable cause and without undue violence,) it was usually recommended by the Judge Advocate General that his de- fence be assumed by the United States, through the U. S. District Attorney, or some other counsel retained by the Sec- retary of War or authorized to be employed by himself, — with the further suggestion that the counsel be instructed to remove the case, when commenced in a State court, to a court of the United States, if practicable under the existing statute law. Where the party was shown to have exceeded his au- thority, or to have been actuated by personal hostility, or to have disregarded the directions of par. 1461 of the Army Regulations and not reported the case with sufficient i^rompti- tude, his api^lication for counsel was commonly recommended to be denied. I, 348; II, 16; III, 105 ; VII, 45; VIII, 51, 108, 130; X, 576; XI, 201; XIII, 509; XVI, 565; XVIII, 290; XXI, 197; XXIII, 121; XXIV, 135; XXVI, 248, 521, 536 ; XXIX, 458 ; XXX, 83 ; XXXIV, 65. In some few cases where judgments small in amount were obtained against officers on account of acts performed in the conscientious dis- charge of i^ublic duty, it was recommended that, instead of requiring the parties to seek relief from Congress, the amounts be defrayed out of the contingent fund of the W^ar Depart- ment. II, 16 ; XXVI, 536 ; XXXVII, 384. 2. But, by the Act of 1870, above indicated, the whole mat- ter of the employment of counsel in cases of a public nature, and the settlement of their compensation, has been taken from the chiefs of the other executive departments and trans- ferred to the Attorney General. Sec. 189, Eev. Sts., (derived from Sec. 17 of said Act,) provides generally that — " Xo head of a department shall employ attorneys or counsel at the ex- pense of the United States ; but when in need of counsel or advice shall call upon the Department of Justice, the officers of which shall attend to the same." The subject is regulated in detail by Sec. 356 to 367, Rev. Sts. ; and now when an offi- cer or soldier gives notice, as required by par. 1461, Army Regulations, of a suit or i^rosecution commenced against him PEOCEEDINGS AT LAW AGAINST OFFICER, S.'C. 397 for an act done in the due performance of a military duty, and applies to be defended at tlie expense of the United States, the Secretary of War, if he deems the case to be one iu which snch action will be just and expedient, will refer the papers to the Attorney General for the proper action. The action of that official will in general i)robably be mainly de- termined by the consideration whether the United States is sufficiently ^Hntercsted^'' in the case, (see Sees. 3G1, 3GG, Eev. Sts.,) to justify the government in assuming the expense of its defence. XXXIX, 310; XXXVIII, 09. 3. In a case in which, in 1873, a judgment was obtained in a Territorial Court against two officers, for an act performed in good faith and in the zealous and conscientious discharge of what was believed to be a i)ublic duty devolved upon them by an order of the department commander, and this judgment was subsequently, (in 1877,) affirmed by the Suj^reme Court of the United States, — the officers having been defended by counsel assigned to defend them by the Department of Jus- tice, — advised that, notwithstanding the fact that their act had been thus determined to have been illegal, an application made by them to Congress for an appropriation to defray the amount of the judgment, would properly be favored by the Secretary of War. ^XLI, 433. 4. By the Acts of March 3, 18G3, c. 81, s. 4 ; May 11, 18GG, c. 80, s. 1; and March 2, 18G7, c. 155, the order or authority of the President is made a defence in any court of the United States or of the States, to any prosecution or suit instituted against an officer or soldier of the army, for an arrest, tres- pass, or other act made or done by such authority, during the late war. Under these Statutes it would appear that an offi- cer or soldier could not be made liable to punishment or damages for any legitimate act j^erformed during the war in the line of his duty or under the orders of a proper sui^erior: otherwise, however, as to injuries or Avrongs done in the ab- sence of legal orders, or on the personal responsibility of the individual.! XXX, 4G2. ! See, as illustrating this subject the recent decision of the Supreme Court in Beard v. Burts, 5 Otto, 434. In the case of In re Murphy, AVoolworth, 141, it was held by Justice Miller that the Act of 18G7 was ex post facto and nnconstitutional, in so far as it assumed to validate punisli- ments imposed by military courts which would otherwise be invalid. 398 .' PROFESSOR— PROMOTION. PROFESSOR OF THE MILITARY ACADEMY. Sec. 1330, Kev. Sts. provides that — "each of the professors of the Military Academy whose service at the Academy ex- ceeds ten years shall have the pay aud allowances of colonel." Sec. 4 of the Army Approi^riation Act of June 23, 1870, amends this section by inserting, after the word '' service," the words — "as professor." Held that professors who, at the passage of the last statute, were being i^aid as colonels because of hav- hig served at the Academy ten years, but who had not yet served there as professors for that period, could not legally continue to be so paid, but were entitled to be paid as lieu- tenant colonels only until they had completed the term of special service contemplated by the Act of 1879. XLII, 375. PROMOTION. 1. Par. 19, Army Eegulations, states tlie general rule in regard to promotion in the Army, as follows : — "All vacancies in established regiments and corps, to the rank of colonel, shall be tilled by i^romotion according to seniority." Thus a senior first lieutenant, upon a vacancy occurring in the grade of cax^tain in his regiment, is entitled, (if not disabled or in- comi^etent,) to be promoted thereto. But where, in a case of such a vacancy, a civilian, (a dismissed officer,) was nominated (illegally, i. e., without authority of Congress,) to the captaincy in the stead of the senior first lieutenant, but was thereupon confirmed by the Senate and commissioned, Jield that the lieu- tenant was without remedy except such as he might obtain by application to Congress. XXIX, 47. 2. Par. 20 of the Army Pegulations declares that — " Pro- motions to the rank of Captain shall be made regimentally." Section 1204, Eev. Sts., provides that — "Promotions in the line shall be made through the whole Army, in its several lines of artillery, cavalry, and infantry respectively." Held that this statute simply means that promotions shall be made within the branches of the service of the respective ofiicers, i. e. that infantry officers — for example — shall be promoted in the infantry arm, and not out of that arm and into another arm J and that it does not modify the rule laid down in the PROSECUTOR. 399 Eegulation but is declaratory of the same. Sec. 1204 is in- deed not ne^Y law, but originates in a similar provision of s. 5, c. 108, Act of June 20, 1812, viz.: ''From and after the passage of this Act, the promotions shall be made through the lines of artillerists, light artillery, dragoons, riflemen and infantry, respectively, according to established rule.'''' The es- tablished rule was that contained in a regulation of May, 1801, which xH-escribed, among other things, that — "Promotions to the rank of Cai^tain shall be made regimentally " — precisely the language retained in the existing regulation.^ Of this regulation, therefore, Sec. 1204 is declaratory- in the same manner as the Act of 1812 was declaratory of the original regulation of 1801. XXXYII, 425. 3. The Act of June 18, 1878, sec. 13, in i^rohibiting for a time i)romotions and api)ointments in the army, added the jjroviso — "That this limitation shall not apply to the line of the army below the rank of Captain." Held that the effect of this provision was to except subalterns from the general rule established by the statute, and that the promotion of a first lieutenant to a caj^taincy during the pendency of the i)ro- hibition was therefore legal. XLI, 400. 4. An officer who is senior in his grade in his regiment is ineligible, while under a legal sentence of suspension from rank, to promotion to a vacancy occurring in a liigher grade pending the term of his suspension. Upon such vacancy, the next senior officer becomes entitled to the promotion in his stead. XXXIII, GO. See APPOINT^IENT $ 7. ASSISTANT SURGEON $ 1. PARDON ^ 7. SUSPENSION ^ 3. PROSECUTOR. Other than the judge advocate, who by the 90th Article of War is "required to prosecute in the name of the United States," our military law and practice recognize no official prosecutor. The party who is in fact the accuser or the pros- ecuting witness, is, in important cases, not unfrequently per- mitted by the court to remain in the court room and advise See Xiy Opins. of Attys. Gen. 164. 400 PROTEST — PUBLIC PROPERTY. with tlie judge advocate during the trial, if the latter requests it; and in some cases he has been allowed to be accompanied by his own counsel. If such i^arty is to testify, he should ordinarily be the first witness examined: this course, how- ever, is not invariable. II, 1 ; XXIX, 34. PROTEST. Where the majority of the members of a court-martial have come to a decision upon any question raised in the course of the proceedings, or upon the finding or sentence, no individ- ual of the minority, whether the president or other member, is entitled to have a protest made by himself against such decision entered upon the record. The conclusions of the court, (except in cases of death sentences, where a concur- rence of two- thirds is required,) are to be determined invari- ably by the vote of the majority of its members, and it is much less important that individual members should have an opportunity of publishing their personal convictions, than that the action of the court should appear ui>on the formal record as that of the aggregate body, and should carry weight and have effect as such.^ XI, 203; XXV, 542. Xor can a protest, (against the finding or otherwise,) by a minority of the members, be api)ended to the record, on a separate paper. XXXVI, 264. PUBLICATIONS BY OFFICERS. See sixty SECOND ARTICLE ^ 5. STATEMENT § 5. PUBLIC PROPERTY— DISPOSITION OF, &C. 1. The Constitution — Art. IV, Sec. 3 § 2 — provides 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." The scope of this provision is most comprehensive 5 the authority conferred thereby upon the legislative branch of the government being ^ See Simmons § 409 j Hough, (Precedents) 703, note 4. PUBLIC PROPERTY — DISPOSITION OF, &C. 401 held to extend from the formation of a territorial government to the matter of the sale of a small amount of personalty. That neither land nor any interest in land of the United States can be sold or otherwise disposed of by the head of an executive department or other executive ofQcial or by a mlli- itary officer^ without the authority of Congress, is settled law.^ YII, 404; XXIII, 135; XXX, 005; XXXV, 307; XXXYI, G73 ; XLII, 283. In the absence of such authority, the lands of the United States,, whether held by original i)roi)rietorship, or acquired by purchase or gift, or by conquest, cannot, even for a ijurely benevolent or religious purpose, be given away any more than they can be transferred for a valuable consideration. XXXIX, 337. Nor, (without such authority,) can they be conveyed temporarily by lease., whether for a short or long term.2 XXXII, 2, 042, XXXIX, 330; XLII, 230. 2. Xor, without authority from Congress, can an executive department or officer convey away any usufructuary interest in land of the United States. Thus it has been repeatedly held by the Judge Advocate General that the Secretary of War, (or a military commander,) was not empowered, of his ^ This fundamental rule of our i:)ublic law is exi^ressed by Attorney General Hoar, (XIII Oi)ins. 40,) as follows : '' I am clearly of opinion that the Secretary of War cannot convey to any i^erson any interest in land belonging to the United States, except in pursuance of an Act of Congress expressly or impliedly authorizing him to do so." And see United States v. Xichols, 1 Paine, 040, (cited infra ;) Seabury v. Field, McAllister, 1 ; United States v. Hare, 4 Sawyer, 053, 009. ^ See Friedman V. Goodwin, 1 McAllister, 148, where a lease made, by the post commander at San Francisco, of a part of a " government reserve," though approved by the military governor of the then Territory, and also by the Secretary of the Interior, was held void because not authorized by Con- gress. The Court declares the "utter inipotency of any attempt by an officer of the government to alien -auj land, the property of the United States, without the authority of an act of Congress"; adding that "the President with the heads of the departments combined " could not effect such an object. And see IV Opins. of Attys. Gen. 480; IX Id 470; XIII Id. 40; United States v. Hare, 4 Sawyer, 070-1. In the last case the Court say : " The Secretary of the Treasury cannot execute or approve of a lease of any property belong- ing to the United States without special authority of law." 20 D 402 PUBLIC PROPERTY own authority, to grant a right of way over a military reser- vation to a railroad company or other corporation, (XXXI, 237; XXXiy, 197, 470; XXXY, 457, 554; XXXVI, 207;) and in jiumerous statutory euactments such a right has been expressly given by Congress as the only authority competent for the puri^ose. And such rights when given can be exercised only within the terms of the grant. Thus where by an Act of Congress there was granted to a railroad company a limited and defined right of way across a military reservation, (occupied by a military i)ost,) held that the company was authorized simply to construct a track or roadway, and was not empowered to put up depots, stock yards, cattle pens or other erections upon the land, or to appropriate land otherwise than for the roadway.^ XXXV, 457 ; XLI, 214; XLII, 187. So held that the Secretary of War could not, of his own authority, grant, in consideration of the payment of toll to the United States, a right of way over a Bridge belonging to the United States. XXXI, 136; XXXVIII, 41. So held that the Secretary could not legally grant to a comj)any or individual the right to erect and maintain for an indefinite period a hotel on the military reservation at Sandy Hook.^ XXXVIII, 351. So held that the Secretary would not be authorized to transfer a lot belonging to the United States in Washington to the Commissioners of the District of Co- lumbia for the erection of a hospital. XXXVI, GGS. So held that neither the Secretary of War nor a department com- mander could grant to an individual or individuals the exclu- sive right to use for an indefinite i>eriod certain water i^ower belonging to the United States, (XLI, 136 ;) nor the exclusive right to mine the soil of a military reservation for a certain term of years, (XLI, 37 ;) nor a similar right to make and ^ See this oj^inion affirmed by the Attorney General in XIV Opins. 135. ^ See confirmatory opinion of the Attorney General of November 22, 1878, (XVI Opins. — .) In this case there was the further objection that the State of Xew Jersey, in ceding to the United States jurisdiction over the premises, by deed of March 10, 1846, had expressly declared that the grant was ^'for military purposes;" adding — ''and the said United States shall retain such jurisdiction so long as the said tract shall be applied to the military or i^ublic puri)oses of the said United States, and no longer." PUBLIC PKOPERTY— DISPOSITION OF, &C. 403 maintain for an indefinite period ditches tbrougli a portion of such a reservation for the purpose of irrigating the lands of private parties, (XXXVIII, 232;) nor the right annually to enter upon and occupy a military reservation and cut and possess the hay crop growing thereon,^ (XLII, 128;) nor the right permanently or indefinitely to occupy and use a portion of a reservation for a burying ground. XXXIX, 337. 3. Reldj however, that a distinction was to be observed between a grant of a usufructuary interest in land and a revocable license^ not involving a transfer of such an in- terest.2 XXXIII, G57; XXXIV, 196; XLIII, 278. Thus held that the Secretary of War would be authorized to per- mit a telegraph company to erect i)osts upon a military reservation and attach to the same telegraph wires, subject to their being removed at the will of the government if found to interfere with the purx>oses for which the reservation was estabUshed. XXXVIII, 591. So held that a municipal cor- j)oration might legally be j^ermitted by the Secretary of War to lay water pipes in the soil of the arsenal grounds at Spring- field, Mass., the same being equally for the benefit of the military authorities and the citizens and subject to removal at the will of the government. XXXVI, 653. And held that a post trader might legally be licensed by the Secretary of War to erect the buildings necessary for his business upon the land of the post for which he was appointed.^ XXXIII, 453, XXXV, 78. But held that the Secretary of War was not empowered to accede to the application of an individual to establish a ferry across a river within the limits of a mili- tary reservation, where what was asked was not a mere license revocable at the will of the Secretary but a permanent franchise and grant of an exclusive usufructuary interest in the premises, including even the right to charge tolls to the United States. XXXVIII, m^; XXXIX, 457; XLII, 454. And similarly held in a case of an application to be permitted ^ A fortiori in regard to growing timber. See Spencer v. United States, 10 Ct. 01. 255. ^ See this distinction recognized in opinions of the Attorney General of October 1 and Xovember 22, 1878, (XVI Opins. — ',) in the former of which it was held that the Secretary of the Xavy was not empowered to authorize the City of Chelsea, Mass., to continue one of its main sewers through the grounds of the U. S. Xaval Hospital. 2 See XIV Opins. of Attys. Gen. 125. 404 PUBLIC PEOPEKTY- to erect and maintain a permanent bridge across a river form- ing a boundary of a military reservation, one end of whicli was to be built ux)on tlie soil of the reservation ; the applica- tion contemplating not a mere license revocable at the will of the government, but a permanent right of jjroperty in the bridge invohang an easement in the land. XLIII, 167. 4. The provision of the Constitution in regard to the dis- position of public property applies to personalty equally as to realty. Thus no executive department or ofi&cer can be em- powered, except by the authority of Congress, to dispose of personal property ofthe United States.^ XXX, 605 j XXXVIII, 11. So lield that, in the absence of such authority, a mili- tary commander could not legally dispose of temporary build- ings — not "fixtures" — erected \\]}on a military reservation. XXXVII, 222 ; XLI, 436, 498. So held that the Secretary of War would not be authorized, in the absence of enabling leg- islation, to sell or negotiate the bonds or i^romissory notes made to the United States by certain railroad companies, in consideration of rolling stock, &c., sold and transferred to the same. XXX, 605. And similarly held as to the author- ity of the Secretary to dispose of articles of inferior \ alue,^ ^ The leading case on this point is United States v. Xichols, 1 Paine, U. S. Circ. Ct. E. 646, in which it was held that a sale or loan, by the commandant of an arsenal, of a quantity of lead belonging to the United States, was illegal and in- valid. The Court say : '^ The Constitution declares that ' Con- gress shall have power to dispose of and make all needful rules and regulations respecting the territory or other i^roj)- erty belonging to the United States.' Xo i^ublic property can therefore be disposed of without the authority- of law, either by an express act of Congress for that purpose, or by giving the authority to some department or subordinate agent. Xo law has been shown authorizing the sale of this lead ; nor is any such authority to be inferred from the gen- eral power vested in any of the departments of the govern- ment. The power, if lodged anywhere, would seem most ap- propriately to belong to the War Department. But there is- no such express or imi^lied power in that department to sell the x>ublic property put under its mauagement." And see the same principle recognized in a recent opinion of the At- torney General of March 27, 1S80, (XVI Opms. — .) in which it is held that the Secretary of .War was not empowered to sell arms to a State, in the absence of authority from Con- gress. - Compare VIII Opins of Attys. Gen. 280. PUBLIC PROPERTY — DISPOSITION OF, &C. 405 not impliedly authorized to be sold by Sec. 13 IG, Rev. Sts. [See § 13, infra.] XXXVIII, G14. And Md that the fact thaf certain valuable public i^roperty was perishable and lia- ble to waste was not legally sufficient to justify the sale in the absence of statutory authority. XXVIII, 479. Held that the '' Cavalry Tactics," a work prepared under the orders of the Secretary of War by a board of officers, was the property of the United States, and therefore could not, without the authority of Congress, be disposed of to a bookseller with a view to its publication and sale by him on his private ac- count. XXXV, 264. 5. In the absence of statutory authority, land can not be purchased /or the United States with any more legality than land of the United States can be sold or disposed of. By a provision of an Act of May 1, 1820, now contained in Sec. 3736, Eev. Sts., it is declared that — "Xo land shall be pur- chased on account of the United States except under a law authorizing such purchase." Held that the term "purchase" was to be understood in its legal sense, as embracing any mode of acquiring property other than by descent; ^ and that therefore the Secretary of War would not be empowered to accej)t a gift of land or interest in land, for any use or purpose, independently of statutory authority .2 XXXII, 19 ; XXXVIII, 175; XXXIX, 313; XLIV, 9. And similarly held as to the construction of the same word, ("purchase,") as employed in ' See VII Opins. of Attys. Gen. 114, 121, Ex xmrte Hebard, 4 Dillon, 384. - See this opinion concurred in by an opinion of the Attor- ney General of January 7, 1880, (XVI Opins. — .) As stat- utes specially authorizing the acceptance of donations of land, note the early Acts of March 20 and May 9, 1794, and, later, the Acts of'^Feb. 18, 1867; March 3, 1875; June 23, 1879. That authority, however, to purchase, and, a fortiori perhaps, to accept a gift of, the necessary land, may be implied from an Appropriation Act granting a sum of money for a public work requiring for its construction the occupation and use of certain land of an individual or corporation — see opinions of the Attorney General of March 27, 1877, (XV Opins. — ,) and August 9, 1878, and October 4, 1879, (XVI Opins. — .) In the opinion of August 9, 1878, it was held that where no stat- utory authority whatever existed for a(?cepting a gift of land, a head of Department would not be justified in accepting the same on the condition that Congress ratify the acceptance and in anticii^ation of such ratification. 406 Sec. 355, llev. Sts., and advised that au api)ropriation of pub- lic iBOuey could not legally be expended for the erection of a public building upon land donated to the United States, until the Attorney General had passed the title, and the legislature of the State in which the land was situated had given its con- sent to the grant.' XXXII, Id; XXXIX, 313; XLII, 452. 6. The statutory authority relied uj^on for the purchase of land by a head of a department should be clear and indispu- table. Thus held that authority to purchase additional land for the interment of soldiers could not be derived from the gen- eral provision of the annual appropriation Act, appropriat- ing a certain sum for maintaining the existing National Cem- eteries. XLI, 50. 7. A statute conferring a specific authority to purchase certain land should, in the exercise of the authority, be strictly construed. Thus where a statute authorized the Sec- retary of War to purchase, for a certain stated sum, a certain described tract containing a specified number of acres, held that the Act did not invest him with discretion to purchase a portion only of such tract. XXXYIII, ,346. 8. Authority to acquire land in a State, by the exercise of the right of eminent domain, whether by proceedings for con- demnation in the U. S. Circuit Court or in the courts of the State, ^ can be vested in an executive official of the United States, only by express legislation of Congress. XLII, 63. 9. A State can have no authority to appropriate land in- cluded in a military reservation of the United States to the I)uri>oses of a right of way for a railroad.^ Such a right of way granted by a State legislature, cannot be recognized as legal by the United States. XXXI, 249. ^ But under the implied authority contained in Sec. 1838, Kev. Sts., lands required as sites for forts, arsenals, &c., or needful i)ublic buildings, may be purchased, (or acquired by gift,) without the consent of the State, though, in the absence of such consent, ijublic money cannot, in view of the provis- ions of Sec. 355, legally be expended upon the huildings, X Opins. of Attys. Gen. 35; XV Id. — , (Opinion of March 27, 1877. ) ' See Kohl v. United States, 1 Otto, 367. ^ See United States v. E. R. Bridge Co., 6 McLean, 517 ; Ills. Central R. R. Co. i\ United States, 20 Law Rep. 630 ; VI Opins. of Attys. Gen. 670 ; also opinion of the Attorney Gen- eral of August 2, 1878, (XVI Opins. — .) \ A 407 10. Where conflicting claims, not clearly groundless, were made by several persons to the title to a portion of a military reservation, advised that the Secretary- do not attempt to pass upon the questions involved, but refer the parties to the courts for their legal remedies. XXX, 72. [See Claims § 4.] 11. A statute may grant title, and a statutory grant is equivalent to a patent — is, in fact, in the words of Attorney General Bates, "the highest and strongest form of title known to our hiw." ^ Thus where a statute vests in terms in an in- dividual or cori)oration the title of the United States to cer- tain land or other public property, in occui)ation or charge of the military authorities, no deed or conveyance from the Sec- retary of War is necessary ; all that is required being that the proper military commander or officer relinquish or turn over the premises or i^roi^erty to the grantee. XXX YII, 596 ; XLI, 28. And where the grant by the statute is made upon a condition precedent, the title, upon the condition being performed by the party, becomes complete without any writ- ten deed. Thus where an Act of Congress granted to a rail- road company' certain hind for buildings and a right of way within the limits of a military reservation, upon the company's filing with the Secretary of the Interior a maj) of its route to be approved by him, and also locating, under the direction of the Secretary of War, the land required for its buildings and roadway; Jield that, upon these conditions being duly per- formed, a comi)lete title vested in the company. XXXYI, 130. 12. Held that the principle that buildings erected on the land of another without his consent become his property, did not apply to buildings erected by the United States on land occnined jure belli by the army in an enemy's country; but that, on subsequently surrendering the land to the owner, the military authorities might legally remove and retain or dis- l)ose of the buildings. XXXY, 56o. 13. Held that the i:>rovision of Sec. 3618, Eev. Sts., — requir- ing that " all proceeds of sales of old material, condemned stores, supplies, or other i^ublic i^roperty of any kind," shall, with certain exceptions specified, be deposited and covered into the Treasiuy as miscellaneous receipts, and not withdrawn except by the authority of a statutory appropriation, — applied ~^I Opins. of AttysrGem~49. And see IX Id. 346; XU Id. 254; Terrett v. Taylor, 9 Cranch, 50. 408 PUNISHMENT — PURCHASE. to the proceeds of tlie surplus cuttings of material for cloth- ing manufactured by the quartermaster department of the army, the same not being within any of the designated excep- tions J and therefore that the proceeds of such cuttings could not legally be retained and used in the business of that depart- ment. XLII, 653. See ninth ARTICLE. CAPTURED PROPERTY. MILITARY RESERVATION. NATIONAL CEMETERY $ 2, 3, 4. QUITCLAIM. SALVAGE § 1. PUNISHMENT. See fourth ARTICLE $ 3. SEVENTEENTH ARTICLE $ 1. FIFTY FOURTH ARTICLE $ 5. FIFTY EIGHTH ARTICLE $ 5 SIXTIETH ARTICLE $ 8. SIXTY SIXTH ARTICLE. EIGHTY THIRD ARTICLE. ^ EIGHTY SIXTH ARTICLE. NINETY SEVENTH ARTICLE. DISCHARGE ^ 8, note. DISMISSAL, II $ 1. SENTENCE AND PUNISHMENT. ♦^PURCHASE." See cession OF JURISDICTION $ 1, note. PUBLIC PROPERTY— DISPOSITION OF, &c., $ 5. QUAETEKMASTEE STOEES—QUORUiM. 409 Q. aUARTERMASTER STORES. See claims $ 10. PUBLIC PEOPERTY— DISPOSITION OF $ 13. SALVAGE $ 1. QUARTERS. See sixty FIFTH ARTICLE $ 1. ARREST, I § 3- LEAVE OF ABSENCE $ L LOSS OF FILES $ 3. PAY AND ALLOWANCES $ 12, note, 22,23,26. SUSPENSION $ 5. aUITCLAIM. In view of the fact that the land of the United States is peculiarly subject to claims of title and the assertion of con- testing interests on the part of alleged pre-emptors, settlers, holders of rights of way and other easements, &c., — that cor- poration, in making conveyances of its real estate through its official representatives, cannot in general properly be required to give any other than quitclaim deeds, and, in the practice of the War Department, such are the deeds which are ordi- narily given. XLIY, 110. aUORUM. See SEVENTY FIFTH ARTICLE $ 3. MILITARY COMMISSION, I, $ 2. RECORD ^ 1, d. 410 RANK. E. RANK. / / 1. Where tlie appointment or commission of an officer spec- ifies a particular date from which he is to rank, which is prior to the date of the formal execution of the instrument, it is the former date which fixes his relative rank in the army — except as between himself and an officer of his grade whose appointment or commission gives rank from the smiie date as does his own, in which case the rule prescribed by Sec. 1219, Eev. Sts., is to govern. XXIII, 439. 2. Under the existing statute law, an officer of the army can claim rank or precedence by virtue of service as a volun- teer officer only as between himself and another officer of the same grade and date of ai)pointment or commission — the case l)rovided for in Sec. 1219, Eev. Sts. The One Hundred and Twenty Third Article of war is operative to regulate the rela- tive rank, &c. of regular and volunteer officers only when serving together in the army — as during the late war, for ex- ample — as distinctive classes of commissioned officers.^ XLI, 238. 3. Held that, in fixing his rank in relation to another officer of the same grade and date of commission, under Sec. 1219, Eev. Sts., an officer was entitled to have taken into account a pe- riod of service rendered by him " as a commissioned officer of the United States " in the volunteer force during the Mexican war ; the i)ro vision of the second sentence of the Section not ' See, to a similar effect, an oi)inion of the Attorney Gene- ral, of July 0, 1877, published in G. O. 51, Hdqrs. of Army, 1878. i EEC03OrE^'DATI0N. 411 being viewed as limiting the application of tlie general and comprehensive provision of the first sentence. See seventy NINTH ARTICLE. AID-DE-CAMP $ 1. APPOINTMENT $ 1, 2, 11. ASSISTANT SURGEON $ 2. BREVET RANK. DEFENCE $ 4. PAY AND ALLOWANCES $ 2, note. RELIEF $ 2. SUSPENSION $ 1—10. EECOMMENDATION. 1. A recommendation of the accused to clemency is no part of the official record of the trial, or of the proceedings of the court as sucli^ but is merely the personal act of the members who sign it. It should not therefore be incorporated with the record proper, but should be appended to or transmitted with the same as a separate and independent paper. XII, 572. 2. Where a member of a court-martial who had joined in a recommendation which had been api)ended to the record and regularly transmitted to the reviewing authority, api)lied to have his name, as subscribed thereto, cancelled^ on the ground that, because of information since received, his opinion of the accused had been reversed, advised that such a proceeding would be exceptional and irregular, and that the preferable course would be to file with the record the application and statement of the member so that the same might be referred to and considered in connection with the recommendation. XXXIII, 580. 3. It is of course always discretionary with a member of a court-martial whether he will make or join in a recommenda- tion to clemency. Members however will in general do well to refrain from subscribing recommendations where the tes- timony on the trial as to the merits of the case or the char- acter of the accused fails clearly to justify a remission or mitigation of the punishment. Weak and ill-considered re- commendations have not unfrequently given rise to severe criticism on the part of reviewing olticers. Thus in G. C. M. 0. 1)2, Hdqrs. of Army, 1867, the Secretary of War expresses himself as — '' surprised to find that any officer of the court 412 RECORD. could recommend remission or commutation of tlie sentence of dismissal in a case where the conduct of the officer tried was as reprehensible as that of" the accused.^ Members, in offering recommendations should be careful to state the spe- cific grounds upon which they base the same.^ XXXIII, 418. 4. Members of a court-martial, desiring to recommend an accused to clemency need not all sign the same statement. There may be, in any case, two or more separate recommen- dations each signed by different members.^ XXXVII, 121. EECORB. 1. Though courts-martial are not, in the legal sense, courts of recordj^ yet it is clearly contemi^lated by the statute law, (see the 113th and 114th Articles of War, taken from the old 90th Article ; also the later i)rovision incorporated in Sec. 1199, Eev. Sts.,) that a court martial shall make a formal record of its proceedings, and the Army Eegulations, in pars. 891-893, direct as to the substance and form of the record in certain particulars. Upon such basis, the record of a court martial has come to be, in our practice, a full report and recital of the details of the trial in each case, including, (and ' In G. O. 36 of 1843, the Secretary of War, Hon. J. M. Porter, in reviewing a case, remarks as follows : " The prac- tice of the members of a court martial first finding an offi- cer guilty, and then recommending him for clemency, is to be deprecated. It is an endeavor, too frequently made, to trans- fer the responsibility of their finding to the Department of War when it should rest upon the court itself." And see Gr. O. 342, War Dept., 1863 ; G. C. M. O. 27, Id. 1871. 2 In G. O. 70, Dept. of Dakota, 1870, Maj. Gen. Hancock, the reviewing authority, observes : — ''As the members of the Court are silent with regard to the considerations by which they were influenced in making their recommendation in the prisoner's behalf, it is impossible for the reviewing authority to determine whether their reasons for making the recom- mendation were sufficient to justify a mitigation of the sen- tence. Xo consideration can, therefore, be paid to it. The sentence is approved, and will be duly carried into execu- tion." ^A late case in which there were two recommendations — one signed by a single member — is i)ublished and remarked ux^on in G. 0. M. O. 92, War Department, 1875. ^ See Chambers v. Jennings, 7 Modern, 125; Ex imrte Wat- kins, 3 Peters, 209 ; Wilson v. John, 2 Binney, 215. RECORD. 413 herein it differs from a judicial record in the civil procedure,) all the testimony introduced. As to the character, effect and proper contents of a record of a military court, — (the same rules being held to apply in the main to records of inferior as to those of general courts, XXIY, 540; XXVII, G47, — ) the Judge Advocate General has held as follows : — a. That, (in view of the requirement of par. 891, Army Regulations, that ''every court martial shall keep a complete and accurate record of its proceedings,") the entire proceed- ings and action of the court upon tlie trial should be fully set forth, incknling the organization, challenges to members, (if any,) arraignment, pleas, testimony of witnesses and docu- mentary evidence, motions and objections Avith the substance of the arguments — if any — thereon, rulings of the court on interlocutory questions, adjournments, continuances, closing addresses or statements, findings and sentence ; — in short every part and feature of the i)roceedings, material to a com- 13lete history of the trial and to a correct understanding by the reviewing officer both of the merits of the case and of the questions of law arising in the course of the investigation.^ XXXII, 453. Where a sentence is pronounced, the record should contain everything necessary to sustain it in fact and in law. II, 59. J). That the record of each case tried by a court martial, — where several cases are tried thereb^^, — should be complete Ijer se, and as much an entirety, both in form and in substance, as if it were the onlj^ case tried. Each record should be separate and distinct from every other record, containing all that is essential to an original and independent official paper, and so perfected as to leave no material detail to be supi^lied from any xn^evious or other record. As directed in par. 892, Army Eegulations, ''the proceedings in each case will be made up separately:" records therefore should not be attached together, but should be prepared and transmitted as disconnected documents. Ill, 402, 413 j XIX, 33Gj XXXII, 130. c. That the copy of the convening order, directed hy par. 892, Army Ivegulatious, to be " entered on the record in each case," should properly be prefixed to the proceedings, as constituting the Initial authority for the existence and ac- ^ Compare Coffin v. Wilbour, 7 Pick. 151. 414 EECORD. tion of the court. XXXII, 190; XXXIII, 391. This order should of course be complete, and should exhibit, by its heading and its subscrix^tion that it has i^roceeded from a commanding officer competent to order the court. XXIII, 636. Where several cases are tried by the same court, a separate copy of the order should accompany the record in each case: only to prefix a single copy to the first of a series of records attached together is irregular and in violation of the regulation as well as the general rule that every record should be complete in itself IV, 607. Where subsequent orders have been issued, adding or relieving members or a judge advocate, or otherwise modifying the original convening order, copies of these should follow the original or be else- where incorporated in the record. XIII, 384. In their absence it may not be possible to determine on the face of the record whether the officers who composed the court on the trial were actually or legally detailed therefor, or whether the prosecuting judge advocate, or the judge advocate who authenticates the proceedings, was so detailed. XXI, 488. In connection, however, with any order making a change in the original detail of members or substituting a new judge advocate, the record should note the fact of the new member taking his seat, or new judge advocate commencing to officiate, according to the order, on a certain day. XXIX, 604. Where less than thirteen members are detailed in the original order, it has been usual to add therein: — '^Xo other officers than those named can be assembled without manifest injury to the service." [See form given m par. 883, Armj^ Regulations.] Such addition, however, is not required by Art. 75, and is not essential. XI, 208. [See Seventy Fifth Article § 8.] d. That the record should show that the court met and organized i^ursuant to the order or orders constituting it. It is necessary, Jirst^ to the due organization of a general court martial that there should assemble at the time and place indicated in the order, at least a quorum, i. e. five, of the officers detailed as members. YIII, 649. And the record should show that at least five members were present and acting, not only at the original assembling and proceeding to business as well as at the formal organization after the right of challenge has been fully exercised, but also at every day's session throughout the trial to the end. Ill, 413 ; VI, 384 ; EECORD. 415 YIII, 049. The record of the first assembling should, prefer- ably^, specify the members present by name, rank, &c. : the statement that '^ all the members " were present, while strictly sufficient, is not a form to be favored. A statement to the effect that the same members were i)resent as at a previous trial by the same court, is improper, as being in contravention of the rule that the record of each case should be an entirety and not made up as to any particular by a reference to a record of a previous case. Ill, 402. As to the statement of the assembling of the court on the days subsequent to the day of the organization, — it is sufficient to note that all the members were present, or that the same were present as on the day before or as at the last jireceding session ; the pref- erable form, however, is to specify by name, &c., the actual members present at every day's session. XXI, 351 ; XXVI, 516. The record should also show the presence of the accused at the time of the organization of the court for his trial, as also at all the material stages and portions of the proceed- ings.^ XXX, 200. e. That the record should show that the order or orders convening the court and detailing the members were read to the accused or communicated to him, and that, (as directed in par. 891, Army Regulations,) he was afforded an oppor- tunity of objecting to any member, that is to say that the privilege of challenge, accorded and defined by the 8Sth Article of War, was extended to him. II, 83. This testing of the members is the second essential to the due organization of the court, and, though the phraseology of the question put to the accused, or of his answer thereto, need not be given in the record, it should clearly appear either that he had (or made) no objection, or if he made any, what it was. IX, 106; XX, 120. Where a specific challenge is offered, it should, preferably, be recorded in the terms in which it is expressed by the accused ; and, in connection with each challenge, the record should set forth the remarks of the member, if any, and the action of the court, as also, if an issue be joined on the challenge, the evidence, if anj', introduced, and the sub- stance of the argument had. Where a member is added to the court at a subsequent stage of the proceedings, the record ^ Compare Long v. State, 52 Miss. 23. 416 RECORD. should similarly show that the accused was afforded an opportunity of objecting to him, and set forth the action taken if objection was made. YIII, 602. It may be added that while, with the convening order, any subsequent orders by which the original detail may have been modified, should be read to the accused, — the fact that other orders relating to the court, but not to its personnel, such as an order changing the place of meeting or an order authorizing the court to sit without regard to hours, may not have been so read, will not constitute an irregularity. It is usual, however, and proper, to read all such orders, equally with those relating to the com- position of the court, in the presence of the accused. XXXIX, 239. /. That the record should show, as the final essential to the due organization of the court, that the members were qualified by being duly sworn, and, (as directed by par. 891, Army Eegulations,) that they were so sworn, as was also the judge advocate, in the presence of the accused. And this should be shown in the record of every case tried by the same court, since the court and judge advocate must be sworn independ- ently and anew for each trial. ^ XXXV, 8. The most ap- proved form for recording this x^roceeding is : — ' The members of the court were then severally duly sworn by the judge ad- vocate, and the judge advocate was then duly sworn by the president of the court j all of which oaths were administered in the presence of the accused.' XIII, 483. The form that — ^ The court, including the judge advocate, was then duly sworn,' is not a proi)er one for the statement of the qualify- ing of a general court.-^ XXXYIII, 429. Any statement, however, will be sufficient from which it can be gathered by the reviewing officer, or i:>resumed, that the members and ^ Compare Coffin v. Wilbour, 7 Pick. 150. " It is not con- sidered a compliance with," par. 829, Army Eegulations, di- recting that 'the court is to be sworn at the commencement of each trial,' " to call several i^risoners into court at the same time and swear the members of the court once before them all." G. O. 60, War Dept., 1873. 2 See this opinion adopted in G. C. M. O. 12, Hdqrs. of Army, 1877. The inversion of the proper order of swearing the court and judge advocate was held by the Attorney General, (XIII Opins. 374,) not to have invalidated the proceedings of a naval court martial. RECORD. 417 judge advocate were in fact qualified as required by Arts. 84 and 85, and in the hearing of the accused. Where an absent member joins or a new member is added to the court, or the first judge advocate is relieved and a new judge advocate is detailed, at a stage of the proceedings subsequent to the orig- inal organization and qualifying, the record should show that such member or judge advocate, before acting, was sworn as above indicated. Ill, 548 ; IX, 222. Where several i)ersons are tried together, the record will properly show that the oath was taken in the presence of all the accused. XXIX, 434. g. That the record should further set forth the arraignment of the accused on the charges and specifications, with the plea or pleas made. II, 83 ; XV, 540 ; XVII, 134. The charges and specifications should properly be embodied in the record instead of being referred to as annexed, (II, 495; XIV, 39,) and the copy of the same should, preferably, include the name of the ofiicer by whom they are preferred and signed. XIX, 610. If special pleas are interposed, the issue joined and action taken upon the same should be clearly stated. h. That the record should fully set forth all the testimony introduced upon the trial — the oral portion as nearly as prac- ticable in the precise words of the witness. II, 23. For a judge advocate to assume to record only such testimon}' as he considered material, or to summarize the testimouy given, has been remarked upon as a gross irregularity. Ill, 189 ; XX, 42. It is usual and proper, (though not essential,) to specify by which party the witness is introduced and by whom the questions are put. XXVI, 344 ; XXXIV, 435. It is also usual to designate the point at which the prosecution is closed and the testimony for the defence is commenced. IV, 131. It should appear that each witness, (whether or not his evi- dence was imx)ortant,) was sworn, (III. 550 ; XXI, 43 ; XXXIV, 457,) but it is not customary to add that he was sworn in the presence of the accused. IX, 106. Objections taken to the admissibility of testimony should be set forth with the substance of the argument had thereon, if any, and the ruling of the court, (XXVI, 643;) and where the court is cleared on any interlocutory objection, the fiict will properly be noted. IX, 221. i. That the record should state the finding on each of 27 D 418 RECORD. the several charges and specifications, (IX, 221,) and the sen- tence in the event of a conviction. In a case of a death sentence, it is nsnal, (though not essential, not being required by the OGth Article,) to state that it was concurred in by two-thirds of the members. II, 21 ; IV, 158. Care should be taken that there be no variance, in the statement of the name &c. of the accused, between the finding or sentence and the charges- As directed by par. 891, Army Eegulations, the sentence should be certified by the signatures of the president and judge advocate, by whom also the x>i'Oceedings should be au- thenticated at the end of the record. II, 546. Wliere, how- ever, there are no material proceedings after the sentence, the subscription of the same by these officers will constitute a sufficient authentication oi the record as a whole. XIX, 610. Where the i^resident or j udge advocate has been changed pending the trial, it is of course the last one who is to sign the record. XXIX, 604. Adjoiu-nments from day to day are not required to be authenticated. YIII, 507. A;. That, as in substance directed by par. 896, Army Eegu- lations, the record should exhibit, at the end of the proceed- ings of the court, the action thereon — approval or disapproval, &c. — of the reviewing authority. II, 550. This, though it has sometimes been endorsed on the outside of the record, is preferably and customarily written and signed within the record on a page following the authenticated judgment or other final proceeding of the court. lY, 313, 428. Where several cases are tried by the same court, the action of the re- viewing officer should be entered in the record of each trial : merely to endorse it upon the last of a series of cases would be irregular as not a comi^liance with the Regulation. YIII, 656. So it is irregular and insufficient for the reviewing offi- cer, in lieu of writing and subscribing his action in the record, to annex to it or file with it a copy of a General Order pro- mulgating the proceedings and his action thereon; for this would be a substitution of a copy for the original. I, 412. Where the i^roceedings are to be forwarded to higher author- ity for final action on the sentence, a mere reference, as by the words — ' EespectfuUy referred, or forwarded, to the Pres- ident,' (or other superior,) ' for action,' &c. is incomplete and irregular. In such a case the original reviewing officer should state his approval, &c. in full and formal terms. lY, 313 j YII. 132. ( RECORD. 419 1. That, where the court is reassembled for the purpose of a revision of its proceedings in any particular, the record should formally recite all that is ordered and done as a new and independent chapter of the historj' of the case tried. The record of a revision will properly begin with setting forth a copy of the order reconvening the court, and will show that at least five members assembled, together with the judge advocate, and, where the correction required is such as to make it proper that he be present, (see Kevision § 4,) the accused. The record will further show the action taken by the court, in making the correction or otherwise, under the order, and the proceeding will be finally authenticated by the signatures of the president and judge advocate. I, 487 ; II, 97; IX, 653; XI, 93, 113; XY, 547; XVII, 402; XIX, 135. Where the court decides upon making the correction, the same should be declared to he made in manner and form as determined upon and with the proper reference to the part of the original proceedings in which the error occurs. The error itself, however, is to be left as originally recorded ; all corrections in the body of the record by erasure, interlinea- tion, &c., being irregular and improper. XI, 93 ; XVI, 202. A court martial is not authorized, either at a revision, or dur- ing the trial, to expunge bodily any material words or state- ment forming a part of its record. XXVI, 604. 2. Among the minor points hold by the Judge Advocate General, in connection with the subject of the form of the Eecord, are the following : That the several stages of the pro- ceedings of the Court should api)ear in the record in the proi^er order; thus, that the swearing of the court should not be recorded before the statement as to whether the accused objected to any of the members, &c. XI, 124 : That, in its statement of the opening of each day's session, the record may well mention, if such was the fact, that the proceedings of the previous day or session, (if any were had in the same case,) were read and approved. XXV, 349 ; XXXIV, 167. Such a reading however, though desirable as giving the court an opportunity to make corrections, is often not resorted to, and even where it is, is not always noted in the record. XXI, 679 : That, except where the court is specifically authorized to sit "without regard to hours,'' the record — though this is not essential, the 94th Article of War not requiring it, — may 420 RECORD. well set forth the hours of assembling and adjourning, so that it may appear that its sessions did not commence earlier than 8 o'clock a. m., or continue later than 3 o'clock p. m. VII, 433; XYIII, 584; That, though par. 893, Army Eegulations, in directing that "the record shall be clearly and legibly written," and " as far as practicable without erasures or in- terlineations," contemplates that the record will be written by hand, there is no legal objection to printing the record, or any part of it, (such as the charges and specifications where numerous,) provided of course the signatures of the i)resi- dent and judge advocate are written by them in person. XIII, 384: That the record will conveniently and properly be en- dorsed on the outside, or cover, so that the name of the accused, and the court by which he was tried, with the time and i)lace of trial, «&c., will be apparent without opening and examining the i)roceedings.^ XXXI, 244. 3. Unless it clearly appears to the contrary on the face of the record, it is in general to hQ presumed therefrom, not only that the court had jurisdiction in the case, but also that the i>ro- ceedings were sufficiently regular to be valid in law.^ XII, 353. ^See G. O. 29, War Dept., 1871, prepared by the Judge Advocate General and containing a form of endorsement for the entitling of records of courts-martial, similar to that pre- scribed by Maj. Gen. Scott in G. O. 50, Hdqrs. of Army, 1851. 2 However desirable it m;iy have been, in view of the nu- merous and serious defects frequently occurring in the records of courts martial during the late war, and in order to induce a greater j^recision and uniformity in the prei>aration of such records, to treat, (as was not unfrequently done,) the more grave of these defects hh fatal to the validity of the proceedings or sen- tence, it is conceived that tlie same, in general, might properly have been regarded, and may now be regarded, as oidy calling for, or justifying, a disapproval of the proceedings. It is the effect of the rulings of the civil courts that wliere the court on any trial was legally constituted, had jurisdiction of the case, and has imposed a legal sentence or judgment, every reason- able intendment will be made in favor of the regularity of its proceedings, and even where the same are clearly irregular, the validity of the result will not be deemed to be affected, provided no statutory provision has been violated. [See Hut- ton V, Blaine, 2 Sergt. & Kawle, 75, 79 ; Moore v. Houston, 3 Id. 197; Trinity Church i?. Higgins, 4 Kobt. 1; Edwards r. State, 47 Miss. 581.J And it is further held that the regularity or validity of the minor details of the proceedings may be RECORD. 421 4. Where the proceedings of a court martial have regu- larly terminated, and the sentence has been confirmed and ordered to be executed by the proper and final reviewing au- thority, the fact that the record has since been lost does not impair or affect the judgment of the court, and constitutes no legal obstacle to the enforcement of the penalty. IX, 238. But where the record of the trial of a soldier who had pleaded not guilty, and in whose case considerable evidence had been introduced, was, by a casualty of war, lost before any action had been taken upon the sentence by the reviewing officer, held that, unless the court could be reconvened and a new record could be made out from extant original notes, the i)ro- ceedings, inasmuch as they could not be intelligently re- viewed or formally approved, should properly be considered as inoperative and the sentence of no eifect. YI, 582. 5. The legal record of a court martial is that record Avhich is finally approved and adopted by the court as a body, and authenticated by its president and judge advocate. The court as a whole is responsible for the record, and the instru- ment which it approves as such is its record, however the same may have been made up. It is immaterial to the suffi- shown by evidence outside the record. Van Deusen v. Sweet, 51 X. York, 378. Similarly — it is believed — no omission or error in a record of court martial, not in contravention of ex- press statute, should, as a general rule, be regarded as abso- lutely invalidating the proceedings where there remains enough in the record fairly to warrant the presumption that the legal requirements have been complied with, or where the reviewing authority can supply the defect from his own official knowledge, or from current orders or other satisfactory evi- dence read ily available to him. Thus where the statement in a record as to the qualifying of the court, &c., simply is that ' the court and judge advocate were sworn,' and it is clearly infera- ble from the other entries in regard to that day's session that the accused was in court, it may, it is believed, iair] v be pre- sumed that the court, &c. were dull/ sworn, /. c. had properly administered to theiu the oaths prescribed by Arts. 84 and So, and were sworn in the presence of the accused, and thus that the direction of the Army Eegulation, (par. 891,) which is deemed directory only, was complied with. [In Edwards v. i^t'dte, supra— 11 capital case — in which the record simply stated that the jury was '' sworn", it was held that it was to he pre- sumed that the swearing was in the legal form.] So where no copy of the convening order accomi)anies the proceedings, but the reviewing authority, from the fact of having issued it him- 422 REDUCTION IN RANK — REDUCTION TO THE RANKS. ciency of a record whether the same was kept or written by the judge advocate or a clerk. So where a clerk or reporter, api^oiuted and sworn to keep the record, did not act, but the record was prepared by the judge advocate or some other per- son employed by him to assist him, held that this circum- stance did not affect the vahdity of the record as finally ap- proved by the court. XLIII, 346. See EECORD § 8. NINETY SIXTH ARTICLE $ 1. ADJOURNMENT § 1, 2. JUDGE ADVOCATE § 15, 17, 25. PROTEST. RECOMMENDATION $ 1. REVISION. WITNESS ^ 21. REDUCTION m RANK OR FILES. See loss OF FILES. REDUCTION TO THE RANKS, I— OF COMMISSIONED OFFL CER. Eeduction to the ranks was authorized to be imposed as a punishment by courts martial upon commissioned officers of the army, on conviction of absence without leave — by the Act self or from the records of the command or otherwise, is offi- cially apprized that the court w as duly convened, the proceed- ings are not, it is believed, to be treated as fatally defective, but — the court appearing in fact to have been constituted and to have acted pursuant to the order, — may be regarded as valid in law though imperfectly recorded. Where indeed the record discloses in the proceedings of a general court martial, an irremediable defect in a vital particular, as the fact that the court was comi^osed of but four members, the proceedings aud sentence, if any, must be held inoiJerative, since the stat- ute law — Art. 75 — has fixed five members as the legal mini- mimi for such a court. But where the defect occurs in a less material feature, or is one of form only, the same, while it may, if of a gi'ave character, pioperly warrant a disapproval of the proceedings, — in case it cannot be removed by a revis- ion by the court on being reassembled for the purpose, — will not in general, it is held, justify the reviewing authority in pronouncing the proceedings to be void, or in treating them as necessarily without legal effect. [See Defects in Pro- ceedings, Sentence, &c.J REDUCTION OF NON COMMISSIONED OFFICERS. 423 of March 3, 18G3, c. 75, s. 22; and, upon conviction of the offence of neglecting or refusing to turn over to the proper official any captured or abandoned property coming into the possession of the party — by the Act of March 12, 18G3, c. 120, s. G. This i:)anishment whicli involved a dismissal of the offi- cer, (XVI, 484,) is no longer legal ; the statutory i^rovisions indicated being imi)liedly confined in their api)lication to the period of the late war, (or for a limited period succeeding the same,) and not being re-enacted in the Eevised Statutes.^ REDUCTION TO THE RANKS, II— OF NON COMMISSIONED OFFICER. 1. A court martial, in sentencing a non-commissioned offi- cer to be reduced to the ranks, is not emj^owered to direct that when reduced he be transferred to another regiment or company. The authority to order the transfer of soldiers is expressly vested by Art. XY of the Army Regulations in cer- tain military commanders. XI, 205. 2. The warrant or certificate given to a non-commissioned officer is as much the personal property of the individual as is the commission given to a commissioned officer. In the absence of any statute or regulation requiring that a ser- geant or corporal shall surrender his warrant on being reduced to the ranks, (or dishonorably discharged,) he may retain it witli the same right as that by which an officer retains his formal commission on being dismissed. XLI, 310. See chief MUSICIAN ^ 2. FORFEITURE, 11 $ 12. ^ Cases of officers sentenced to this j)unishnient, upon con- viction under the first named statute are published in G. O. 27, War Dept., 18G4 ; do. 80, Dept. of the Gulf, 18G3 ; do. 38, Dept. of the East, 18G4; do. 3G, Middle Dept. 18G4; do. 5, 2d Div., 5th Army Corps, 1804; G. C. M. O. 25, 51, Army of Potomac, 18G4 ; do. 12 Id. 1805. Xo instance has been met with of the imposition of this punishment ui)on a conviction under the latter statute. In some few cases, during the late war, this punishment was adjudged — illegally — for oflences other than those specified in the Acts designated in the text. 424 REGIMENTAL, SzC, COURT^^ — RELIEF. REGIMEIITAL AHB GAEEISOI^T COURTS. See seventeenth ARTICLE § 1. THIRTIETH ARTICLE. SEVENTY SECOND ARTICLE ^ 9. EIGHTIETH ARTICLE v» 1, 4. EIGHTY FIRST ARTICLE. EIGHTY SECOND ARTICLE. EIGHTY THIRD ARTICLE. CHIEF xMUSIClAN ^ 1. JUDGE ADVOCATE ^ I. REGULAE ARMY. The regular army was mainly distinguished from the other principal contingent of the Army of the United States during the late war — the volunteer force, by the fact that the tenure of office of the officers of the former was not in general limited either expressly or by implication, to the period of the war. An unlimited tenure, lio\vever,is not a necessary or invariable incident of office in the regular army. The eleven new regi- ments, for example, added to the regular army by the Act of July 29, 18G1, were "declared to be for service during the existing insurrection," &c. XXXIV, 459. [And see Extra Pay, as to the similar tenure of medical storekeepers of the army; also Aid de Camp § 2, as to the tenure of "additional" aids de camp.] RELIEF. 1. An officer or soldier cannot in general properly be relieved by executive authority from the consequences oi a military order or proceeding unless the same has deprived him of some specific right callable of being legally restored by the same authority — as a right to pay, allowances, or bounty, or a right of command, precedence, &c. Action not looking to some recognized form of specific relief must in general be superHu- ous and futile, and to take such action is contrary to the usage of the War Department. Thus where, in the case of a party who, in 1804, had been dismissed the service as an offi- cer of the army by the sentence of a court martiul duly con- RELIEF. 425 firmed and executed, an application, sui)ported by evidence going to indicate that his dismissal may not have been strictly legal, but not satisfactorily establishing the fact of illegalit}^, was i)resented in his behalf, asking to have the stigma attacliing to his record in the service by reason of the dismissal removed by an official de(-laration in General Orders, — advised^ (April, 1878,) that such form of relief, espe- cially in view of the fact that the party had deceased^ would not be within the proper x)rovince of the Secretary of War. XLI, 214. 2. An executive dei)artment has in general no poicer either to undo an executed legal act of the past or to indemnify a party for injury suffered by him therefrom. Thus where an officer claimed that he had been unjustly prejudiced by not having had a higher relative rank in his grade given him by his original appointment, but it aj^peared that said appointment had been confirmed by the Senate, accepted, and held for nearly thirteen years, and that to increase as desired the rel- ative rank thereby conferred would divest the vested rights of twelve officers who now ranked the claimant in his grade, advisedj (Februarj^, 1880,) that however unjustly his appoint- ment, when made, may have discriminated against this officer, his case was one in which Congress alone could grant the appropriate relief. XLIII, 206. 3. The authority of the executive department of the gov- ernment to grant relief is limited by strict law and to a few subjects. Congress, in our system, is the fountain of general relief. By its authority to authorize special appointments, and to dispose of the i)ublic money, it can meet and ade- quately provide for nearly all the applications for relief i)re- sented by officers and soldiers of the army which the Execu- tive is not empowered favorably to act upon. XLIV, 100. As to relief by means of the Pardoning Power, see Pardon. As to relief from a dismissal, or from a sentence of court mar- tial, see Dismissal j President, III j Statutes — Con- struction OF, II. See appointment ^S 11. SENTENCE OR PUNISHMENT $ 15. VOLUNTEERS ^ 2. 426 REMISSION — REMOVAL OP DISABILITY. REMISSION. Eemission is a i)artial exercise of tlie pardoning power, re- lieving the person from a pimishment or the unexecuted i^or- tion of a punishment, but not pardoning the offence as such, or removing the disabilities or penal consequences attaching thereto or to the conviction/ An offender can be completely rehabilitated only by ^ fuU pardon granted under the pardon- ing power of the Constitution.^ XXIY, 679. XXXYII, 613. See one HUNDRED AND TWELFTH ARTICLE § 1-14. ACCOMPLICE. DISCHARGE § 7. FORFEITURE, 1^2; ID., II $ 14, 15. IMPRISONMENT § 6, 14, 19. PARDON ^ 2, 4, 11. PAY AND ALLOWANCES § 20. "REMOVAL OF DISABILITY." The so-called ^'removal of disability, '^^ sometimes ordered by the President during the late war, was a form adopted in ca,ses of officers of volunteers who had been dismissed the service, and whom, for good cause shown, it was thought proper to reinstate. This form was not an exercise of the pardoning power, nor did it, properly speaking, discharge the party from any disability, since a dismissed officer is under no legal dis- ability to re-enter the array. It simi)ly amounted to a waiver of objection on the part of the Executive to the reapi)ointment of the ofdcer by the Governor of his State, or rather an official declaration that, if reappointed, he would be received and allowed to be mustered into the service of the United States, notwithstanding his previous dismissal. Its effect was to remove the stigma of dismissal, and, if a reapijointment fol- lowed, to fully rehabilitate the party. This form had of course no proper api)lication to officers of the regular arm}^, and the term ^'removal of disability" has no longer any sig- nificance in our service as api)lied to cases of dismissal. Y, 446; XXI, 426; XXIX, 431; XXXYI, 330; XLI, 675. ^Compare Perkins t\ Stevens, 24 Pick. 277; Lee i\ Mari)hv, 22 Grat. 799; 1 Bisli. Or. L. § 763; II Opins. of Attvs. Gen. 329; V Id. ijSS: VIII Id. 283-4. '' Ex parte Garland, 4 Wallace, 3.S0. EEPORTER. 427 REPORTER. [Under Section 1203, Rev. Sts.^] 1. The power to appoint the reporter is vested exchisively in the "judge advocate" and cannot he exercised by the court. [See Judge Advocate § 23.] In general, however, the court will, of course, have but to indicate to the judge advocate that, in its opinion, a reporter wouhl be desirable, to induce him to employ one, where he has not already done so. The employment, however, of a stenographic reporter should be resorted to only in an important case. II, 515 ; XXXIY, 232. 2. The description — "The judge advocate of a military court," does not strictly include the recorder of a court of in- quiry^ especially as a court of inquiry* is not, properly, a court at all. [See One hundred and fifteenth Article § 1, note.] The same reason however, often exists for appointing a reporter for a court of inquiry as for a general court martial, and it is understood that the Pay Department recognizes and pays the accounts of reporters appointed by recorders of courts of inquiry. II, 94; XXXVIII, 194. 3. The statute may be said to contemplate in general that a short hand reporter will properly be paid at the current rate fixed at the locality of his emi)loyment, provided the same may not be unreasonable. It is announced in G. O. 208, War Dept., 18G3, that "phonographic reporters, euii)loyed under the authority of the" statute above cited, "will be al- lowed not exceeding ten dollars per day, and when the place of meeting of the court is changed, their actual travelling ex- penses." The payment of a reporter at a rate higher than thus indicated would require the special authority of the Sec- retary of War. XXXVII, G05; XXXIX, 370. 4. The statute does not indicate by whom the reporter shall be sworn. In practice he is sworn by the judge advocate; a ^ This Section provides: — " The judge advocate of a military court shall have power to appoint a reporter, who shall record the proceediugs of, and testimony taken before, such court, and may set down the same, in the first instance, in short hand. The reporter shall, before entering upon his duty, be sworu, or afiirmed, faithfully to perform the same." 128 REPRIMAND— REQUISITION. l^roper form of oatb, (as following the wording of Sec. 1203,) being : You swear (or affirm) that you tcill faithfully perform your duty in recording the proceedings of and the testimony talcen before the court in the case note on trial. If the same party is emi)lo3"ed as a reporter for more than one case, lie should, properly, be sworn anew in each case. XXXI, 314. That the reporter should be excluded from the court dur- ing its deliberations and not permitted to record the findings or sentence, see Clerk 5 3. REPRIMAND. 1. A coiu^t martial, in imi^osing the punishment of repri- mand^ will, if adding anything in regard to its execution, properly direct that the reprimaud be administered by the commander who convened the court. A sentence, to be rep rimanded by an officer inferior to the convening authority, is not in accordance with the ai>proved x)ractice of the service. It is not necessary or desirable, however, that the court should direct as to the execution of the sentence, the same being the proper i)rovince of the reviewing officer. XII, 18. 2. Although, in adjudging a reprimand, it is generally in- tended by a court martial to impose a mild punishment, the quality of the reprimand is nevertheless left to the discretion of the authority who is to pronounce it, and it is open to him to make it as severe as he may deem expedient without being chargable with adding to the punishment, XXXIII, 486. REaUISITION. Whether the Executive shall turn over a military i)risoner undergoing sentence of court martial, to a Governor of a State, upon his formal request, in order that he may be tried and punished by a court of the State, or in order to enable such Governor to surrender him to the Governor of another State in comijliance with a requisition made by the latter for the i^arty as a criminal under the laws of the latter State, — is a question to be decided by considerations of i)olicy and expediency suggested by the facts of the particular case. The U. S. government is under no obligation to surrender its prisoner, and whether it will, in comity, do so, should in gen- RESIDENCE. 429 era! depend mainly uiion the nature of the crime charged. Unless the party he charged with a peculiarly heinous offence, of which, for the purposes of public example and imuish- ment, a i)rompt investigation by a civil tribunal is called for, the Executive will in general properly decline to turn over the party to the civil authorities till his military punishment has been fully executed. XXXYII, 47. RESIDENCE. The fact of being in the military service does not of course disqualify an oliicer or soldier from acquiring a legal residence or domicil,' but as a general rule, the majority, or a large i)ro- portion, of the officers of the army cannot be said to have, for purposes of voting, taxation, or otherwise, any legal residence, tbat is to say, i^ermanent abiding i^lace as distinguished from a i)lace of temi)orary habitancy. The fact that an officer is stationed within a particular State or Territory does not make the same his legal residence, since he is there, not by his own will or choice, but in obedience to the order of a suiierior, and moreover can have no animus remanencli, subject as he is to be removed at any moment by a similar order to a station in a dif- ferent State,- &G. Exceptions, however, to this general rule may exist in the cases of oflicers who are not subject, or lili:ely, to have their places of habitancy changed by sui)erior military authority. Such are the cases of the officers — the chiefs of the staff corps for instance — whose duties require them to remain or at least have their offices permanently in Wash- ington ; and such are also the cases of the majority of the officers on the retired list. In any such exceptional case, the question of residence, where it is at all doubtful, will in the main, as in the cases of civilians, be determined by the evi- dence of an anhmis manendi, as exhibited by the acts and declarations of the i)arty. XXIX, So ; XXX, 215, 528. As to residence as affecting the question of liability to tax- ation, see Tax § 3. As to the residence rendering a minor eligible to appoint- ment as a cadet, see Cadet § 1-4. ^ Graham v. Commonwealth, 51 Pa. St. 258 ; Wood v. Fitz- gerald, o Oregon, 5G8; Cr. O. 13, First :\lil. Dist., 1808. -Graham v. Commonwealth, supra; Wood r. Fitzgerald, suj^ra; Taylor v. Eeading, 4 Brewst. 439 j Devhn i\ Ander- son, 38 Cal. 92. And see Cadet § 3. 430 EESiaNATION. RESIGNATION. 1. It lias been held by a United States Court/ that — ^' a civil officer lias a right to resign his office at pleasure, and it is not in the power of the Executive to compel him to remain in office." In a case of a military officer, however, this right is subject to certain restrictions growiug out of the military status. Thus while, in time of i^eace, an officer of the army, in good standing, is in general entitled to tender and have accepted his resignation, yet, in time of war or when grave embarrassment to the service or prejudice to discipline, may result from his leaving his duty, the acceptance of his resig- nation may jiroperly be refused. And so^ where he has ten- dered his resignation while under charges, and a failure of justice might result from allowing him to evade trial. XIY, 129. 2. A resignation does not become operative until the officer is officially notified of the acceptance of the same. Mere ac- ceptance, without notice, does not give effect to the resigna- tion. It is not till due notice of the same is received that the officer is legally separated from the army and made a civilian, and up to the date of such notice he is entitled to pay.^ XLII, 68. 3. A mere offer to resign or tender of resignation is revoca- ble at any time before acceptance. But after an acceptance, and before effect has been given to the same by notice, (see § 2, supra,) the offer can not be withdrawn or materially mod- ified by the act of the officer alone, but the consent of the appointing x^ower is also necessary. After due notice of the 1 — ' United States v. Wright, 1 McLean, 512. ^Barger v. United States, Ot. 01. 35; Mimmack's Case, infra. And compare the wordiug of the Forty-uiuth Article of War. That an officer is effectually^ detached from the army by an acceptance, duly couimunicated, of his resigua- tion, and cannot thereafter be restored to the military service by a revocation of such acceptance, or by anything short of a re-appointment — see the leading case of Mimmack v. United States, in XII Opins. of Attys. ^Gen. 555; XIV Id. 202; 10 Ct. CI. 564. ; and 7 Otto, 420. RESTORATION — RETIRE3IENT. 431 acceptance has been communicated, there can of course be no withdrawal of the tender.^ XXXIX, 375. 4. While a tender of his resignation by an insane of&cer is in general without legal effect and incapable of being legally accepted,^ yet where a resignation tendered by an insane officer was, in the absence, at the War Department, of any knowledge of his insanity, formally accepted, and the vacancy created by the resignation was thereupon filled, — held that the acceptance could not legally be revoked, and that the appointment to the vacancy was valid and operative.^ XXXIX, 420. RESTORATION OF DISMISSED OFFICER. See dismissal, I ^ 6; ID., II § 8. PEESIDENT, III. STATUTES— CONSTRUCTION OF, II. VOLUNTEERS § 2. RETIREMENT. 1. The provision of Sec. 1248, Eev. Sts., giving to a retir- ing board such powers of a court martial and court of inquiry as may be necessary to enable it to inquire into and deter- mine a question of alleged disability, does not authorize such a board to entertain a charge of a military offence as such, or to try an officer. XX, 619. 2. The investigation of a retiring board is not affected by any limitation of time, as is that of a court martial — viz. by Art. 103. Such a board may therefore inquire into the mat- ter of a disability, however long since it may have originated. XX, G19. 3. The finding of a retiring board under Sec. 1251 or Sec. 1252, Eev. Sts. is in the nature of a recommendation, and till it is "approved by tbe President" no retirement can be ordered thereupon. XXVI, 104. 4. It does not affect the authority to retire under Sec. 1251, Eev. Sts., that the incapacity of the officer may have been ^11 Opins. of Attvs. Gen. 400; XIV Id. 201. 2 VI Opins. of Attys. Gen. 450: X Id. 220; XII Id. 557. ^ See, to a similar effect, an opinion of the Attorney Gen- eral of March 22, 1878, (XV Opins. — .) 432 RETIREMENT. found to have resulted from a wound received by liim while in the volunteer service before entering the regular army. XXVI, 104. 5. Under Sec. 1252, Eev. Sts., an ofi&cer, may, in the dis- cretion of the President, legally be retired by reason of an incapacity resulting from habitual drunkenness. XXVIII, 568. G. The provisions of Sees. 1245 and 1252, Eev. Sts., author- izing the President to '^ ivholly retire " an officer, are not incon- sistent with those of Sec. 1229 and the 99th Art. of War, pro- hibiting the dismissal of officers by executive order in time of peace. Sections of the same Statute, as these are, (see Eevised Statutes § 1,) must all be given equal force and effect, unless repugnant. and irreconcilable. XXVIII, 568. 7. The provision of Sec. 1253, Eev. Sts., that an officer shall not " be wholly retired from the service without a full and fair hearing before an army retiring board, if, ui^on due summons he demands it," may be said to entitle an officer subject to be thus retired, to appear before the board, (with counsel if desired,) and to introduce testimony of his own, and cross-examine the witnesses examined by the board, includ- ing the medical members of the board who may have taken part in the medical examination and have stated or reported to the board the result of the same. XXIII, 626; XXXI, 603. If the officer does not elect to appear before the board when summoned, he waives the right to a hearing, and can- not properly take exceptiou to a conclusion arrived at in his absence.^ XX, 619. 8. The provision of Sec. 1275, Eev. Sts., that an officer wholly retired shall receive, upon retirement, one year's pay and allowances, entitles such an officer to receive a sum equal to the total of one year's i^ay and all the pecuniary allowances of an officer of his rank. XXIX, 360. And held that the fact ^ It is held by the Attorney General in an opinion of May 29, 1878, (XVt Opins. — ,) that where an officer of the navy had been retired Avithout liaving had, through no fault of his own, the fidl and fair hearing before the board to which he was entitled by Sec. 1455, Eev. Sts. and the vacancy on the active list occasioned by Ins retirement had not been filled, the President would be authorized to revoke the order of retirement so that the officer might have the proper hearing, before final action in his case. EETIREMENT. 433 that an officer, at tlie time of being Avliolly retired, was under a sentence of susi^ension from rank and pay, did not affect Ills riglit to receive such full sum upon the retirement. XXIX, 045. 9. An officer, on being wholly retired, becomes a civilian, and can be readmitted to the service only by a new appoint- ment. But he cannot be appointed at once to the retired list. A civilian cannot be ai)poiuted as a retired officer. He must first be appointed an officer on the active list, of a certain rank. None but a commissioned officer on the active list of the army can be placed on the retired list.^ XXXI, 504; XLIII, 130. [See Appointment § 13.] 10. Officers on the retired list of the army are entitled to the benefit of the provision of Sec. 12G2, Eev. Sts. in regard to " service pay," in the same manner as other officers, sub- ject of course to the provision of Sec. 1294.2 XXXIY, 181. 11. An officer on the retired list, being as much a part of the army as an officer on the active list, would be subject to trial by general court martial independently of the provision, specifically so subjecting him, of Sec. 1256, Eev. Sts. XXXIII, 613. A retired officer, upon conviction, may be sentenced similarly to an officer on the active list, except that the punish- ments of suspension and loss of files or relative rank, are not api)roi)riate to the status of a retired officer. XXXVI, ijG. 12. Held that retired officers of the army, though relieved in general from active military service, were nevertheless, as a part of the army, i3rox3erly exemi)t from the public obligations peculiar to civilians, and were therefore no more liable than officers on the active list to be required to serve on juries. The question, however, of exemption is one for the determination of the courts ; so, where a retired officer was summoned for jury duty in a United States District Court, advised that he appear before the court, in compliance with the summons, and there urge to the Judge the objection, arising from his military status, to his serving on a civil jury. XXXYII, bi>. 13. Sec. 1782, Eev. Sts. prohibits and makes penal the ' See XIV Opins. of Attys. Gen. 506^ -That an officer i)laced ui^on the retired list can not, by an executive order, be allowed any pay greater than or additional to that authorized by statute to be paid to retired officers, — see Opinion of Attorney General of January 31, 1878, (XV Oinns. — .) 28 D 434 REVIEWINa AUTHORITY. receiving by any '' officer in the emploj^ment of the govern- ment" of compensation for services rendered to any person in relation to any proceeding, &c. in which the United States is a i)arty or interested. Held that a retired officer of the army, though not actively emjiloyed, was an " officer in the employment of the government" in the sense of this statute. XXXVIII, 649. 14. Held that, under the opinion of the Attorney General of June 11, 1877, (published in G. O. 57, Hdqrs. of Army, 1877,^) distinguishing between the receiving of compensation for extra services and of compensation for two distinct (and not incomi)atible) offices, a retired officer could legally hold the office of a clerk in the quartermaster department, and receive the pay of such office, while at the same time retain- ing his office in the army and receiving the pay of the same.^ XLIII, 197. As to the holding of civil offices, and receiving the emolu- ments of the same, by retired officers, see Civil Office §§ 8-11. See seventy FIFTH ARTICLE § 1. APPOINTMENT ^ 10. COLLEGE OR UNIVERSITY $ I, 5. PAY AND ALLOWANCES $ 22, note. RESIDENCE. TAX § 2. WITNESS $ 26. EEVIEWING AUTHORITY. 1. This term is employed in military parlance ^ to designate the officer whose province and duty it is to take action upon, — ajiprove or disapprove, &c., — the proceedings of a court mar- tial after the same are terminated, and when the record is ^ To a similar efiect see opinions of the same authority of Feb. 7, 3 877, (XV Opins.— ,) and of May 9, 1878, (XVI Opins.— ;) based like the opinion referred to in the text, mainly upon the ruling of the U. S. Supreme Court in Converse v. United States, 21 Howard, 4G3. 2 The prohibition of the Act of Sept. 30, 1850, against the holding of two different offices at the same time, cited by the Court of Claims as decisive in the case of Talbot v. United States, 10 Ct. CI. 42G, was not included in the Revised Statutes, and is not now in force. 2 It occurs also in Sec. 1228, Rev. Sts. REVTEWmG AUTHORITY. 435 transmitted to him for such action. This officer is ordinarily the commander who has convened the court. In his absence, however, or where the command has been otherwise changed, his successor in command, or, in the language of Arts. 104 and 109, '^the officer commanding for the time being," is invested, (by those Articles,) with the same authority to pass upon the proceedings and order the execution of the sentence in a case of conviction. XII I, 408. In cases, however, of sentences of dismissal and of death, imposed in time of i)eace, and of some death sentences adjudged in time of war, as also of all sentences " respecting general officers," — while the convening officer, (or his suc- cessor,) is the original reviewing authority, with the same power to approve or disapprove as in other cases, yet, inas- much as it is prescribed by Arts. 105, 106, 108 and 109 that the sentence shall not be executed without the confirmation of the President, the latter becomes in these cases the final reviewing officer, when — the sentence having been approved by the commander, (for, if disapproved by him, there is noth- ing left to be acted upon by the superior,) the record is trans- mitted to him for his action, k. similar division of the review- ing function exists in cases in which sentences are approved, but the execution of the same is suspended, and the question of their execution referred to the President, under Art. 111. The same function is also shared between inferior and sui>erior commanders, under Art. 107, in cases in which sentences are imposed by division or separate brigade coin-ts. So, under Art. 110, in cases of sentences adjudged by field officers' courts in time of war. AYliere a general court martial is convened directly by the President as Commander-in-chief, he is of course both the original and final reviewing authority. 2. While approval gives life and operation to proceedings or sentence, disapproval, on the other hand, quite nullifies the same. A disapi)roval of the proceedings of a court-martial by the legal reviewing authority is not a mere exi^ression of disapprobation, but a final determinate act putting an end to such proceedings in the i)articular case, and rendering them entirely nugatory and inoperative j and the legal effect of a disapproval is the same whether or not the officer dis- approving is authorized finally to confirm the sentence. But 436 REVIEWING AUTHORITY. to be tlius operative, a disapproval should be express. As frequently remarked in the opinions of the Judge Advocate General, the mere absence of an approval is not a disapproval, nor can a mere reference of the i^roceediugs to a superior without words of approval operate as a disapproval of the liroceedings or sentence.^ The effect of the disapproval, wholly, of a conviction or sentence is not merely to annul the same as such but also to prevent the accruing of any dis- ability, forfeiture, &c., which would have been incidental ui)on an approval.^ A disapjjroval of a' conviction of a particular offence also ox)erates to nullify the conviction of any lesser included offence, involved in the conviction of the specific offence charged. [See Finding § 8.J XXX, 497 ; XXXII, 1. Where the original reviewing officer disapproves a sentence, to the execution of which the confirmation of superior authority is made requisite by the code, — as where, (in time of peace,) the department commander, who has convened the court in the case of an officer, disapi)roves a sentence of dis- missal adjudged thereby, — the sentence being nullified in law, there remains nothing for the superior authority to act upon, and to transmit the i)roceedings to him for action will be improper and unauthorized. Ill, 537 ] YII, 479 j XXX, 497; XXXII, 1, 630. A reviewing officer cannot disajiprove a sentence and then proceed to mitigate or commute the i^unishment, siuce, upon the disapproval, there is nothing left in the case upon which any such action can be based. XXII, 456. It is quite immaterial to the legal effect of a disapproval whether any reasons are given therefor, or whether the rea- sons given are well-founded in fact or sufficient in law. XXVIII, 198. 3. The authority of a military commander as reviewing officer is limited to taking action upon the proceedings and sentence, (if any,) by approving or disapproving the same, (in ^ See a late opinion of the Attorney General of April 30, 1879, (XVI Opins. ,) where it is remarked that it is not a legal disapproval of a conviction or sentence for the original reviewing otficer, in forwarding the proceedings for the action of superior authority, to endorse upon the same an opinion to the effect that the finding is not sustained by the evidence. ^A disapproval of a sentence by tlie i)ioper reviewing authority is "tantamount to an acquittal by the court." XIII Opins. of Attys. Gen. 460. RE VIE WING AUTHORITY. 437 whole or in part,) and directing the execution of the sentence^ and to the incidental function, as conferred by Art. 112, of pardoning or mitigating the punishments which have been approved by him. XXII, 456. Action not included within these powers he is not authorized to take. Thus, he cannot himself correct the record of the court, by striking out any part of the finding or sentence, or otherwise, (see Eevision § 8 ;) nor can he in general change the order in which differ- ent penalties are adjudged by the court to be suffered, (see DiscHARGrE § 9 ;) nor can he add to the punishment imposed by the court though deemed hj him quite inadequate to the offence. [See Sentence and Punishment § 13.] A review- ing officer, however, may, in general, specify the reasons for the action taken by him, without transcending his authority. Thus, where a department commander disai^i^roved a sentence as inadequate, and in stating his grounds for so doing, com- mented unfavorably upon the conduct of the accused as indicated by the evidence, held that such comments were a legitimate explanation of the action taken, and did not con- stitute an adding to the punishment. XIX, G76. 4. Where the reviewing officer deems that the proceedings of the court are in any material particular erroneous or ill advised, his proper course in general will be to reconvene the court for the purpose of having the defect corrected, at the same time furnishing it with the grounds of his opinion. [See Eevision § 1, 2.] Thus if he regards the sentence inade- quate, he should, in reassembling the court for a revision of the same, state the reasons whj^ he considers it to be dispro- portionate to the amount of criminality involved in the offence. XI, 490. But although he cannot compel the court to adopt his views in regard to the supposed defect, he may, in a proper case, express his formal disapprobation of their neglect to do so. Thus where a court martial, on being reconvened, with a view of giving it an opportunity to modify a sentence mani- festly too lenient for the offence found, decided to adhere to the sentence as adjudged, and, on being again reassembled to consider further grounds x)resented hy the reviewing ■ commander for the infliction of a severer penalty, again de- clined to increase the punishment, — held that it was within the authority of the reviewing officer, and would be no more than proper and dignified for him, in taking final action 438 REVIEWING AUTHORITY. upon the case, to reflect upon the refusal of the court as ill- judged, and as having the efi'ect to imjiair the disciiiline and prejudice the interests of the military service. XII, 546. 5. In passing upon the findings and sentence of a court martial, the reviewing officer will properly attach special weight to its conclusions w^here the testimony has been of a conflicting character. This for the reason that, having the witnesses before it in person, the court w^as qualified to judge, from their manner in connection with their statements, as to the proper measure of credibility to be attached to them indi- vidually.^ XXX, 383, 447; XXXY, 542; XXXVIII, 324. [See Finding § 14.] G. The reviewing authority should i^roperly authenticate the action taken by him in any case by subscribing in his own hand, (adding his rank and command, as Indicating his legal authority to act,) the official statement o£ the same as written in or upon the record. [See Eecord § 1, 7v.] Im- pressing the signature by means of a stamp is not favored. IV, 567 ', XXII, 513, 568. 7. A military commander cannot of course delegate to an inferior or other officer his function as reviewing authority of proceedings or sentence of a court martial, as conferred by the 104th or 109th Article of War or other statute. Xor can he, regularly, authorize a stafl' or other officer to write and subscribe for him the action, by w ay of approval, disapproval, &c., which lie has decided to take upon such i^roceedings. An approval purporting to be subscribed by the commander, ^'%" his staff judge advocate or assistant adjutant general, would be open to question and quite irregular ; as would also be any action subscribed by such an officer, purporting to be taken ' in the absence and by the direction of the com- mander. IV, 567; VII, 19, VIII, 64, 639, IX, 27; XV, 548; XVII, 191. [See One hundred and fourth Article § 4, 5.] 8. Action taken by a reviewing officer upon tlic proceedings and sentence of a court-martial may be recalled and modified before it is published and the party to be affected is duly noti- ^ See the early case of Capt. Weisner, Am. Aichiv., 5th Series, vol. II, p. 895. So, civil courts will rarely interfere, except in cases of clear injustice, with verdicts of juries which have turned upon the credibility of witnesses. Wright v. State, 34 Ga. 110; Whitten v. State, 47 Id. 297. REVISED STATUTES. 439 fied of the same. After such notice the action is beyond recall. The power of remission indeed may be exercised so long as any part of the inmishment imposed remains unexe- cuted. [See One hundred and tayelfth Article § 4.] But when the final approval of the sentence, (or other action taken,) has been once officially communicated to the accused, the function and authority of the reviewing authority as such over and respecting the same is exhausted and cannot be re- vived. An approval cannot then be substituted for a disap- proval, or vice i-ersa, nor can an approved i^unishment be mitigated or commuted. yill,556; XXyiI,377; XXXI, 15. See eightieth ARTICLE Q 9. EIGHTY SECOND ARTICLE $ 5. DISCHARGE § 10. president, II $ 1. WITNESS $ 6. REVISED STATUTES. 1. The Kevised Statntes are a single Act of Congress, which, in the absence of any special provision as to the date on which the same, (or any part of the same,) should take eft'ect, went into operation on the day of its approval by the President — June 22, 1874.^ The date of the certificate, published with the same, of the Secretary of State, viz. Feb. 22, 1875, simply fixes the time at which the contents of the i)rinted volume became evidence of the laws therein contained. XXXVI, 630. 2. The laws relating to the Army, embraced in the Eevised Statutes, became operative as to the army, ex proprio vhjore, upon the approval by the President of the body of theEevision, irrespective and independently^ of any iniblication of such laws in General Orders. XXXVI, GOG. 3. Held that an Act of IcSoG, authorizing the transfer of certain lands in Florida, (which had been reserved for military purposes,) to the Secretary of the Interior, with the consent ^ Since the date of this opinion, the Kevision of 1874 has been itself revised, under an Act of Congress of ]March 2, 1877, and the re-revision, published in 1878, and certified to by the Secretary of State, constitutes "legal evidence of the laws therein contained." This second revision, however, is not a new statute, but merely a '• new edition" of the Kevised Statutes of 1874, with additions and corrections. 140 REVISION. of the Secretary of War, and their disposition and sale as public lands, belonged to the class of ''i)rovisions of a local or temporary character" indicated in the Proviso to Sec. 5596, Eev. Sts., and was therefore not repealed by such Statutes, but, having remained unexecuted, might legally be executed at this time, (1878.) XLI, 215. asvisioN. 1. Where the record of a trial, as forwarded to the reviewing authority for his action, is deemed by him to exhibit some error, omission, or other defect, in the proceedings capable of being supi^lied or remedied by the court 5 as, for example, an inade- quate, excessive, illegal, or irregular sentence, or a finding not authorized by the evidence; or an omission of some material matter — as a failure to prefix to the record a copy of the con- vening order, or to authenticate the proceedings by the signa- tures of the iDresident or judge advocate, or to enter the i^roper statement as to the members present, or to recite as to the offer- ing to the accused of an opportunity to object to the same or as to the qualifying of the court by the prescribed oaths, or to fully record the plea, finding or sentence -, or some mere cler- ical error in a matter of form; — the court may and in general prox)erly will be reconvened by the order of the reviewing officer, (the convening authority or his successor in the com- mand,) for the purpose of correcting the record in the faulty particular, provided a correction be practicable. In a case of an omission, the object of course is that the record may be made to conform with the Jacf. If the fact is that the pro- ceeding, apparently merely omitted to be recorded, was actu- ally not had, the proposed correction cannot of course be made. There is no limit to the number of times that a court may be reconvened for a revision of its i)roceedings. It is sel- dom however reassembled a second time, where it declines on the first occasion to make the correction desired. II, 154; XI, 490; XX, GOO; XX VIII, 280, 304. 2. The order reassembling the court will jjroperly indicate the i)articular or jjarticulars as to which a revision or correc- tion is desired, or refer to i)ai)ers, accomi)anying it, in which the supx)osed omission or other defect is set forth. XI, 93. Whether to make or not the proposed correction will be of EEYISION. 441 course in the discretion of the court. The reviewing authority cannot of course compel and would not be authorized to com- mand the court to make it. VII, 112 j XXXIY, 435. 3. A correction can be made only by a legal court. At least five therefore of the members of the couit who acted upon the trial, must be present. That there are fewer mem- bers at the re-assembling than at the trial is immaterial, pro- vided five are present. I, 487; XXXY, C5G. The judge advocate should be present. I, 487. 4. It is not in general necessary or desirable that the ac- cused be present at a revision. Where, however, any possi- ble injustice may result from his absence, he should be re- quired or permitted to be present, and with counsel, if pre- ferred. Thus, where the defect to be corrected consists in an omission i)roperly to set forth a si^ecial jjlea made or ob- jection taken by the accused, it may be desirable that he should be present in order that he may be heard as to the proper form of the proposed correction. Where the error is clerical merely, or, though relating to a material particular, consists in the omission of a formal statement only, the pres- ence of the accused is not in general called for. IX, Gj3. 5. It is now settled in our law that a court martial is not em- powered, at this i^roceeding, to take or receive testimony.^ XYI, 562 ; XIX, 41 ; XLII, 275. G. The amendment can only be made by the court when duly reconvened for the purpose, and when made must be the act of the court as such. A correction made by the presi- dent or other member, or by the judge advocate, independ- ently of the court, and by means of an erasure or interlinea- tion or otherwise, is unauthorized and a grave irregularity. The correction must be wholly made and recorded in and by the formal i^roceedings upon the revision. The record of the correction, as thus made, will refer of course to the page or part of the record of the trial in which the omission or de- fect occurs ; but this part of the record must be left precisely as it stands. The court is no more authorized to correct the same by erasure or interlineation on the page, or by the sub- stitution for the defective portion of a re-written corrected statement, than would be the judge advocate or a member. ' See G. O. 47, Hdqrs. of xVrmy, 1879. 442 REVISION. II, 97; XI, 93: XYI, 202^ XXXIY, 416. [See Eecord § 1, I] 7. Wliere, after a sentence liad been dnly adjudged, and the record forwarded to the reviewing officer, a majority of the members of the court transmitted to him a written state- ment to the effect that the sentence was intended to have a certain meaning not conveyed by its terms — i. e. was not in- tended to operate as a forfeiture of certain pay clearly for- feited by it as recorded — held that such volunteer statement could have no effect as a correction of the sentence. XXXIII, 347. 8. The reviewing officer himself can have no authority to make a correction in any i^art of the record. Thus where, upon a specification duly setting forth a military offence, a court martial found an accused " guilty but without criminality ", and the reviewing commander, in disapproving this contra- dictory finding, ordered that the words after "guilty" be treated as struck out of the record, lieUl that, however ob- jectionable the finding, the reviewing officer could not himself assume to correct it, but, if he desired it amended, should have formally reconvened the court for the purpose. XII, 250. 9. Where the court has been dissolved., or, by reason of any casualty or exigency of the service, cannot practically be re- convened, there can of course be no correction of its proceed- ings. XXXI, 108. 10. The ijrocedure here contemplated is of course quite dis- tinct from the ordinary revision and correction of its proceed- ings by a court martial from day to daj" during a trial and before the record is completed. XXYII, 581. See dismissal, III ^ 7. EECORD ^ 1, I. RETIREMENT ^ 4. VARIANCE. SALE OF AEMS— SALE OF STORES. 443 s. SALE, &c., OF ARMS, &c., BY SOLDIERS. 1. Held, (December, 18GG,) that tlie provisions of s. 23, c. 75, Act of March 3, 18G3, prohibiting the sale, «&c., of their arms &c., by soldiers, and declaring that no right of property or possession shonld be acquired thereby, &c., ^Yere not limited in their operation to the period of the war, but were still in force,^ and that an officer of the army would therefore be au- thorized to seize arms, &c., disposed of contrary to such pro- hibition, whenever and wherever found. XXII, 525. But Inasmuch as there have been sundry authorized sales of arms and other ordnance stores since the end of the war, advised that ofiicers, before making seizures, should assure themselves that the parties in possession have not acquii-ed title in a legal manner. XXIX, 187, 204. SALE OF MILITARY STORES. In view of the general authority vested in the President and Secretary of War by the provision, in regard to the sale of military stores damaged or unsuitable for the public service, of the Act of March 3, 1825, (now contained in Sec. 1241, Eev. Sts.,) held that such stores might legally be sold on credit, if such mode of disposition was deemed for the public interest. XXIX, 330. That stores not damaged or unsuitable, as, for example, serviceable arms, cannot be sold by the Executive without the authority of Congress — see Public Propekty, Disposi- tion OF, &c. § 4. ^ See these provisions as now incorporated in the Revised Statutes, in Sees. 1242 and 3748. The further provision of the original Act making punishable with line and imprison- ment persons purchasing from soldiers their arms, equipments, clothing, ♦ix., has not been retained in the Kev. Sts. 444 SALVAGE. SALVAGE. 1. It is a general principle of law that public property stands on the same footing with private property as regards salvage^ and upon this principle the goods of the government are or- dinarily held liable to the same rate of salvage as those of in- dividuals, and may be arrested and proceeded against in like manner.^ But to this rule exceptions have been estab- lished. It has been held that the mails cannot be detained for salvage,^ and it has also been considered that our national ships-of-war should not be liable to arrest and detention at the suit of salvors, "on account of the injury and inconven- ience which might result to the public interests therefrom."^ This reasoning would appear to be equally ai)plicable to a case of supplies en route to armies in the field in time of war. So where certain subsistence and quartermaster stores, in transit to our armies and needed for their use, were detained by the United States marshal at Cairo, Illinois, at the suit of the salvors of a steamer sunk with, her cargo (including these sup- lilies) in the Mississippi Eiver — advised^ that the Attorney General be requested to cause the i^roper i^roceedings to be taken for the release of such stores with a view to their prompt transmission to the army. XXI, 241. 2. A citizen of a State within the theatre of the late war, in order to prevent the caj)ture by the enemy of a steamer belonging to him, caused it to be run up a small stream and concealed. It was, however, discovered by a i)artisan force, by which it was dismantled and partly sunk but not held — the owner continuing to assert, through an agent who re- mained with it, his right of property therein. Subsequently it was taken possession of, raised, refitted and used in the war by the federal military authorities. Upon an application by the owner at the end of the war, for its restoration and compensation for its use, held that not having been in fact taken from the possession of the enemy it was not subject to 1 United States v. Wilder, 3 Sumner, 308 j The Merrimac, 1 Benedict, 201 ; The Davis, 10 Wallace, 15. - The Schooner Merchant, 4 A. B. 009 j Marvin, Law of Wreck and Salvage § 122. 2 Marvin § 122 j 2 Parsons' Maritime Law, 625. SECRETARY OF WAR. 445 a claim for salvage, such as tliat allowed for property recap- tured/ or recovered from pirates j- but that the sums ex- pended by the goverument in raising and refitting it might X)roperly be offset against the amount claimed for its use. XX, 473, 485. 3. The capture from an enemy of enemy's property, though by civilians, does not entitle the captors to salvage. Thus where a steamer belonging to the enemy, and which had been used by them in the i>rosecution of the war, was removed from Xew Orleans just before its occupation by the federal forces, and concealed in Bayou Jacques where it was found and taken possession of by a detachment of United States troops and military employees, by whom a claim for salvage was there- upon interposed, — held that such claim was quite without legal sanction, the steamer having become, upon capture, under the provisions of s. 1 of the Act of March 12, 1863, c. 120, the property of the United States. XX, o6o. SECRETARY OF WAR. It is a fundamental general principle of our public law that all acts done by and directions emanating from the heads of the executive departments in the course of their administra- tive duties, are in law the acts and directions of the Presi- dent, in whom is reposed by the Constitution the entire executive power of the government, and wliom the heads of departments (except where specially invested by Congress with distinctive authority of their own^) simply act for and represent.* Thus all orders made and issued by the Secre- ' See The Amelia, 4 Dallas, 34; Bas v. Tingy, Id. 37 ; Tal- bot V. Seeman, 1 Cranch, 1; The Adeline, Id. 244; Marshall V. Delaware Ins. Co. 2 Wash. 54. 2 Davison r. Seal-skins, 2 Paine, 324: Lea v. The Alexander, Id. 4GG. ^That a Secretary may have special powers devolved upon him, iudependently of the President, by an Act of Congress — see United States v. Kendall, 5 Cranch C. C. 1G3. *Lockingtou v. Smith, Peters C. C. 472; United States v. Benner, 1 Baldwin, 238 ; Wilcox v. Jackson, 13 Peters, 498 , United States v. Eliason, 10 Id. 302 ; The Confiscation Cases, 20 Wallace, 109; United States v. AYebster, Daveis, 59; United States v. Freeman, 1 Wood. & Minot, 51 ; Locking- ton's Case, Brightlj; 288 ; United States v. Cutter, 2 Curtis. 446 SECRETARY OF WAR. tary of War in connection with the government and regula- tion of the military establishment, — such as orders convening general courts -martial, or approving and directing the execu- tion of the sentences or otherwise acting ujjon the proceed- ings of such courts, or mitigating or wholly or partially remitting punishments imi^osed thereby j or orders summa- rily dismissing officers, or dropping for desertion, retiring or accepting the resignation of, officers ; or orders establishing military reservations, or promulgating army regulations, &c., — are to be regarded as the orders and acts of the Presi- dent, whom the Secretary of War represents in the adminis- tration of his department ; the same being i)resumed to be made and issued with the knowledge and by the direction of the President, whether or not he be referred to therein as having directed or commanded the same ; and being equally as valid and ojierative as if signed by the hand of the Presi- dent himself/ Y, 319; IX, 44 ; XXUI, G54 ; XXXVII, 050 ; XXXYIII, 107, 243; XXXIX, 29G ; XLI, 25, Oil; XLII, 209 ; XLIII, 106. As to the executive authority, «&c., of the Secretary of War, for special imrposes, see particularly — Fourth Article § 3 ; One hundred and sixth Article § 2 and note; One hun- dred AND FOURTEENTH ARTICLE § 3, 5, 6 ; ARMY EeGULA- TiONS § 1, note ; Bond § 1, 4 ; Claims § 1 and note, 2, 3, ; Clothing — Loss of § 2 ; College or University § 2, 3; Contract § 1, 21, 22, 23, 25, 20, 27, 32 ; Counsel, I; Disburs- ing Officer § 1, 2 ; Dismissal, II § 3 ; Enlistment § 2, 3, 4, 9 ; General Staff ; Military Prison § 2, 3; Xational Cemetery § 1 ; Order, I § 1 ; President, I § 2 ; Post Trader § 1, 2, 3, note, 4, 12 ; Public Property — Dispo- sition OF, &c., § 2, 3, 4, 7, 11 ; W^itness § 11. 617 ; Hickev v. Huse, 56 Maine, 495 ; McCalPs Case, 5 Philad. 289 ; In matter of Spangler, 11 Mich. 322 ; I Opius. of Attys. Gen. 380 ; VI Id. 326, 587, 682 ; YII Id. 453, 725 ; IX Id. 463, 465 ; XI Id. 398 ; XIII Id, 5 ; XiV Id. 453. ^ See Wilcox v. Jackson, 13 Peters, 498 ; United States v. Eliason, 16 Id. 302 ; Hickey v. Huse, 56 Maine, 495 ; II Opins. of Attys. Gen. 67 : XIII 'id. 5 ; XIV Id. 453 ; XY Id., — , (Opinions of June '6, 1877 and March 16, 1878;) G. O. 35, War Dept., 1850. SELECTION OF QUARTERS— SENTENCE, &C. 447 SELECTION OF aUARTERS. See loss OF FILES ^ 3. SUSPENSION § 5. SENTENCE AND PUNISHMENT— IN GENERAL. [As to particular pimishineuts, see especially Ninety Sixth Article— Discharge — Dismissal, I — Disqualifi- cation — Fine — Forfeiture, II — Imprisoniment — Loss of Files — Eeduction to the ranks, II — Reprimand — Soli- tary C0NFINE3IENT — SUSPENSION.] 1. The best approved practice of military courts in deter- mining upon their sentences is believed to be as follows : For each member to write a sentence and deposit it with the judge advocate ; and for the court, after all the sentences haye been read to it by the judge advocate, to proceed to vote upon them in the order of their severity, beginning with the least severe, until some one of those proposed is agreed upon by a majority of votes. It is not essenfialj indeed, that this form of voting should be pursued — it being open to the court, in its discretion, to adopt a different one. XXI, 551. 2. That, upon a conviction by a majority vote of the court, all the members of the court, those who voted for an acquit- tal equally with those who voted for conviction, must vote for some sentence, — though formerly doubted, has long been established as a principle in our military law. While a mem- ber who voted for an acquittal cannot of course be compelled to vote a punishment, yet his persistent refusal to do so would be a neglect of duty, rendering him amenable to a charge under Art. 62. XXX, 145. 3. Where the Article of War under which the charge is ' laid is mandatory as to the punishment, (as in the cases of Arts. 6, 8, 13, 14, 15, 18, 26, 37, 38, 50, 57, 59, 61, Qo,) and the sentence imposes, in connection with the mandatory punish- ment, a further i^enalty or penalties, this addition to the sentence does not affect its legality so far as relates to the mandatory punishment : as to this it is valid and operative, though as to the rest it is a nullity. IV, 283 5 YIII, 296. 4. A punishment, adjudged upon conviction of the accused 448 SENTENCE AND PUNISHMENT— IN GENERAL. on several charges, is valid and operative provided it is a punishment legally imposable on conviction of any one of the charges of which the conviction is duly api^roved by the re- viewing authority. Thus if upon a conviction upon three charges, — of violations of Arts. 38, 61 and 62, respectively, — an officer, in connection with dismissal, is sentenced to for- feiture of i^ay, this j^unishment, being authorized upon con- viction of the third charge, though unauthorized upon conviction of either of the others, will be operative if the finding on the third charge is duly approved. XXY, 104. 5. A sentence, to be valid, must of course rest upon an ap- I)roved finding of guilty of an offence for which the accused has been tried. Thus a duly api^roved finding of guilty on one of several charges, a conviction ux)on which requu^es or authorizes the sentence adjudged, will give validity and effect to such sentence although the similar findings on all the other charges are disapproved as not warranted by the testimony. XI, 67 ; XII, 30 j XVI, 70. But a finding of guilty of a specification to a charge but not guilty of the charge itself will not support a sentence, unless indeed there is added a conviction of some lesser offence included in that charged. YII, 600 ', IX, 19. [See Finding § 8.] 6. In a case where its sentence is discretionary, a court martial may imi>ose any punishment that is sanctioned by usage, (the ^' custom of the service " referred to in Art. 84,) although, (in cases of soldiers,) the same may not be included in the list of the more usual punishments contained in par. 895 of the Army Eegulations. lY, 131, 217 -, XXII, 555 ; XXIY, 192, 479. 7. Article YIII of the Amendments to the Constitution j)rohibits the infliction of '^ cruel and unusual i^unishmeuts." While this provision does not necessarily govern courts-martial inasmuch as they are not a part of the judiciary of the United States,^ (see Court Martial, I § 1,) it should of course be observed as a general rule. Thus where for an offence not ^That the provisions of the Yth, YIth, and Ylllth Amend- ments to the Constitution, relating to criminal proceedings, api^ly only to the courts, &c., of tlie United States — see Barron v. Mayor of Baltimore, 7 Peters, 243 ; Ex parte Wat- kins, Id. 573 ; Twitched v. The Connnon wealth, 7 Walhice, 326; Edwards v. Elliott, 21 Id. 557 ; Walker v. Sauvinet, 2 Otto, 90 J Pearson v. Yewdall, 5 Id. 294; 1 Bish. Cr. L. § 725. SENTENCE AND PUNISHIVIENT — IN GENERAL. 449 peculiarly aggravated^ a court martial imposed upou a soldier, in connection with a forfeiture of pay for six months, the fur- ther penalty of carrying a loaded knapsack ^Yeighing twenty- four pounds, every alternate hour from sunrise to sunset of each day, (Sundays excepted,) during that i^eriod, held that this pun- ishment was excessive and exceptional, and — the same having been suffered by the soldier for three months — recommended that its unexpired term be at once remitted. XXVI, 520. 8. The punishment of ball and chain, though sanctioned by the usage of the service, should, in the ojnnion of the Judge Advocate General, be imi^osed only in extreme cases. Its remission has in general been recommended by him except in cases of old ofi'enders or aggravated crime, where deemed serviceable as a means of obviating violence or preventing escape. XXVI, 508, C31, CG2, GG4; XXVIII, 10, 03, 501, 532 ; XXIX, 9. This i)enalty has, (as have also those of shav- ing the head and drumming out of the service,) become rare in our army, since the further cori)oral i)unishment of branding or marking has been exxDressly prohibited by statute.^ 9. Military duty is honorable, and to imi)ose it in any form as 2b punishment must tend to degrade it, to the i)rejudice of the best interests of the service. Thus advised that a sentence ' to do extra duty' for a certain term would properly be disap- proved. XIII, 006. So advised of sentences imposing ' guard duty' for certain periods. IV, 402 ; XXVI, 507. So advised of a sentence imposing, in connection with a term of confinement in charge of the guard, the i)enalty of ' sounding all the bugle calls at the post during the same period.' XXXVII, 499. So advised in regard to a sentence which required a deserter — not for the puri)ose of making good the time lost hy his desertion but as a imnisJwient — to serve for an additional year after the expiration of his term of enlistment.^ XIV, 39G. 10. Where, while an officer or soldier is undergoing a cer- tain sentence, he is again brought to trial for a military offence, and a further sentence is adjudged him, imposing a ^ By a provision of the Act of June G, 187^2, now incorporated in the 98th Article of War. ^ See — as in accord with the spirit of this paragrajih — the following Orders: G. 0. M. O. 329, AVar Dept., 18G4; G. 0. 17, Dept. of the Missouri, 18G1 ; do. ijij, Army of the Potomac, 18G2 ; do. 3, Dept. of the Northwest, 18G4; do. 49, Middle Dept., 18G4. 29 D 450 SENTENCE AND PUNISHMENT — IN GENERAL. punislimeut of tlie same species as that which is being exe- cuted, — it is the general rule of the service that the second sentence is to be regarded as cumulative ui)on the first, and that its execution is to commence when the execution of the first is completed. This, whether or not the court, in the second sentence, may have in terms specified that the second punishment should be additional to the first ; such second punishment being made cumulative by operation of law irre- spective of any direction, (and such direction is in fact rarely expressed,) in the sentence. XXXVIII, 143, 409, 55G ; XLIII, 102. [See Imprisonment § IG, 17.] 11. Upon the conviction of an ofi&cer or soldier under a charge of a crime, such as manslaughter, robbery, larceny, &c., to the prejudice of good order and military discipline^ while the statute of the United States or State, providing for its punishment as a civil offence, may well be referred to as indi- cating the nature and extent of the punishment deemed proi^er for the same by the civil authorities, the punishment to be imposed by the court martial should nevertheless be measured less by the criminality of the act as a civil offence than by its gravity as a breach of military discipline. Thus where a soldier, having been brought to trial before a civil court for the homicide of another soldier, and inadequately sen- tenced, was subsequently tried by a general court martial for the military offence involved in his act, lield that the court would only i^roperl}' impose upon him a i^enalty proportioned to the injury done to the good order and discipline of the service, and should not, by an excessive xninishment, attempt to compen- sate for the over-lenient judgment of the civil court. XLI, 188. 12. The word '' month " or ^' months," employed in a sentence, is to be construed as meaning calendar month or months ; the same significance being given to the term as is now commonly given to it in the construction of American statutes in which the word is employed.^ The old doctrine that '' mouth," in a sentence of court martial, meant lunar mouth, has long since ceased to be accepted in our military law. XXVI, 374. Held that the term " days," in a sentence of a regimental court, requiring a soldier " to walk four days with a loaded knap- sack," &c., did not include nights, and should not be consid- ' See Moore v. Houston, 3 Sergt. & Eawle, 184 ; Sedgwick, Stat. & Const. L. 420-421 ; also 1 Eev. Sts. of New York § 4. SENTENCE AND PUNISHMENT— IN GENTERAL. 451 erecl as embracing any longer period of tlie 24 hours tlian that included between reveille and retreat. XXYI, 518. 13. It is a i^jrinciple of military law that no military authority, whether the reviewing officer, or other commander, can add to a punishment as imposed by a court martial. Neither forfeiture of pay, for example, nor line, nor a corporal punishment, can be inflicted upon an officer or soldier wiiere the sentence fails to adjudge it. And neither the fact that the punishment awarded by the court is regarded as an inadequate one,' nor the fact that the i)eriod is a time of war j can affect the api^lication of the prin- ciple. YIII, 444, 557 ; XX, 430 ; XXI, 257. Thus, where the 13unishment im^iosed by the sentence was to carry a weight of twenty pounds, held that it would be illegal for the officer charged with the execution of the sentence to increase the weight to thirty pounds. XXYII, 511. So where the sentence imposed simx3ly a forfeiture of pay, held that it was adding to the I)uuishment to order it to be executed at a military i^rison. XI, 98 ; XX, 340. So held that a sentence of simple " confinement " for a certain time did not authorize the imposition, in connection with its execution, of hard labor. XXI, 310. So held illegal to execute a sentence of ^confinement in a military i)rison' by committing the party to a State penitentiary. XXIX, G50. [And see more particularly, as to adding to the punishment in cases of sentences of confinement — Imprison3IENT §§ 7,8, 9.] Where an officer, on conviction of the embezzlement of a certain sum, was sentenced, without further penalty, to be dismissed the service, held that the department commander, in approving the sentence, could not legally order him to be confined at his station till he should make good the amount embezzled, since this would be an adding to the punishment imi)osed by the court, as well as an illegal exercise of power over a civilian. XXVIII, 122. And see XI, 405. 14. A military punishment can legally be imposed only by sentence of court-martial after a regular trial and convic- tion. Such a punishment cannot be imi)Osed by a mere order.- ^Comi)are Barwis v. Keppel, 2 Wilson, 314. -We have in our military law no system of disciplinary l^unishments. Except in a few cases, unimportant in them- selves or of rare occurrence in practice, (see Arts. 25, 52, ^jS and 54,) our code recognizes no punishments other than such as may be adjudged upon trial and conviction by a military court. In the General Orders i)unishments inflicted merely 452 SENTENCE AND PUNISH3IENT — IN GENERAL. Tlins a reviewing officer who lias disapproved tlie sentence imposed by a court martial in any case, cannot thereupon or- der an independent punishment to be suHered by the accused. VI, 105 5 VIII, 344, 505, 020 ; XI, 205, 310. So, such an offi- cer, in disapproving an acquittal, cannot order that the ac- cused be confined or otherwise punished. II, 44G, 525 5 XII, 249. So, a commander, in restoring- a deserter to duty without at the will of military commanders have been repeatedly con- demned as illegal and forbidden in i^ractice. [See G. O. 81, (A. G. O.,) 1822 ; do. 53, Hdqrs. of Army, 1842 ; do. 2, 4, War Dept., 1843; do. 39, Hdqrs. of Army, 1845; do. 645, War Dept., 1865; do. 49, Northern Dept. 1864; do. 22, Dept. of the Platte, 1867; do. 44, Id. 1871; do. 63, Dept. of Dakota, 1868; do. 106, Id. 1871; do. 40 Dept. of the East, 1868; G. C. M. 0. 112, Id. 1870 ; do. 90, Id. 1871 ; G. 0. 14, Dept. of the South, 1869; do. 1, 23, 93, Id. 1873; do. 9, Mil. Div. of the Atlantic, 1869; do. 31, Id. 1873; do. 23, Dept. of the Lakes, 1870; G. C. M. O. 50, Dept. of the Missouri, 1871.J Officers who have resorted to snch punishments have been repeatedly bronght to trial and sentenced. [See G. O., (A. & I. G. O.,) of June 30, 1821; do. 8, (A. G. ().,) 1826; do. 28, Id., 1829; do. 64, Id. 1832; do. 2, 6, GS, War Dept, 1843; do. 39, Hdqrs. of Army, 1845 ; do. 53, Dept. of Va. & Xo. Ca. 1864 ; do. 22, Dept. of the Platte, 1867; do. 9 Mil. Div. of the Atlantic, 1869; do. 14, Dept. of South, 1869; G. 0. M. 0. 50, Dept. of the Missouri, 1871.] And enlisted men, tried and sentenced for insubordinate conduct, where such conduct has been induced or aggravated by illegal corporal punishments inflicted upon tliem by supe- riors, have commonly had their sentences remitted or miti- gated, or altogether disapproved. [See G. 0. 49, 76, Xorthern Dept., 1864; do. 40, Dept. of the East, 1868; G. 0. M. O. 90 Id., 1871; G. O. 6'^, Dept. of Dakota, 1868; do. 76, Id., 1871; G. C. M. O. 45 Id., 1880; do. 93, Dept. of the South, 1873.] In proper cases of course, as where violence is employed, escax)e attempted, &c., by soldiers who are mutinous or disorderly, or in arrest under charges, force may be nsed against them ac- cording to tbe necessities of the case. [See Manslaughter § 4; also G. O. 53, Hdqrs. of Army, 1842; do. 2, War Dept., 1843; G. C. M. O. 47, Hdqrs. of Armv, 1877; G. O. 53, Dept. of Va. & Xo. Oa., 1864 ; do. 40, Dept. of the East, 1868; G. G. M. O. 112, Id., 1870; do. 90 Id., 1871; G. O. 23, Dept. of the Lakes, 1870; do. 106, Dept. of Dakota, 1871; do. 93, Dept. of the South, 1873; do. 31, Mil. Div. of the Atlantic, 1873 ; G. 0. M. O. 37, Dept. of Texas, 1880.] This, however, is ])revenUon and restraint, not lyunishment : the authority to use the needful force in such cases will not justify the supe- rior, when the offender is repressed or apprehended, in sub- jecting him to arbitrary punitory treatment. SENTINEL. 453 trial according to par. 150, Army Eegulations, is not author- ized to require him to submit to a i^unishment, as a condition to his being so restored, or otherwise. XVI, 83. 15. A legal sentence of court martial, when once duly exe- cuted^ cannot be reached by a pardon, nor revoked, recalled, modified or replaced by a milder punishment or other pro- ceeding, either by the Executive or by Congress.^ The only remedy for a party who has suffered injustice from such a sen- tence is either a new appointment to the Army by the President or some legislation within the prov^ince of Congress relieving or indemnifying him for and on account thereof. XLI, 53S ; XLII, 320. [See Dismissal, I § 5, G ; Forfeiture, II § 14 ; Pardon § 4 ; President, II § 2 j Eeviewing Officer § 8.] See seventeenth ARTICLE $ 1. THIRTY EIGHTH ARTICLE $ 10. FIFTY FOURTH ARTICLE ^ 2, 5. FIFTY EIGHTH ARTICLE $ 5. SIXTY SIXTH ARTICLE. EIGHTY THIRD ARTICLE. EIGHTY SIXTH ARTICLE $ 3. ONE HUNDRED AND SECOND ARTICLE $ 6. COURT MARTIAL, I $ 3. DISCHARGE § 8, note. MILITARY COMMISSION, III. SENTINEL. Eespect for the person and office of a sentinel is as strictly enjoined by military law as that recxuired to be paid to an offi- cer. As it is expressed in the Army Eegulations — paragraph 417 — " all persons of whatever rank in the service are re- quired to observe respect toward sentinels." Invested as the private soldier frequently is, while on his post, with a grave responsibility, it is i)roper that he should be fully j)rotected in the discharge of his duty. To permit any one, of whatever rank, to molest or interfere with him while thus employed, without becoming liable to a severe penalty, would obviously ^ The well established principles — that mere irregularities in the proceedings will not aflect the validity of an executed sentence, and that a legal sentence once duly confirmed and executed is "no longer subject to review hy the President" — so pointedly set forth (in 1843) in IV Opins. 274 — are illus- trated in two recent opinions of the Attorney General of June (3, 1877 and January 19, 1878, (XY OpinSr — .) 454 SEPARATE BRiaADE — SOLITARY CONFINEMENT. establisli a precedent highly prejudicial to the interests of the service. So^ where, in time of war, a lieutenant ordered a soldier of his regiment, who had been i^laced on duty as a sentrj^ by sui^erior authority, to feed and take care of his horse, and, ui)on the latter resijectfuUy declining to leave his l)Ost for the i)urpose, assailed him with abusive language — lield that a sentence of dismissal imposed by a court martial upon such officer, on his conviction of this offence, was fully justified by the requirements of military discipline. XYIII, 598. SEPARATE BRIGADE. See seventy THIRD ARTICLE. ONE HUNDRED AND FOURTH ARTICLE $ 6. SIGUAL CORPS. Held^ (November, 1875,) that under the i>ro visions of the Act of June 10, 1874, c. 285, and, a fortiori^ of the Act of March 3, 1875, c. 133, the stated force of the enlisted men of this Cori)s was clearly intended to be maintained as in addi- tion to or rather independent of the enlisted force of the army at large, fixed at 25,000 men.^ XXXYII, 174. See eighty FIRST ARTICLE § 1. EVIDENCE ^ 9. EXTRA DUTY PAY ^ 1. MUNITIONS OF WAR. PAY AND ALLOWANCES § 15. SOLITARY COnFmEMEHT. Held that a sentence of two months' confinement, which prescribed that the confinement for two days out of every three should be solitary, Avas unauthorized as transcending the proportion fixed by the Army Eegulations, par. 895 ; — such sentence in fact requiring that the confinement should be solitary for forty days out of sixty, while the Eegulations authorize but eighty four days of solitary confinement in an entire year. XXVIII, 329. ^This intention has been since quite unmistakably ex- pressed, in the Appropriation Acts of June 23, 1879, and May 4, 1880. SPECIF ICATIOIs' — SPY. 455 SPECIFICATION. See CHAPtGE, FINDING $ 1, 2. SPY. [Sec. 1343, Rev. Sts. All persons who, in time of ^var, or of rebellion ajainst the supreme authority of the United States, shall he found lurking oi acting as spies, in or about any of the fortifications, posts, quarters, or eicampments of any of the armies of the United States, or elsewhere, shall b« triable by a general court-martial, or by a military commission, and slall, on conviction thereof, suffer death.] 1. Sec. 1343 is one of the few provisions of our law autlior- idng the trial, in time of war, of civilians, by military coiuts. 'The majority, however, of the persons brought to trial as ^ies during the late war were members of the army of the enemy. The gravamen of the offence of the spy is the treach- ery or deception practised — the being in disguise or acting under false pretences.^ An officer or soldier of the enemy dis- covered "lurking" in or near a cami) or post of our army dis- guised in the uniform or overcoat of a U. S. soldier is prima facie a spy, and liable to trial as such. XIV, 579. So an officer or soldier of the enemy who without authority and covertly penetrates within our lines disguised in the dress of a civilian, may ordinarily be presumed to have come in the character of a spy, unless, by satisfactory evidence that he came for some comi)aratively venial purpose, as to visit his family, and not for the purpose of obtaining information, he may rebut the i)resumption against him and show that his offence was a sim^Dle violation of the laws of war. II, 377, 580 ; lY, 307 •, Y, 315, 572 ; YII, 06. 2. Where an officer of the enemy's army, arrested while lurking in the State of New York in the disguise of a citizen's dress, was shown to have been in the habit of passing, for hostile purposes, to and from Canada, where he held com- munication with agents of the enemy, and conveyed intelli- gence to them — JwJd that he was amenable to trial as a spy before a militarj^ court under the statute. XI, 474. ' Halleck, Int. Law, 406-7. i56 SPY. 3. An officer of tlie enemy's army^ liavmg come secretly witliin our lines, proceeded from Baltimore tbrongh a part of tlie coantr}^ containing numerous military i^osts, &c., to Detroit, where he entered Canada, communicated with the enemy's agents there and received from them letters to bs conveyed to Richmond. On his return, while travelling undo* an assumed name, and disguised by citizen's dress and ai artificial coloring of the hair, he was recognized and arrestee, and upon his arrest destroyed at once his pai^ers. Reld that he might properly be brought to trial and his ofience investi- gated under a charge of being a spy, and that his claim that he Avas merely a bearer of official dispatches was entitled 1o but slight consideration in view of the fact that he had takea the first opportunity to destroy the evidence on which sudi claim was based. XY, 14. 4. Where a soldier of the enemy's army, separated from t on its retreat from Maryland in 1864, was arrested, after wandering about in disguise within our lines for a montl^ seeking for an oj^portunity to make his way to the enemy'i forces and join his regiment, held that he was not properly chargeable with the ofience of the si)y but should be treated as a prisoner of war. XI, 82. 5. A mere violation of the law of war prohibiting inter- course between belligerents, committed by a civilian in com- ing without authority within our lines from the enemy's country, cannot proi)erly be regarded as attaching to him the character of the spy. IX, 95. G. The si^y must be taken in flagrante delicto. If he suc- ceeds in making his return to his own army or country, the crime, according to a well settled principle of public law, does not follow him, and, if subsequently captured in battle or otherwise, he cannot properly be brought to trial as a spy.i y, 280, 248 5 IX, 100; XXIII, 459. ^ The leading case on this point in this country is — In the matter of Martin, reported in 45 Barb. 142, and 31 How. Pr. 228. STATEMENT OF ACCUSED. 457 STATEMENT OF ACCUSED. 1. In any case tried by court martial the accused may, if he thinks proper, (and whether or not he has taken the stand as a witness,^) present to the court a statement or address either verbal or in writing. Such statement is not evidence:^ as a personal defence or argument, however, it may and IDroperly should be taken into consideration by the court. XX, 432. 2. While the statement is not evidence, and the accused is not in general to be held bound by the argumentative declara- tions contained in the same, yet, if he clearly and unequivocally admits therein facts material to the prosecution, such may I)roperly be viewed by the court and reviewing officer as prac- tically in the case.^ XXVII, 407. So, where the accused, in his statement, fully admits that certain facts existed sub- stantially as proved, he maj' be regarded as waiving objec- tion to any irregularity in the form of the j)roof of the same. XXVII, 385. 3. A large freedom of expression in his statement to the court is allowable to an accused, esi)ecially in his comments upon the evidence. So, an accused may be permitted to reflect within reasonable limits upon the apparent animus of his accuser or prosecutor, though a superior officer and of high rank. But an attack upon such a superior, oi 'a^ jyersonal character and not apposite to the facts of the case, is not legitimate ) nor is language of marked disrespect employed toward the court. Matter of this descrix)tion may indeed be required by the court to be omitted hy the accused as a con- dition to his continuing his address or fihng it with the record. XXVII, 520. 4. It is settled in our military i^rocedure that the closing ^See G. C. M. O. 3, Dept. of the Missouri, 1880. - That a sworn statement cannot be made to serve as the testimony of the accused as a icitncss under the Act of March 1(), 1878— see Witness § 2. ^ Similarly as a fact clearly admitted or assumed in the course of a trial may be considered as much in the case as if it had been expressly proved. See Paige v. Fazackerly, 3G Barb. 392. 458 STATUTES— CONSTRUCTION OF. statement or argument, where addresses are presented on botli sides, shall be made on the part of the prosecution. The judge advocate, however, may, and, in i^ractice, not rarel}' does, waive the right of oflering any argument or remarks in reply to the address of the accused. On the other hand, the accused may waive the right, and the judge advocate alone present a "statement." XI, 377. 5. The imhllcaf ion by an officer, after his acquittal, of the statement presented by him to the court on his trial, in which he reflected in violent and vituperative language upon the motive and conduct of an ofiicer of the same regiment, his accuser, and denounced him as devoid of the instincts of a gentleman and a disgrace to the service, — held to constitute a serious military offence, to the prejudice of good order and military discipline, if not indeed a violation of Art. 01 j and further that it was no defence to such a ijublication that the court on the trial had permitted the statement to be made and recorded. XXXIII, 582 -, XXXIV, 186. [See Sixty Sec- ond Article § 5.] See judge ADVOCATE § 21. PLEA «5 3, 6. STATUTES— COIJSTEUCTIO^ OF. I. Miscellaneous enactments. 1. In api)lying the Articles of War to jmrticular cases, the terms of the same should in general be strictly construed as against the United States and in favor of the i^arty accused, and a case should not be treated as within the penal i^ro- visions of an Article unless it is quite clearly included by the words of description employed.^ XXXYIII, 199. 2. It is well settled that the word '' may," in a statute con- ferring i)ower upon a public officer, is to be construed as equivalent to "must" or "shall," where the enactment im- poses a i)ublic duty, or makes provision for the benefit of individuals whose rights cannot be effectuated without the ^Criminal statutes are inelastic, and cannot be made to embrace cases plainly without the letter, though within the reason and i)olicy of the law." State v. Lovell, 23 Iowa, 304. STATUTES— CONSTRUCTION OF. 459 exercise of the power.^ So where the Secretary of War was " authorized " by an Act of Congress to reopeu a settlement previously made with a railroad company for government transportation, &c., adjust the same upon a certain stated basis, and issue his warrant on the treasury for such amount as might be found due the comjiany on such re adjustment, held that the statute did not confer a mere discretionary authority but was mandatory upon the Secretary.'* XLII, 328. 3. While there is a distinction between a statute in which a public official is ''authorized," and one in which he is "re- quired" or "directed," to perform a certain act, in that a discretion is in general conferred by a statute of the former class ; yet where the Secretary of War was authorized by an Act of Congress to sell a portion of a military reservation "at such times as he may deem most advantageous to the interests of the government, and in such manner as herein- after provided," and further i)rovision was made in the Act in regard to the laying out of a i^art of the land in lots before sale, and as to the mode of sale and the notice to be given of the same, held that it was evidently contemplated by Congress that the sale should be made at some time — a public duty being thus far imposed, and accordingly that the Secretary could not i)roperly omit to proceed with such sale for any considerable period, unless it was found to be clearly for the public interests to postpone the same. XXVII, ^25. 4. Held that the remarks of members of Congress in a de- bate on a Bill, as to the purpose of the proposed measure, the reasons for adopting the same, &c., did not ordinarily consti- tute a safe basis for the accurate construction of the same after it had become enacted.^ XXXVII, G5(J. ^See Minor v. Mechs. Bk. 1 Peters, 46; Supervisors v. IJnited States, 4 Wallace, 435, and cases cited ; also Fowler V. Firkins, 77 Ills. 271 ; Kans. P. P. P. Co. v. Peynolds, 8 Kaiis. 028; People v. Comrs. of Buffalo Co., 4 Xeb. 150. On the other hand, see Fifty Eighth xVrticle § 2, — for an instance in which "shall" in a statute is interpreted as meaning mai/. - See concurring opinion of the Solicitor General of April 13, 1877, (XV Opins. — ;) also Supervisors v. United States, 4 Wallace, 435. =*"In expounding a law, the judgment of the court cannot be intluenced in any degree by the construction placed upoij it, 460 STATUTES— CONSTRUCTION OF. 5. Where a statute clearly requires a thing to be done in a I)articular mode and form, the same cannot legally be varied from in material details by the officer charged with the per- formance.^ Thus, where Congress appropriated certain funds for a Bridge, which, it was exi)ressly specified in the Act, was to be erected according to a certain designated plan which had been recommended for the i^ur^^ose by the Chief of Ord- nance, — field that the construction of the Bridge in accord- ance with such a i:>lan was a condition to the due expenditure of the money appropriated, and that the plan could not legally be departed from in the construction.^ XXYIII, 664. of .individual members of Congress, in the debate which took place on its passage, nor by the motives or reasons assigned by them for supporting or opposing amendments that were offered." Taney C. J. in Aldridge v. Williams, 3 Howard, 24. So, in Lockington's Case, Brightly , 289, it was held by the Supreme Court of Pennsylvania, per Yeates, J, as follows: " I regard the true meaning of the law, to l3e collected ex visceribus suis, as the only correct ground of decision thereon. It is of no moment, in my idea, how it was treated by differ- ent gentlemen on the floor of Congress." And see United States i\ Union P. E. E. Co., 1 Otto, 79 ; Leese v. Clark, 20 Cal. 387 ; Keyport &c. Co. v. Farmers «&c. Co., 18 N. Jersey Eq. 13 ; XIII Opins. of Attys. Gen. 368. But it is said by Mr. Justice Field, in Ah Kow v. Xunan, 5 Sawyer, 560, that while " statements in debate cannot be resorted to for the l)urpose of explaining the meaning of the terms used," the same '' can be resorted to for the purpose of ascertaining the general object of the legislation i)roposed and the mischiefs sought to be remedied." In a recent oi)inion of Aug. 23, 1879, (XYI Oi^ins, — ,) the Attorney General remarks that the construction of a statute, when doubtful, may be aided by a reference to the debate when the members concurred as to the purpose of the meas- ure, but scarcely so when they expressed different views on the subject. In another opinion of April 24, 1877, (XY Opins. — ,) the Solicitor General, in referring to the general rule, (as held in the text,) cites the case of Bank of Pa. v. Commonwealth, 19 Pa. St. 156, to the effect that "it is delu- sive and dangerous to admit messages of governors, journals of the legislature, or rei)orts of committees, to aid in constru- ing statutes." ^See Commissioners v. Gaines, 3 Brev. 396. ^See concurring opinion of the Atty. Gen. in XIII Opins. 78. STATUTES— CONSTRUCTIOX OF. 461 II. Proposed legislation peoyiding for the restora- tion, &C., OF DISMISSED OFFICERS, AND REFERRED TO THE Judge Advocate General for remark. 6. Upon a Bill, by which it was proposed to restore a dis- missed officer to the army by declaring his ' record amended so that he should appear to have been continuously in serv- ice,' — remarlced that such Bill was not in a usual or proper form for efl'ecting the object designed ; that the obliteration of the record of an officer's dismissal on the books or rolls of the War Department would be wholly inoperative per se to reinstate the officer; moreover that the legislative department of the government was without authority to restore such an officer to the army but could only authorize his restoration by the appointing power.^ XXXVI, 21G. 7. Upon a Bill which authorized the Secretary of War to give an "honorable discharge" to a dismissed officer, as of the date of the order of the President approving the dismis- sal, — remarl'cd that as this officer had, by his dismissal, been completely separated from the army and had become a civil- ian, he could not be discharged from the army, without being- readmitted to it, and that he could not be so readmitted with- out a new appointment, (see Dismissal, I § 6;) further that while the Bill might possibly be construed as authorizing the Executive to reapi)oint the officer, such construction would be a forced and unnatural one, — the Bill, as it stood, being really repugnant to the provisions of the Constitution in re- gard to appointments, — and that it would therefore be prefer- able that the Bill should be so amended as simply and directly to authorize the appointment of the officer according to the approved precedents of legislation in such cases. XXXVIII, 59. 8. Upon a Bill in which the "Secretary of War" was author- ized and directed to restore a dismissed officer to the rank of Captain as of the date of his dismissal, — remarlced that while such Bill, if enacted, might, in order to give it a legal effect, probably be deemed sufficient to confer upon the Executive an authority to exercise the appointing power, yet that the ^ There was subsequently substituted for this BiU one au- thorizing the appointment of the officer in the usual manner, which became an Act. But see, in this connection, the opin- ion of the Atty. Gen. in a similar case in XIV Oi)ins. 418. 4G2 STATUTES— CONSTRUCTION OF. same was in terms inadmissible and tended to establish a bad pre cedent J and would therefore preferably be amended, so as to conform to the usual and proper course of legislation in such cases.^ XXXYIII, 61. 9. Where an Act of Congress authorized the President "to restore " a person, described as late a paymaster of tbe army, " to the Army Eegister, for the i^urpose of being placed on the retired list," — held that this enactment, though inaptly expressed, might properly be construed as intending to exer- cise the power conferred upon Congress by Art. II, Sec. 2, par. 2, of the Constitution, of vesting ''in the President alone " the appointment of an ''inferior" ofdcerj and there- fore that a simple appointment by the President of this offi- cer, without any nomination to or confirmation by the Senate, (followed by his retirement b^^ the President with the rank of major,) would be a legal and constitutional exercise of authority, constituting as valid and effectual an appointment and reinstatement as if the officer's name had been, in the first instance, sent to the Senate and favorably acted upon, and a commission had thereupon been issued to him. XLII, 178. And similarly Jield in a case in which, by Act of Con- gress, the President was "authorized to reinstate" a "major, late of the United States Army, and to retire him in that grade as of the date he was iDreviously mustered out } and remarl^ed that such construction was especially justified in a case like the present, where — as gathered from the reports of the Com- mittees of the two Houses, upon the recommendation of which the Act was passed — the evident intent was simply to have reinstated in his former i)osition an officer who had been dis- placed from the same through injustice or error.^ XLII, 196. [See Appointihent § 3.] 10. In the case referred to in the last paragraph the Act, (as above cited,) authorized the reinstatement of the officer " as of the date he was i)reviously mustered out, charging him," ^ This bill did not become law, but there was subsequently passed an Act authorizing the President, in his discretion, to ai^i^oint the oflicer, with the concurrence of the Senate. ^See the concurring decision of the Court of Claims in this case — Collins v. United States, 14 Ct. CI. 5GS ; tbe Solicitor General, however, in a i^revious opinion of Ai^ril 10, 1879, (XVI Opins. — ,) having held contra. STATUTES— CONSTRUCTION OF. 463 as it was added, '' with all extra pay and allowances paid liim at that time." Held that this officer, upon his reinstatement, was entitled to the pay of a major from the date of his muster out, (under the Act of July 15, 1870, less the extra '' one year's pay and allowances" then paid him in accordance with the provisions of sec. 12 of the same.^ XLTI, 192-103. 11. An Act of Congress, in declaring in substance that an officer was unjustly and erroneously mustered out of the serv- ice in January 1871, proceeded to authorize the President ''to restore him to his proper rank and i^romotion in the armj' with directions to the Secretary of War, on account of his disabili- ties incurred in the line of duty, to place him on the retired list.'' The officer, had he not been mustered out, (as a captain,) would have attained the rank of major on Dec. 10, 1873. Held., on construing this Act in connection with the emphatic favorable reports upon the case of Committees of the two houses of Congress, that the intent of the Act clearly was to reinstate completely this officer so far as his rank was con- cerned, and that the President was therefore authorized, (by appointment without the concurrence of the Senate — see § 9,) to restore the officer to the army as a major with rank from Dec. 1 0, 1873, and thereupon to cause him to be placed upon the retired list as an officer of the army of this rank. XLII, 246. 12. An Act of Congress required the Secretary of War to order a court martial or court of inquiry " to inquire into the matter of the dismissal " of a certain officer who had been summarily dismissed by the President in 18G3, and further empowered such court " to confirm or annul the action " by which he was dismissed, adding that its "findings" should "have the eflect of restoring" the party "to his rank with the promotion to which he would be entitled if it be found that he was wrongfully dismissed, or to confirm his dismissal if it be otherwise found." Under this Act the Secretary of War ordered a court of inquiry which found that the officer had been " wrongfully dismissed," and declared the dis- missal to be a nullity. The Act and record of the court hav- ^ This opinion was also concurred in by the Court of Claims in a second decision in the same case, United States v. Col- lins, 15 Ct. CI. — . And see the similar conclusion, as to the right to pay, of the Solicitor General, in opinion of April 10, 1879, (XVI Opius — .) 464: STEALING— STENOaRAPHER. iug been referred by tlie Secretary of War to tlie Judge Ad- vocate General for opinion as to the executive action proper to be taken, if any, — held tliat tlie only manner in which a dismissed officer, or other civilian could be admitted to the army was by an appointment made i)ursuant to the i)ro visions of Art. II, Sec. 2, par. 2 of the Constitution ; that Congress was not empowered to appoint a civilian as an officer of the army, or to authorize a military court to make such an appoint- ment ; ^ that the Act, in authorizing the restoration of the officer by and upon the favorable finding of the court, was clearly unconstitutional and inoperative ; further that no im- plied authority for an appointment of the officer by the Presi- dent could properly be gathered from the Act.^ And added— that the imnciple of that extreme instance of a liberal con- struction of a statute in favor of the exercise of the appointing power presented in the opinion of the Attorney General in the case of Lieut. Yon Luettwitz, (XIY Opinions, 448,) could not be extended to the present case, since by this Act the function of the executive department was in terms confined to the or- dering of the court -, the authority to appoint, so far as any was conferred, being expressly reserved by Congress to itself, or rather to the court. XLII, 297. STEALIETG. See larceny. STEHOGEAPHER. See reporter. ^ A military court, being no part of the U. S. judiciary, (see Court Martial, I § 1,) is of course not included in the '' courts of law " to which a xwwer of appointment of '' inferior" officers is authorized to be given by Art. II, Sec. 2, jjar. 2, of the Constitution. Moreover this power, as interi)reted by the authorities, properly extends only to the api:>ointment, by the U. S. Courts, of their own inferior officers, such as clerks, reporters, or bailiifs. See IV Opins. of Attys. Gen. 104 j XI Id. 213 ; Ex parte Ilennen, 13 Peters, 258; Story's Com. on the Const. § 1530. -This conclusion, however, was not accepted, and the ap- X)ointment was matle and confirmed. STOPPAGE. 465 STOPPAGE. 1. The pay of an officer or soldier cannot be subjected to stoppage except by the authority of a statute or regulation specifically authorizing the same or of a sentence of court mar- tial imposing a forfeiture or tine as a punishment, or ^Yhere the party has become indebted to the United States on account. In a case of supposed liability to stoppage, resulting from a neglect or an act chargeable as a military ofience, and as to which the facts are disputed, it is in general preferable to have the case investigated and the actual pecuniary liability, if any, fixed by a trial by court martial. XXX, 293 ; XXXIII, 445. A superior is not authorized to stop against the pay of an infe- rior the value of property charged to have been criminaUy mis- appropriated, (III, 628; XXI, 139;) and it is the experience of the Judge Advocate General that most or many of the cases of loss of or injury to public property in which the facts have been investigated and the damage assessed by boards of survey, would have been more profitably i^assed uj^on by courts martial, by which, instead of a stoppage, a forfeiture could have been imposed, as a punishment^ by sentence. XXX, 293; XLIII, 217. 2. The United States is not authorized to stop against the pay of an officer or soldier an amount of personal in- debtedness to another officer or soldier, though such indebt- edness may have grown out of the relations of the military service. Thus, in the absence of a sentence of court martial forfeiting the same, an officer's pay cannot legally be stopped with a view to the reimbursement of enhsted men who have deposited with him money for safe keeping, which he has failed to return when requrred, the officer being accountable for the same in a i)ersonal capacity only. XII, 510 ; XVI, 037. 3. Held that for a liability incurred upon a first enlistment, a soldier could not legally be subjected to a stoppage against the pay due him upon a second enlistment ; the latter being a separate and independent contract between the man and the government, the right to the consideration money due upon which, (as fixed by statute,) could not be any more sub 30 D ^66 SUBSISTENCE STORES. ject to be imj)aired by an obligation growing out of and at- tached to a different and distinct contract than by an obliga- tion incurred ui:)on a contract between the United States and another soldier. XLIII, 186. So where the amount of an installment of bounty, paid to a soldier upon his being dis- charged from an enlistment, was stopped, as having been im- proi)erly allowed, against the i)ay of the soldier, upon his subsequently reenlisting, held that such stoppage was unau- thorized and illegal. XLIII, 218. See seventeenth ARTICLE $ 1. FIFTY FOURTH ARTICLE $ 2. DESERTION ^ 14. FINE $ 2. SUBSISTENCE STORES. 1. Where subsistence stores were sold, by a post commis- sary of subsistence, to a mess of three ofiQcers of the post, and charged to the mess as such, held that such mess was not in the nature of a commercial partnership in which each mem- ber was bound for the joint indebtedness, but was simply an association, for purjioses of convenience and economy, of three individuals, each of whom was bound to the United States only for his proportion — one third — of the account. And held that a member W'ho had paid his proportion to one of the other members who acted as caterer but who had de- ceased without paying over this amount to the Commissary, remained liable for such proportion to the United States. XLI, 155. 2. Meld, (August, 1879,) that the "ten per cent," directed by the Appropriation Act of June 23, 1879,^ to be added to accounts for subsistence stores "sold to ofiQcers and men" of the army, could not legally be added to the cost of the sub- sistence stores furnished for the i:)risoners at the Leavenw^orth Military Prison ; such i:>risoners not being embraced in the class referred to in said Act, but being provided for by a separate and distinct api)roiiriation for the support of the Prison, contained in the Act of March 3, 1879, c. 182, and which is unaccompanied by any such requirement. XLI, 651. ^ And see a similar provision in the Army Apj^ropriation Act of May 1, 1880. SUPERINTENDENT— SUPERNUMERARY LIST. 467 3. Held that the ten per cent, required by the Act of June 23, 1870, to be added to the cost of subsistence stores sold to officers and soldiers, '' to cover Tvastage, transportation, and other incidental charges," was to be added in every instance of such sale, whether or not there had been any wastage &c., in the case of the particular article or articles soldj the "charges" intended to be covered being understood to be charges incurred in connection with the stores sold or kept for sale as a whole. XLIII, 100. 4. Held that the provision of the Act of June 23, 1870, in regard to the adding of ten per cent, to the cost of subsist- ence stores sold to officers and soldiers, was to be viewed as qualifying the provisions of Sees. 1144 and 1145, Eev. Sts., and thus as applying only to stores sold by the United States, through the Subsistence department. So held that it did not apply to sales made directly to officers and soldiers by con- tractors under contracts expressly stipulating for such sales to be made by them. XLIII, 100. See claims $ 10. SUPERIUTEHDENT OF CEMETERY. See sixty THIRD ARTICLE $ 8. CIVIL PROCESS ^ 4, note. NATIONAL CEMETERY ^ 5, 6. SUPEEIJUMERARY LIST. [Act of July 15, 1870, c. 204, s. 12.] Held that it was clearly the contemplation of this statute that the President, though not absolutely in terms required to transfer officers to the supernumerary list prior to January 1, 1871, would in fact do so, so that all the officers classed as supernumerary would be equally eligible to appointment to vacancies occurring prior to said date; preference only being given to those of superior rank, length of service and fitness. So, advised that the case of an ai)parently meritorious officer who was placed on the supernumerary list and mustered out on one and the same date, January 1, 1871, and thus deprived of all claim or opportunity to be so appointed, was not equita- bly disposed of, and for this reason would commend itself to 468 SURGEON— SUSPENSION. the favorable consideration of Congress in connection with an application on the part of the officer for relief and restora- tion. XXXIX, 570. See pay AND ALLOWANCES $ 10. SURGEON. See medical OFFICER. SUSPENSION. 1. The punishment of suspension, as imposed by sentence, is usually in the form of a suspension from ranlc^ or from command^ for a stated term, sometimes accompanied by a suspension from pay for the same period. Suspension from rank includes susi)ension from command. VII, 7, 8. 2. A suspension from rank does not affect the right of the officer to his office. He retains the same as before, and, as an officer, remains subject as before to military control as well as to the jurisdiction of a court martial for any military offence committed i)ending the term of suspension.^ XXX, 157 j XXXYII, 536; XXXVIII, 221; XXXIX, 436. 3. The effect of a suspension from rank, (beside detaching the officer from the performance of the duties incident to his rank,) is to deprive him of any right of promotion to a va- cancy in a higher grade, occurring pending the term of sus- pension, and which he would have been entitled to receive by virtue of seniority had he not been suspended \ such right accruing to the officer next in rank. [See Promotion § 4.] But no such loss of i)romotion is incident to a mere suspen- sion from command. VII, 8; XXVIII, 164; XXXVII, 536. 4. Suspension from rank does not, however, deprive the officer of the right to rise in files in his grade, — upon the pro- motion, for examjile, of tbe senior officer of such grade. The number of an officer in the list of his grade is not an incident of his rank but of his appointment to office as conferred and dated, and — as we have seen — suspension does not affect the office. Moreover loss of files is a contiuiiing punishment, and if held to be involved in suspension from rank, the result VSee V Opins. of AttysTOeny 7407^1(17715^ SUSPENSION. 469 would be that, for au indefinite i>eriod after tlie term of sus- pension had expired, the officer would remain under punish- ment, the sentence imposed by the court being thus added to in execution, contrary to a well known principle of military law. XXXIII, 09. [See Sentence and Punishment § 13.] 5. It is further the effect of a suspension from rank that the ofiicer loses for the time the minor rights and i)rivileges of i^riority and precedence annexed to rank or command. Among these is the right to select quarters relatively to other officers. And where quarters are to be selected by several officers, one of whom is under sentence of suspension from rank, the suspended officer necessarily has the last choice. Or rather he has no choice, but quarters are assigned him by the commander ; for, being still an officer of the army, though without rank, he is entitled to some quarters. But advised that an officer sentenced to be suspended from rank could not, because of such suspension alone, be dei>rived of quar- ters previously duly selected, and occupied at the time of the suspension ', such a sentence not affecting a right previously accrued and vested. XXYII, 241 j XXIX, 6725 XXXVII, 536. 6. Suspension from rank does not involve a status of con- finement or arrest. YII, 242. In sentencing an officer to be suspended from rank, it is indeed not unusual for the court to require that he be confined during the term of suspension to his proi)er station, or that of his regiment, &c., i. e. that the sentence be executed there. Where this is not done, — while the suspended officer is not entitled to a leave of absence, it cannot affect the execution of his sentence to grant him one, and leaves of absence are not unfrequeutly granted under such circumstances. XXXVI, 226. 7. Susi)ension from rank or command does not involve a loss or authorize a stoppage of pay for the period of suspen- pension.^ Pay cannot be forfeited by implication. [See FoK- FEITURE, II § 2.] Unless therefore the sentence imposes a suspension from rank (or command) ''and j^rt^/," or in terms to that effect, the suspended officer remains as much entitled to his pay as if he had not been suspended at all, and to re- quire him to forfeit any pay would be adding to the xmnishment and illegal. XXIII, 427; XXVIII, 164. ' SeeTv Opins. of Attys. Gen. 444; VI Id. 203. 470 SUSPENSION. 8. Where, liowever, the suspension is extended by the sen- tence to paj^, the i)ay is forfeited absohitely, not merely with- held. And all the pay is forfeited, unless otherwise expressly indicated in the sentence. XXIII, 556. The forfeiture, im- posed by a sentence of suspension from rank, (or command,) and pay for a designated term, is a forfeiture of the pay of that specific term, the suspension of the rank and that of the l)ay being coincident. Under such a sentence the officer can- not legally be deprived of pay due for a period x)rior to the suspension. XXII, 113. Where an officer was sentenced to suspension from rank and pay for six months, held that his entire pay for those months was absolutely forfeited, notwith- standing that the pay of officers of his grade was increased by statute pending the term. XXI Y, 4G2. 9. A sentence of suspension from rank and pay does not affect the right of the officer to tlie allowances which are no part of his x)ay^ — (see Pay and Allowances § 1,) — as the allowance for rent of quarters, as also the allowance for fuel or rather right to purchase fuel at a reduced rate. XXIX, 612; XXXVIII, 426. 10. The status of an officer under suspension is the same whether such suspension has been imposed directly by sen- tence, or by way of commutation for a more severe punish- ment. Thus where a sentence of dismissal w^as commuted to suspension from rank on half pay for one year, held that the officer, while forfeiting the rights and privileges of rank and command during such term, was yet amenable to trial by court martial for a military offence committed pending the same. XXXVIII, 426. 11. Where an officer, when under a sentence of suspension, is ordered by the commander who approved the sentence, or some higher comi^etent authority, to resume his command or the performance of his regular military duty, such order will in general operate as a constructive remission of the punish- ment and thus terminate l^e susi^jension.^ XXV, 412. [See Pakdon § 8.] 12. In rare cases the form, ''to be suspended from the serv- ice," has been employed in the sentence. Such a suspension is equivalent in substance to a suspension from rank. XXIII, ^ McXaghten, 27. 2 See McXaghten, 22. i SUSPENSION. 471 427. A still rarer form, ^^'to ha suspended from duty," has beeu deemed to be practically equivalent to a sentence of suspension from command.^ VII, 242. These forms are now quite disused. 13. A sentence, "to be suspended from the Military Acad- emy," in a case of a cadet, ^practically severs him from the military service as a cadet during the term of the suspension. It is usually added in such a sentence that, at the end of such term, the party is to join the next lower class. XXIII, 427. 14. Like dismissal, suspension takes effect uj)on and from notice of the approval of the sentence officially communicated to the officer, either by the promulgation of the same at his station, or, — where he is absent therefrom by authority, — by the delivery to him of a copy of the order of ai)proval or other form of official persoual notification of the fact of the approval. XXV, 527; XXVII, 241; XXXIII, 109; XXXVIII, 341. [See Dismissal, I § 3; Order, I § 2.] 15. Suspension, as a punishment for a non-commissioned offi- cer, is not authorized in terms in Art. 101, nor is it contem- plated in the Army Eegulations. It has been adjudged in but rare cases,^ and cannot be regarded as sanctioned by I)rinciple or usage. XXVI, 358. 16. Suspension not divesting the officer of his office or com- mission, but simply holding in abeyance the rights and func- tions attached to his rank or command, he properly reverts, when the term of the punishment is completed, to Lis former rank and the command attached thereto, and continues to hold and exercise the same, as before his arrest or trial.^ XXX, 247. See leave OF ABSENCE $ 2. LOSS OF FILES ^ 4. EETIREMENT s^ 8, II. ^ Suspension from duty, as distinguished from suspension from rank, is a recognized punishment in the naval service. Xavy Eegulations, Art. 32, sec. 2; Harwood, 134-5. 2 See a "comparatively late instance in G. C. M. O. 33, Dept. of the East, 1872. ^Sullivan, who, (p. 88,) traces this punishment to *'tbe ecclesiastical jurisdiction, wliich admitted suspension as a minor excommunication," adds, in regard to the officer sen- tenced: — ''At the expiration of the term of suspension, he be- comes a perfect man again." 472 TAX. T. TAX. 1. The authorities of a State or Territory, (or, of course, of a county, town, &c.y) are not empowered to tax an officer or soldier of the army on account of his pay, or for any i)ersonal property in his possession properly required for the due exer- cise of his office or performance of his military duties. Offi- cers and soldiers of the army are instrumentalities provided by law to enable or assist the President to exercise his con- stitutional function of Commander-in-chief and Executive of the nation. The pay and emoluments furnished them by Congress are means to make their services possible and effective, and their right to receive and enjoy the same cannot be in any degree imi^aired or infringed upon by tbe authorities of a distinct and inferior sovereignty. And the same princi- ple of exemption i^roperly ai)i)lies to their arms, equipments, horses, and other personal property required to be possessed and employed by them in the military service.^ XXX, 215 j XXXIX, 5G3. ^ In the leading case applicable to this subject — Dobbins v. Commissioners of Erie county, 16 Peters, 435 — the Supreme Court of the United States, in declaring to be unconstitutional a State statute, so far as it authorized thetaxiug of the office of a captain in the 'U. S. revenue service, held as follows : " The compensation of an officer of tbe United States is fixed by a law made by Congress. It is in its exclusive discretion to declare what shall be given. It exercises the discretion and fixes the amount, and confers upon the officer the right to receive it when it has been earned. Any law of a State imposing a tax upon the office, diminishing the recompense, is in conflict with the law of the United States which secures the allowance to the officer." Further : " Taxation by a State cannot act ui^on the instruments, emoluments and persons TAX. 473 2. The principle exempting from taxation the office or sal- ary of an officer of the United States applies to officers on the retired list equally as to those on the active list of the army. Eetired officers being a part of the array, are a part of the machinery of the Government, though a part not often called into active operation. XXXVI, 154, 291. But though a retired officer cannot legally be taxed by State or municipal authorities on account of his army i)ay as property or income, he is subject to be taxed for other property owned and held at his i^lace of residence, like any other citizen. XLII, 669. 3. The question of residence is one of i)ersonal intent : a which the United States may use and employ as necessary and proper means to execute their sovereign powers. * * * The State governments cannot lay a tax upon the constitu- tional means employed by the government of the Union to execute its constitutional powers." In a later case, Society for Savings v. Coite, 6 Wallace, 605, the same Court declares: ''All subjects over which the sovereign i)ower of a State ex- tends are, as a general rule, proi)er subjects of taxation, but the i)ower of a State to tax does not extend to those means which are employed by Congress to carry into execution the liowers conferred in the federal Constitution. Unquestion- ably the taxing power of the States is very comi>rehensive and pervading, but it is not without limits. State tax laws cannot restrain the action of the national government, nor can they abridge the operation of any law which Congress may constitutionally x^ass." This general doctrine is applied by Atty. Gen. Black, (IX Opius. 477,) as follows: ''The authorities of a State cannot impose a tax upon the salary of a federal officer, or upon the comi)ensation i^aid by the United States to any person engaged in their service." And as illus- trating the principle involved, see also McCullochr.]\Iaryland, 4 Wheaton, 316; Westun v. Charlestown, 2 Peters, 449; Sea- right V. Stokes, 3 Howard, 151 ; Bank of Commerce r. Xew York, 2 Black, '620; Provident Inst. v. Mass., 6 Wallace, 611; The Banks v. The Mayor, 7 Id. 16 ; Bank v. Supervisors, Id. 26 ; Railroad Co. v. Peniston, 18 Id. 5 ; Carrol v. Perry, 4 McLean, 25; Stetson r. Bangor, 56 Maine, 274; 0])inion of Justices, 53 X. Hamp. 634; United States v. Weise, 5 Pa. L. J. E. 61 ; West. Un. Tel. Co. v. Richmond, 26 Grat. 1; State V. Garton, 32 Ind. 1; YII Opins. of Attys. Gen. 578; XI Y Id. 199. In the late case of Railroatl Company r. Peniston, 18 Wallace 30, it is specified by Strong J. that-^" the States may not lev^j^ taxes the direct effect of which shall be to hinder the exercise of any i^owers which belong to the Xational gov- ernment." 474 TAX. resideDce is acquired by an act of will. An officer or soldier on the active list cannot properly be taxed as a resident of a State or Territory on the sole ground that he is stationed at a post or place within such State or Territory. A member of the army is commorant at his military station not by his own volition but in x)ursuauce of the orders of a military superior. By farther orders, also, he is liable at any time to be removed to a different station and one in another State. His abiding at his station is therefore both involuntary and temi)orary, and it is in general much more reasonably presumabl3 that an officer's station is not his residence than that it is such. An officer or soldier is frequently not a resident or inhabitant of any State or Territory, but, wherever he may be stationed or on duty, a transeuns merely.' XXX, 215; XXXVII, 396; XXXIX, 5G3; XLI, 120. [See Residence.] See post TRADER ^ 6, 7, 8. UNITED STATES. ' That a person, however, shall be a resident or inhabitant, (terms having practically the same meaning in law,) of a State, is not essential to render him or his property taxable. The power of a State to tax, which is "one of its attributes of sovereignty," extends to all subjects — persons, property, or business ukthin its jurisdiction, and it may, as a general rule, legally tax personal property held or being within its limits, without regard to the domicil of the owner. See case of State Tax on Forei^rn Held Bonds, 15 Wallace, 319; Rail- road Co. V. Peniston, 18 Id. 29; Duer v. Small, 4 Blatch. 263; People V. jMcCreery, 34 Cal. 432; Hanson v. Vernon, 27 Iowa, 48 ; City of Philad. r. Tryon, 35 Pa. St. 404 ; XIV Opins. of Attys. Gen. 200. In the opinion last cited, the Attorney Gen- eral, upon the question of the authority of the State of Xew York to tax the property of soldiers held by them upon a part of the government lands at West Point as to which a cession of the State jurisdiction had not in fact then been obtained, held as follows: "If the personal property referred to is of a kind subject to taxation by the laws of the State, and its situs is within the territorial jurisdiction of the State, I do not think that the tact that the ONvner is an enlisted man in the service of the United States, and has done nothing to gain residence or citizenship in the State, is in itself sufficient to exempt the pro])erty from State taxation." And it is ad(k^d : " In regard to laiul owned by the United States witliin tlie limits of a State, over wiiic^h the State has not parted with its juris- diction, the United States stand in the rehition of a juoprietor ; and the local officers have, in my opinion, the same right to enter upon such land, or into the buildings located there, and TRADER — TREATY. 475 TRADER. See post TRADER. TRANSPORTATION OF PUBLIC FUNDS. Held that au officer of a regiment detailed with a guard to transport public funds, while bound of course to such reason- able care and vigilance as the strength of his command, the circumstances of the march, «&c., would enable him to exer- cise, did not incur the responsibility which would devolve upon a i3ay master, (or other bonded disbursing officer,) in charge of the same funds, and could not therefore be held liable for a loss resulting — without fault on his part— from an actus Dei or vis major. And his being required to give, and giving, a formal receipt for the funds, could not add to his legal liability for their safe transport. XXXVIII, 331. TREATY. See ALASKA $ 1. ARMY— EMPLOYME^^^T OF FOR CIVIL PURPOSES $ 6. EXTRADITION $ 1, 2. INDIAN COUNTRY $ 1. INDIAN WAR § 2. MILITARY RESERVATION $ 2, and note. seize the personal property of individuals for non-payment of taxes thereon, as they have to enter upon the land or into the buildings of any other proprietor for the same purpose ; it being understood that in the former case the right must be so exer- cised as not to interfere with the operations of the General Gov- ernment." And see XIV Opins. 27. Persons, however, residing within a reservation or \)\i\ce, exclusive jurisdiction over which has been ceded to or reserved by the United States, are not taxa- ble by the authorities of the State within the limits of which the post or place is situated. See Mitchell v. Tibbetts, 17 Pick, 298 ; Opinion of Justices, 1 Met. 580 ; Commonwealth V. Young, Bright, 302 •, VI Opins. of Attys. Gen. 577 — cited in note to Cession of Jurisdiction § 5. 476 UNAUTHORIZED PUBLICATION— USAGE. u. UNAUTHORIZED PUBLICATION. See sixty SECOND ARTICLE $ 5. STATEMENT $ 5. UNITED STATES. The United States, like any other corporation, is liable for taxes duly assessed by the municipal authorities on land owned by it within a State, (over which exclusive jurisdiction has not been ceded,) and, ex aequo et bono^ should not unrea- sonably delay to pay the same if correct and just in amount. Such taxes, however, cannot in general be settled by a head of a department in the absence of an appropriation made by Congress for the purj^ose. XLIV, 103. See quitclaim. UNLIQUIDATED DAMAGES. See claims ^ 6. USAGE. See custom OF THE SERVICE. VARIANCE — VIOLATION OF LAWS OF TVAE. 477 VARIANCE. A material variance between the name of the accused in the specification and in the sentence should, if possible, be corrected by a re-assembling of the court for a revision of its sentence. If this be rendered imi)racticable by the exigen- cies of the service, the sentence should in general be disap- proved as fatally defective. Thus held^ in a case where the names in the sentence and the specification were entirelj^ dif- ferent, the one being John Moore and the other James Cun- ningham, (XVII, GOl j) also in cases in which, while the sur- names were the same, the christian names were quite different, one being George and the other William, &c., (VIII, CGC ; IX, 27, 134;) also in a case where the name in the sentence, though similar to that in the specification was not idem sonans, as where the accused was arraigned upon charges in which he was designated as Woodworth, but was sentenced under the name of Woodman. II, 555. A difference, how- ever, in a middle initial is not a material variance, a middle name not being an essential i)art of the christian name in law.i XIII, 481. VIOLATION OF THE LAWS OF WAR. See LAW OF WAR $ 2—8. MILITARY COMMISSION, II $ 1, 2, 3. PRISONER OF WAR $ 3. SPY^ 1,5. ^ That the law " recognizes but one christian name," and that the insertion or omission of a middle initial or initials " will have no effect in rendering any i^roceediug defective in point of law"— see II Opins. of Attys. Gen. 332; III Id. 467; also Franklin r. Tallmadge, 5 Johns. 84 ; Eoosevelt i'. Gardi- nier, 2 Cow. 4G3 ; State v. Webster, 30 Ark. 168. 478 VOLUNTEERS. VOLUNTEERS. 1. The volunteer force during the late war was not a part of the Militia, but of the Army of the United States. Though assimilated to the militia in some respects, as, for example, in the mode of original appointment of regimental and company ofiicers, it was as distinct in laiv from the Militia, as was the so- called " regular " contingent of the Army. ^ Volunteer offi- cers, once mustered into the service of the United States, and while they remained in that service, did not differ sub- stantially from regular officers in their status, rights, or other- wise. Their tenure of office was indeed briefer : this, how- ever, was not a material legal distinction, since the term of regular officers was also in some cases limited by statute to a definite period — as the duration of the existing war. XXXIY, 459. [See Eegular Army.] 2. In a case of a volunteer officer, unjustly dismissed, by sentence or order, during the war, and apx)lying for restora- tion, there is the obstacle, (not encountered in a case of a regular officer,) that the volunteer contingent of the army has been long since disbanded, so that a restoration to office in the same is impracticable. And as a dismissed officer cannot of course be granted an honorable discharge from the army, without first being readmitted to the army by a new appoint- ment, and a volunteer officer cannot as such be so readmitted, advised, (February, 1880,) in a case of a volunteer officer ap- plying for relief, on account of an unjust dismissal, that the form of relief most apposite to his case, would be a special enactment giving him pay from the date of his dismissal, — reciting that the same was based upon insufficient grounds, — to the date of the final muster-out of his regiment, precisely ^ As illustrating the distinction made in Sec. 8, Art. I, of the Constitution, between the Army and Militia, and indicating the status of the Volunteers, during the late war, as a part of the former — see Kerr v. Jones, 11) Ind. 351 ; Wantlan v. White, Id. 471 ', In the matter of Kimball, 1) Law Itep. 503 j Bur- roughs V. Peyton, IG Grat. 483, 485. VOTE OF THE COURT. 479 as if be had continued regularly in the service during the in- terval. XLIII, 235. 3. Officers of volunteers, or officers holding office in the army of a limited tenure, who, without change of rank, were incorporated mto the military establishment at the end of the war, by the Act of July 28, 18GG, or other statute, became as permanently and comi)letely officers of the regular army as if they had been originally appointed in the same; ^ and brevet commissions held by such officers prior to such incorporation remained thereafter as valid and effectual as did the original commissions to which such brevet commissions were inci- dental, and fully conferred in the regular army the brevet rank specified in the same. XXX, 1. See twenty SECOND ARTICLE $ 3. SIXTIETH ARTICLE $ 17. SEVENTY SEVENTH ARTICLE $ 1. DISMISSAL, II ^ 4. EXTRA PAY. RANK ^ 2, 3. REMOVAL OF DISABILITY. VOTE OF THE COURT. A tie vote upon any proposition submitted to the court is equivalent to a vote in the negative, — a majority vote being necessary to a determination in the affirmative, — and the proposition is not approved. Where the vote is a tie upon an objection to testimony, the objection is not sustained. Where it is tied upon a certain proposed finding or form of sentence, the same is not adopted. XXXI, 511, 610 j XXXII, 126. [See Finding § 13.] See eighty FOURTH ARTICLE ^ 4, 6. PRESIDING OFFICER OF THE COURT § 3, 5. PROTEST. SENTENCE AND PUNISHMENT $ 1, 2. ^ See the confirmatory opinion of Atty. Gen. Hoar, (as to the status of the Judge Advocates of the Army,) in XIII Opinions, 96-99. 480 WAR — WAR POWER. w. WAR. Held^ (October, 1865,) in a case in wliicli a State Judge liad discharged a soldier enlisted for the war, on the ground that the war had ended, that the Judiciary, even of the United States, would not be empowered to determine, originally, the question whether the war had terminated, but ui)on such question would x)roperly await and abide by the action of the President or Congress.^ XYIII, 293. WAR POWER. The war i)ower of the United States is vested in Congress by Art. I, Sec. 8, pars. 11, 12, 13, 14, 15 and IG, of the Con- stitution. The President, as Executive and Commauder-in- ^It has subsequently been similarly held in repeated cases. See Pliillips v. Hatch, 1 Dillon, 571 ; Semmes v. City Fire Ins. Co. 3G Conn. 513 ; Conley v. Supervisors, 2 West Va. 41G; Perkins v. Eogers, 35 Ind. 124; Sutton v. Tiller, G Cold. 595 ; also United States v. Anderson, 9 Wallace, 71. In the case of The Protector, 12 Wallace, 700, it was held by the Supreme Court that the war began in all the insurrec- tionary States, except Virginia and Xorth Carolina, on Ai)ril 19, 18G1, the date of the first "proclamation of intended blockade," and in those two excepted States on April 27th, 18G1, the date of the second such proclamation; further that the war ended., in all the States except Texas on April 2d, 18GG, the date of the proclamation declaring the war at an end as to all the other States, and in Texas on August 20th, l^GG, the date of the proclamation declaring the war at an end in that State and generally. And see Adger v. Alston, 15 Wallace, 555, and Burke v. Miltenberger, 19 Id. 519, in which the ruling in The Protector is atiirmed by the same court J also United States v. Anderson, 9 Id. b(j. WITNESS. 481 chief of tlie Army and Xavy, becomes authorized, in time of war, to execute this power under the public Acts of Congress initiating and defining the same. An official of a State can no more lawfully exercise any i)art of such function than can an individual citizen.^ Thus, where, during the late war, the Governor of a State of his own authority caused to be arrested and confined at. hard labor in a chain-gang certain inhabitants of the State suspected of sympathizing with and giving aid to the public enemy, — announcing that they would be so con- fined until certain civilians and military officers, who were residents of such State and had been seized by the enemy, should be released; held, (June, 18(33,) that such proceeding was a transcending of the police power of the State and an assumption of an exercise of the tear power belonging exclu- sively to the government of the United States, and was there- fore unauthorized and illegal. II, 511. And similarly held, (September, 1863,) that the seizing and holding, hj a Gov- ernor of a State, of certain persons as '^ hostages," in rei)risal for citizens of that State captured by the enemy, was an exercise of the war-making power belonging to the general government and could not be recognized as legal by the Sec- retary of War. Ill, 558. WITNESS. 1. The rules governing the competency of witnesses before the criminal courts of the United States and the States are, where apposite, generally, (though not necessarily,) followed in the j)ractice of courts martial. XLII, 71. [Compare Evi- dence § 1.] 2. It was heretofore an established rule that accused i^arties could not legally testify as witnesses before military courts.^ XXIX, 480, 565; XXXYII, 624. But, now, by the Act of ^ While '> war can alone be entered into by national author- ity," so — "no hostilities of any kind, (except in necessary self-defence,) can lawfully be practised by one individual of a nation against an individual of any other nation at enmity with it, but in virtue of some public authority." Talbot v. Janson, 3 Dallas, 160. ^ See G. 0. M. 0. 3, Hdqrs. of Army, 1870, in which is incorpo- rated an opinion of the Judge Advocate General on this subject. 31 D 482 WITNESS. Marcli 16, 1878, c. 37, it is expressly provided tliat at trials, not only before the courts of the United States, but be- fore courts martial and courts of inquiry, ^' the person charged shall, at his own request, but not otherwise, be a competent witness." It is added: "And his failure to make such r*iuest shall not create any i:>resumj)tion against him." But parties testifying under this Act have no exceptional status or iirivileges ; they must take the stand and be subject to cross examination like other witnesses. The submission by the accused of a sworn written statement is not a legiti- mate exercise of the authority to testify conferred by the statute, and such a statement should not be admitted in evi- dence by the court.^ XXXIX, 506. 3. It has been uniformly held that the wife of a person on trial before a court martial could not properly be admitted as a witness for or against him f and the statute authorizing accused parties to testify does not affect this rule. XXX, 672. The wife, however, of an officer or soldier may be admitted to testify in his case before a court of inquiry, the proceeding before such a body not being a trial but an investigation merely. XXXII, 2. [See One hundred and fifteenth Article § 1, note.] Where a court martial refused to admit in evidence, (as being incomj)etent,) the testimony of the wife of the prosecuting witness, held that its action was entirely erroneous, no legal objection existing to the competency of such a person. XLIII, 106. 4. Sec. 858, Eev. Sts., declares that: "In the Courts of the United States, no witness shall be excluded in any action on account of color." Seld that under this statute, (as well as under Sec. 1977,) Indians were competent to testify before courts martial, i)rovided they sufficiently comi)reheuded the obligation of an oath.^ XXXI, 185. [See Xinety Second Article § 1.] 5. The j)resident or any member of a court martial, as also ^See the General Orders cited in the note to Evidence § 14. 2 Xor will the testimony of the wife of an accused be admis- sible in favor of or against a party jointly charged with him, where her testimony will be material to the merits of the question of the guilt or innocence of her husband. See Ter- ritory V. Paul, 2 Montana, 314. ^See G. G. M. O. 54, Div. of Pacific & Dept. of Cal. 1879. WITNESS. 483 the judge advocate, may legally give testimony before the court. That the court, at the time of a member's testif:sing, is composed of but five members will not afiect the validity of the proceedings, since in so testifying he does not cease to be a member. It is in general, however, most undesirable that the judge advocate, and still more that a member, should ap- pear in the capacity of a witness, except perhaps where the evidence to be given relates simply to the good character or record of the accused. II, 584; VII, 202; XI, 299; XLII, 472. [See Member of Court § 5.] 6. It is no objection to the competency of a witness, that he is the officer upon whom will devolve the duty of review- ing authority when the proceedings are terminated. XXXIX, 518. 7. It is no objection to the competencj' of a witness that his name is not on the list of witnesses appended to the charges when served. The prosecution is not obliged to fur- nish any list of witnesses, nor, where one is furnished, to confine itself to the witnesses thus specified. [See Charge § 29.] The fact that material testimony is given by an unex- pected witness may indeed constitute ground for an applica- tion by the accused, (under Art. 93,) for further time for the preparation of his defence. XXV, 350. 8. A person who is insane at the time is incompetent as a witness. An objection, however, to a witness on account of alleged insanity will not properly be allowed, unless sustained by clear proof, a man being always presumed to be sane till proved to be otherwise. XXXIII, 91. [See Insanity § 2.] 9. Except where their testimony will be merely cumulative, and will clearly add nothing whatever to the strength of the defence, (see Ninety Third Article § 1,) the accused is in general entitled to have any and all material witnesses sum- moned to testify in his behalf.^ A prompt obedience to a summons is incumbent upon all witnesses, nor is a command- ing or superior ofiBcer in general authorized to place any obstacles in the way of the prompt attendance, as a witness, of an inferior duly summoned or ordered to attend as such.^ XXXIII, 100 ; XLIII, 341. Where the judge advocate has ' See G. C. M. O. 21. 24, War Dept. 1872 : do. 128, Hdqrs. of Army, 1876. 2 See G. C. M. 0. 18, Dept. of the Platte, 1877. 484 WITNESS. declined to summou a witness for tlie accused, for the reason that lie is not " satisfied," (in the words of par. 890, of the Army Eegulations,) " that his testimony is material and nec- essary to the ends of justice," the cotirt may, in its discretion, direct him to be summoned. The court, however, will not in general properly sanction the summoning of a witness, where it is not probable that his attendance can be secured within a reasonable time and his deposition can legally be taken pur- suant to the 91st Article of War. YII, 184, 201. 10. In military law an accused party cannot be deemed to be entitled to have a witness summoned from a distance whose military or administrative duties are of such a char- acter that they cannot be left without serious prejudice to the public interests. Art. YI of the Amendments to the Consti- tution declaring that the accused shall be entitled '' to be con- fronted with the witnesses against him," api)lies only to cases before the United States Courts. [See Sentence and Pun- ishment § 7, note.] Thus where the offence charged is not capital, and a deposition may therefore legally be taken under the 91st Article of War, the Secretary of War will not in general authorize the personal attendance at the i^lace of trial of a witness whose office or duty makes it necessary or most important that he should remain elsewhere. [See KiNETY First Article § 3.] XIX, 35 j XXXYIII, 141. 11. An accused i)arty at a military trial can rarely be en- titled to demand the attendance, as a witness, of a chief of a staff corps, much less that of the President or Secretary of War, — especially as some minor official can almost invariably furnish the desired facts. If, however, the testimony of one of these officials be found to be necessary or most desirable, and the same cannot legally be taken by deposition, the coiu?t, if convened at a distance, may properly be adjourned to Washington or other convenient i^oint, in order that the wit- ness may be enabled to attend without detriment to the public interests. XXXIX, 517. [See Ninety First Arti- cle § 3.1 12. At whatever place a court martial may be assembled, a summons, for the attendance before it as a witness, may legally be issued to and served upon a person civil or mili- tary, in any other jyavt of the federal domain j the field for the service of such a summons being conterminous with that WITNESS. 485 of the jurisdiction of the court, which is limited only by the boundaries of the United States. XI, 234. [See Court Mar- tial, II § 2.J 13. A summons may legally be served either by a military or a civil person/ but will in general x^referably be served by an officer or non-commissioned officer of the army. A judge advocate, or a commanding or other officer to whom a sum- mons is sent for service, will not be authorized, hy emi)loying for the purjiose a U. S. marshal or deputy marshal, or other civil official, to commit the United States to the i)ayment of fees to such official. XLIII, 284. The action, however, of a judge advocate in employing a deputy marshal to serve a summons, where apparently the service could not otherwise be so effectually or economically made, has in a few cases been so far ratified by the Secretary of War as to allow, out of the appropriation for army contingencies, the payment of a small and reasonable account of charges rendered by such official. XXX, 536; XXXYII, 570. 14. A witness who has given his testimony should in gen- eral be aUowed to modify the same where he desires to do so in a material particular. But where the court has refused to permit a witness to correct his statement as recorded, such refusal need not induce a disapproval of the proceedings un- less it appear that the rights of the accused have thus been prejudiced. YII, 447. 15. Witnesses should not in general be admitted to the court room, but shoidd be kept as far as practicable apart, until required to appear and give their testimony. But that a witness or witnesses may have been permitted to remain in the court room and hear the testimony of witnesses previ- ously called, cannot affect the legality of the proceedings. XXXI, 34. 16. A witness can have no authority to discharge or relieve himself from attendance on the ground that the testimony desired of him is immaterial, or for any other reason. In the civil practice such an act would be a grave contempt of court. It is for the court to judge as to the materiality or pertinency of the evidence of witnesses, and unless a witness has been determined by the court to be incompetent or his testimony to be inadmissible, he should remain and stand his examina- ""^ee G. O. 93, Hdqrs. of Army, 1868. 480 WITNESS. tion till duly informed by the court or judge advocate that his attendance is no longer required in the case. XXXIX, 354. 17. The privilegCj recognized by the common law, of a wit- ness to refuse to respond to a question the answer to which may criminate him, is a personal one, which the witness may exercise or waive as he may see fit.^ It is not for the judge advocate or accused to object to the question or to check the witness, or the court to exclude the question or direct the witness not to answer. Where however he is ignorant of his right, the court may properly advise him of the same. XI, 200. But where a witness declines to answer a question on the ground that it is of such a character that the answer thereto may criminate him, but the court decides that the question is not one of this nature and that it must be answered, the accused cannot i)roperly further refuse to respond, and, if he does so, will render himself liable to charges and trial under Art. G^.^ XXXIY, 242. 18. The fees, {per diem allowance of $3 and expenses of transportation,) payable to civilians summoned to attend courts martial as witnesses, are fixed by par. 1139 of the Army Eegulations, as amended by G. O. 278, War Dept., 1864,^ and are paid out of an item of the appropriation for the pay department, for the "compensation of citizen wit- nesses attending upon courts martial, military commissions and courts of inquiry." The existing law does not authorize the tender or payment of witness fees in advance nor the fur- nishing of public transportation to civilians, (not employees ^ It has however been held by a U. S. Circuit court that since the date of the Act of Feb. 25, 18G8, sec. 1, (contained in Sec. 860, Eev. Sts.,) a witness was no longer privileged to decline to give criminating testimony. Thus the court say: "As the law stood before the i)assage of this Act a witness could decline to answer a question when the answer would tend to criminate himself. But now he may be compelled to answer, when inquiry is pertinent to any judicial i)roceeding, because it may be necessary to the ends of justice as to others, and cannot be used against himself." United States v. Brown, 1 Sawyer, 536. ^ See G. 0. M. O. 23, War Dept., 1873. ^ And see further — as to the compensation as witnesses of civilians in the U. S. service — G. 0. 1)7, Hdqrs of Army, 1876 j do. 25 Id. 1879. WITNESS. 487 of the IJiiitecl States,) wlien summoned as witnesses before courts martial. Military witnesses are of course entitled to no compensation for attendance before military courts.^ XXXVII, 315. 19. The fact that a civilian, who has attended as a witness before a court martial is an emi)loyee of the United States, does not aflect his right to the per diem allowance, or to be reimbursed his legal travelling expenses, provided i)ublic transx)ortation is not furnished him. Y, 475. Laundresses duly attending and testifying before courts martial are enti- tled to the fees of civilian witnesses. XXVII, 229. [See Acting- Assistant or Contract Surgeon.] 20. There is no statute or regulation, which makes provis- ion for the payment of any fees to civilians who merely give their depositions without attending the court. XXXIV, 261. 21. A civilian witness, upon his discharge, is entitled to receive from the judge advocate a certificate setting forth the fact of his having been summoned as a witness in the case and the number of the days of his attendance in that capacity before the court. I, 448; V, 475; VIII, 88; XXV, 503. The certificate of the judge advocate is the proper official evidence as to the fact of attendance, and is in general accepted, in the absence of any indication to the contrary, as conclusive ui)on the subject. XXXV, 483. The record of trial will often be unsatisfactory evidence on this point, since a witness duly summoned and attending, may in fact not be called upon to take the stand ; or a witness may appear from the record to have testified on a certain day or days, while he may in fVict have been in attendance a much longer time. XXVIII, 115. 22. To entitle a witness to the payment of fees, it is not absolutely essential that he should produce a formal sum- mons or subpoena addressed to and comi)lied with by him, or ^ For their attendance as witnesses, for the United States, before any court of the United States, they — officers and sol- diers alike; Sec. 850, Eev. Sts., being construed as applying to all military emi^loyees — are entitled to their necessary ex- l^enses, in going, returning, and while in attendance, to be stated in items and sworn to; the same being generally to be l)aid them by the Marshal. But being in the pubhc service they are not entitled to receive any witness fees or mileage. OX)iuions of the Attorney' General of August 2 and Sei)tem- ber 27, 1878, (XVI Opins. .) 488 WITNESS. that li<3 sliould liave been formally summoned in the case. It will in general be sufficient if be has duly attended in com- pliance with a verbal or informal written request from the judge advocate, or even at the instance of the accused, if this action has been acquiesced in by the judge advocate. A strict observance, however, of par. 890 of the Army Eegula- tions would call for the issue of formal summonses to the wit- nesses on both sides, and it is the best practice for the judge advocate to cause such to be served in each instance. A party cannot entitle himself to witness fees by merely appear- ing in court on his own responsibility and not at the instance of either party. XXIII, 196. 23. Held that it could not affect the right of a civilian wit- ness to his compensation as such that, when on the stand, he refused to testify in answer to proper questions, or that In answering material questions he testified falsely. Such a witness is paid for his attendance^ and the fact that, after he has duly attended, he has committed a contemi)t or has been guilty of perjury, cannot impair a right not made, by law or regulation, conditional upon his good conduct under examina- tion or his veracity. XLIII, 299. 24. The certificate of the judge advocate cannot properly include, in the period during which the i^arty is stated to have attended as a witness, any time anterior to the date of his actual attendance in comx^liance with the summons. Where indeed a witness is held or detained for any period prior to the trial, or subsequently to the same or to his being discharged as a witness, (as liarties were in some instances detained, in military custody during the late war,) he may perhaijs have an equitable claim for comj)ensation from the approx)riation for army contingencies, or for relief from Con- gress. II, 885 V, 100 J XVI, 518; XVIII, 590; XIX, 697. 25. Where a i^arty who had attended as a witness before a military court, claimed, in addition to the regular compensa- tion of $3 ]f)er diem, to be indemnified for the loss of time and injury to his business alleged to have been occasioned by rea- son of his being obliged to attend as such witness ; held, that such claim could not be allowed by the executive branch of the government; the loss and injury couqdained of being disadvantages to which citizens were liable to be subjected in the course of the discharge of their obligations to civil WITNESS. 489 society, and for which the law has provided no remedy. XXII, 264. 26. In view of the provision of Sec, 1248, Eev. Sts. invest- ing retiring boards with siich powers of courts martial as may be necessary to enable them to inquire into and determine the facts touching the disability of officers whose cases are referred to them, held that a retiring board might legally cause material witnesses to be summoned to attend its ses- sions, and that witnesses so summoned would properly be entitled to the fees of witnesses before courts martial. XXVIII, 427. 27. Held that i^arties who appeared and testified before, and at the instance of, an officer charged with the i:>relimi- nary investigation of a case, but were not required to attend at the subsequent trial, were not legally entitled to witness fees. XXI, 463. 28. The authority to issue process to comi^el civilian wit- nesses to apx)ear and testifj', is vested, by Sec. 1202, Eev. Sts., in "every judge advocate of a court martial.'' A judge advocate of an inferior court, (see Judge Advocate § 1,) would thus be emijowered for the puri)ose equally with the judge advocate of a general court. The i^resent statute, how- ever, (unlike the original form,) does not extend the authority to recorders of courts of inquiry. Further, the authority being vested exclusively and independently in the judge advocate, cannot be exercised by the court. The attachment is thus not a writ or process of the court, but simply a compulsory instru- mentality placed at the disposition of the judge advocate as the i)rosecuting official representing the United States. XXXI, 12; XXXIV, 178; XXXVII, 283, 316; XLI, 464. 29. To authorize a resort to an attachment, there must have been a formal summons, duly issued and served upon the wit- ness, and not comi)lied with. XXXVI, 152. 30. Held that the statute could not i)roi)erly be construed as authorizing the issue of an attachment to compel a witness to attend before a commissioner or other i)erson and give his deposition. XXXVI, 152. 31. The form of the process should be "like" that em- ployed in the procedure of the criminal courts, or a criminal court, of the "State, Territory, or District," (of Columbia,) in which the court martial is ordered to sit. XXVIII, 153. 490 WITNESS. Where there is no special form for the attachment of witnesses in criminal cases in use in the State, the statute will be suffi- ciently complied with if the general form for the attachment of a witness for a contempt for not obeying a summons be substantially followed. XXXVI, 152. 32. The authority to issue the comi^ulsory process is coex- tensive with the authority to issue a summons. [See § 12 supra.] The judge advocate of a court martial in session in any part of the United States may issue an attachment to comi)el the attendance before it of a witness resident or being in any other part.^ XXXYIII, 591. 33. A judge advocate cannot properly direct an attach- ment to a U. S. Marshal or deputy marshal or other civil official. [See § 13, sujyra.] Some military officer or person should be designated by him, or detailed for the puri^ose by superior authority.^ XXVII, 147. In executing the attach- ^ See, contra, Eeport of Hon. J. Proctor Knott, Chairman of Committee on the Judiciary, Ho. of Eeps., 4G Cong., 1st Sess., dated April 22, 1879. But the practice has been in accord- ance with the ruling stated in the text ; and it was certainly, never contemplated by Judge Advocate General Holt, who originally framed the provision, (in the words in which it was enacted,) that the field for the service of an attachment was to be any more restricted than that for the service of a sum- mons. See § 12 supra. ^Upon the subject of the execution of process of attachment in military cases, see the opinion of the Atty. Gen. in XII Opins. 501 5 also the directions — based upon the same — of G. O. 93, Hdqrs. of Army, 18G8. Prior to the adoption of the Constitution, Congress, (then the Government,) appears to have relied ui)on the State au- thorities for the necessary i)rocess to compel the attendance of Avitnesses before military courts. See Kesolution of Xov. IG, 1779 — III Journals of Congress, 392. In the British law, b}^ a provision first incorporated in the Mutiny Act in the year 1800, witnesses neglecting to comi)ly with a summons requiring their presence at such courts, are made ''liable to be attached in the Court of Queen's Bench," &c. This pro- vision well illustrates the close connection between the execu- tive and the other governmental powers in the British Con- stitution, where the Sovereign is a part of the Judiciary as well as of the Legislature. The fact of the ex])ress distinction and separation of the three powers in our own organic law, one result of which has been to leave courts uiartial, as agen- cies of the executive power, quite iiulependent of any review or control on the part of the U. S. Courts, (see Couirr Mar- WITNESS. 491 meut, tlie needful force may be employed, but uo more. XI, 234. 34. Tbe authority of a court martial to punish as for a con- tempt, being confined by the code, (Art. 8G,) to cases of acts of menace or disorder committed in its presence, such a court would not be empowered to i>unish, as being in contempt, a witness appearing before it whose attendance it had been necessary to compel by process of attachment. IX, 208, 278 j XXI, 215 J XXVIII, 214. See sixty SECOND ARTICLE § 6. EIGHTY SIXTH ARTICLE § 1, 2. NINETY FIRST ARTICLE ^ 1, 6, 7. ACCOMPLICE. ADJOURNMENT $ 5. ARREST, I § 9. BOARD OF SURVEY $ 2. COURT MARTIAL, I ^ 5, 8. EVIDENCE $ 3. INSANITY ^ 2. JUDGE ADVOCATE § 19. PROSECUTOR. TjAL, I § 1,) has also no doubt availed to preclude the devolv- ing upon the federal tribunals of a power, fitly conferred in the foreign statute, but which, with us, would be anomalous, exceptional and out of harmony with our constitutional sys- tem. It may be added, in regard to the exercise of the authority to issue compulsory process, as vested in judge advocates by the Act of 18G3, (Sec. 1202, Eev. Sts.,) that the occasions of such exercise have been unfrequent in iDractice, and no case is known in which such authority has been materially abused. INDEX. A. Page. ABSENCE WITH EEAVE. As affecting amenability to military jurisdiction. .10, 215-216 " '' procedure under Art. 59 31, note. « '^ authority of commander to order court martial 54 « " " to act on proceedings of court martial 89 ABSENCE ^VITHOUT EEAVE. As affecting operation of statute of limitations 86-87 In what acts it may consist 101 Waiver of charge of, by putting on duty 101 As distinguished from desertion 220-221 Finding of under charge of desertion 264 Forfeiture of pay on account of . . 225, 364-365 ACCEPTANCE OF APPOINTMENT. As giving effect to ai)pointment 106 " initiating right to receive pay 106, 362 ACCEPTANCE OF RESIGNATION. How and when it takes effect 430 Effect of notice of to officer 430 As affecting authority to withdraw resignation 430-431 ACCOMPLICE. Status of if admitted to testify 101 Testimony of to be received with caution 257 ACCUSED AS A WITNESS. When competent under Act of March 16, 1878 258^ 482 Mode of examination of 258^ 482 493 494 INDEX. ACTING ASSISTANT COMMISSARY. Page. Legal significance of tlie title 368 Detail and pay of captain as 368 ACTING ASSISTANT SURGEON. Amenability as a civilian to military jurisdiction 48, 102 Xot eligible as a member of a court martial. 59, 102 Cannot represent a ^' corps " in sense of Art. 82 65 " be subject of a court of inquiry 97 Status of under bis contract 102 How far subject to military orders 102 Eight of to fees as witness before court martial 102 ACTION ON PROCEEDINGS. By ^' the ofticer ordering the court," &c. (Art. 104.). . 89-91 '' " President 389-390 u u reviewing authority, generally 434-439 Statement of in record 418 ADDING TO PUNISHMENT. Principle that punishment in sentence cannot be in- creased , m, 437, 451 Application of to sentences of imprisonment 286, 287 " '^ " " "reprimand 428 " " " " '^ suspension 469 ADDITIONAL AID-DE-CAMP. Status of, as officer of regular army 104 ADDITIONAL CHARGE. Effect of introduction of after court sworn Q^ Introduction of after arraignment 148 ADJOURNMENT. From day to day, authentication of 103 Statement of in record 103 Adjournment sine diej effect of 103 " to quarters of sick witness 103 Authority of president to adjourn court 392 ADMINISTRATION. Of effects of deceased officer or soldier 100 INDEX. 495 ADVERTISEJWKNT. Page. Eequirement as to in Sec. 3700, R. S 181 Puri)ose of, as a protection to United States 182 Effect of, as a pledge to the iiublic , 182 Contract not to depart from 183, 184 Authority to dispense with 185-187 ADVIfSINO TO DESERT. Nature of the offence. (Art. 51.) 24 AFFIDAVIT. Use of by board of survey 125 Admissibility of in evidence 256 AID-DE-CAinP. Of General and Lieut. General, status of 103-104 Effect of rank of on courts martial 104 '^Additional," status of 104 Aids of ofiBcer assigned to command as brevet general. 134-135 AEASKA. Citizenship of inhabitants of 104 Military government in 104-105 Arrest for introduction of liquor in as Indian country . 105, note AECATBAZ ISLAND. Status of discharged soldier confined at 213 Authority of post commander 381-382 ALIEN. Eight of to acquire citizenship by military service .... 105 '' " " '' " " service in navy 105 Desertion by — extenuation of 224 ALLOIVANCES. As distinguished from pay 135, 3G2 Clothing allowance 172-173 Allowance for quarters 309, 367, note, 370, 371 " ''fuel 367, note, 370, 371 Forfeiture of allowances 172-173, 271, 362 AITIENDMENT OF €HAR€^E. Authority of court to cause to be made 155 " " judge advocate to make 155, 298 496 INDEX. AMEWBMENTS TO COWSTITUTIOW. Page. Effect of 1st. on form of oath of witness 75 Case of civilian as case "arising in land forces" in sense of Yth 49, 213, note. Meaning of phrase " put in jeopardy " in Yth 83 Application of rule of compensation in Vth. to cap- tured property 140 Authoiity of executive officer to award compensation under Yth 168 Eight of recovery of compensation under Yth for prop- erty seized in war 168-169 Eight of public em^^loyee to comijensation under Yth . 179 Trial of civilian by court martial as precluded by YIth . 211 General application of Yth, YIth, and Ylllth 448, note. APPEAI.. Significance of the term in military law 105 APFOI]\TME«fT. Effect of accei)tance of 106 Date from which takes effect 106 Commencement of right to pay under 106 Date of as fixing relative rank 106 Original order of appointment as fixing same 106 By President, of " inferior officers" , 106-107 Of second lieutenants under Act of June 18, 1878 .... 107 Prohibition of, by Act of 1878 107-108 Of assistant surgeons to rank of captain 108 " captain of infantry as asst. quartermaster = . . 108 " civilians in general to army office ... 108-109 " " under special authority of Congress . 109, 461-464 By President, with a view to retirement 109 With back rank 109 " " pay 109 When appointing power exhausted in a case 109 Authority to re-make appointment as of earlier date. . 109 Appointment of regimental staff officers 110 " " non-commissioned officers - 110-1 11 " " cadets 136-138 INDEX. 497 APPROFRIATIOIV. Page. Of public funds cauuot be made by executive official . . 1G5 " " " as affecting authority to make con- tracts 186-189 Permanent appropriation 189 Cannot be diverted from purpose expressed in Act 370 As conveying implied authority to acquire land, &C.405, note. APPROVAL OF PROCEEDDIVGS. Under Art. 104 80-91 " " 106 91 " " 111 92 Effect of, generally, on sentence 273, 435 By the President, as reviewing authority 389-390 " reviewing officer, generally , . . 435 ARMS— BSSUE OF. For use of States or Territories. 131 " " " Colleges 174 Eeturns, to account for 174, 355 ARMS— SALE OF. Authority for making in general 404, note. By soldiers prohibited 443 Under Sec. 1241, Eev. Sts 443 ARMY— EMPEOYMEIVT OF FOR CBVFL PURPOSES. Under Art. lY, Sec. 4, of Constitution 111-112 On posse comitatiis 112, 380-381 As affected by Act of June 18, 1878 112, 380-381 Under Sec. 5298 E. S 113 " Sees. 2150 & 2152, E. S. 113-114 In removing intruders from Indian reservation 114 " " trespassers from military reservation 114 Proper attitude of military till actually employed 114 Authority to detail officer for instruction of Indian youth 115 Employment of engineer officer on civil work 158 " ^" officer of army as Indian agent 115, 159 '^ " " ^' '' in taking census 115 " *' colored troops hj railroad company . .175-176 32 D 498 INDEX. ARMT REGULATIONS. Page. Distinguished from statutes 116 Authority of President to make 116, note. Eegulations cannot legislate j 117 Or contravene statute ; 117 " trench upon the province of statute 117 Sanction of existing regulations 117-118 The law in regard to naval regulations 117 Authority to modify existing regulations 117 Codification under Act of 1879 118 Breach of regulations how punishable 118 ARRADGIVMENT. Introduction of new charge after 68 Statement of in record 417 ARREST, (iniBfltary.) Breach of by officer. (Art. 65.) 50-51 Degree of restraint of soldier held in 51 Unreasonable detention in. (Art. 70.) 52 Eelease of officer from. (Art. 71.) 52-53 Limitation of time for. (Art. 103.) 88 By military, of civilians 113, 114 Form of in case of officer 119 Not essential preliminary to trial 119 Officer cannot demand 119 By whom may be imposed 119 Authority of court to order 201 Close arrest of officer 50-51, 119, 120 Limits generally assigned 119 Termination of arrest by putting on duty 51, 120 Protracted arrest ground for mitigation of sentence . . 120 Arrest of member of court martial 120 " does not affect right to prefer charges nor right to pay 120, 154 " of witness attending court martial 120 Soldier in arrest not in general to be ironed 121 Status of arrest not involved in suspension 469 ARREST. (By civil authorities.) Application for to military authorities. (Art. 59.) 29-31 Period of, not required to be made good to service .... 121 INDEX. 499 Page. ARREST— Contiamed. Status of soldier released on bail from 31, 121 Does not affect right to pay 121 Disposition of soldier in arrest for crime 121, note. Exemption from arrest for debt 122 ARTICIiES OF ll^AR. General rule of construction of 458 ARTIFICIAL EIMBS. Honorable discharge not necessary to entitle to 122 Eight to not affected by a desertion 122 Certain employees at arsenals held entitled to 122 ASSIONMENT OF CEAIM. Under Sec. 3477, E. S , ... 166 ASSIGNMENT OF CONTRACT. As prohibited by Sec. 3737, E. S 190 Effect in general in nulhfying contract 190, note. Authority to waive objection and recognize as valid. 190, note. " of inferior officer to consent to 190, 191 Power of attorney, when operates as 191 ASSIGNMENT OF SOLDIER'S FAY. Invalid, by Sec. 1291, E. S 3G9 Order for i)ay not an assignment 369-370 ASSISTANT QUARTERMASTER. Captain of infantrj^ eligible to appointment as 108 ASSISTANT SURGEON. Promotion by operation of law 108, 122 Eelative rank of under Act of July 28, 1866 123 ATTACHMENT. (Of property.) Of pay of officer or soldier 160-161 " property of officer, &c., required in the service 161 " necessary baggage of officer , 161 ATTACHMENT. (Of witness.) See Witness . '. . . , 489-491 500 INDEX. AUTHENTICATSOJV. Page. By Secretary of War of approval of sentence by Presi- dent 91 " judge advocate of proceedings of court 301 Of proceedings and sentence, form of in record 418 "AUTHORIZED." Construction of, in statute 459 A^^AITIMG ORDERS. Pay of officer in status of 367 B. BAIL. Soldier released on to be caused to appear for trial 31 " " '' may be returned to duty 121 Unknown to military law and practice 124 BALE AMD CHAIN. As a punishment in the army 449 BAND. Eefusal by member of to play, where not an offence. . . 10 BIDDER. Bondof, under Act of April 10, 1878 130 When entitled to award of contract 182-183, 184 Bid of, subject to be rejected for fraud 183 Procedure where bid rejected , 183 Authority of to withdraw bid 183 Effect of acceptance of bid by 183 BOARD OF INVESTIGATION. Authority and scope of 124 Distinguished from a court 124 Members may make separate reports 125 BOARD OF SURVEY. Not a court 125 Its opinion not a criminal finding 125 INDEX. 501 BOAHI> OF SURVEY— Contmiied. Page. Cannot be sworn, or administer an oath 125 May receive affidavits 125 Not to decide on statement of interested party alone. 125 Proceedings not effectual till approved. 126 Authority of as affected by provision of Art. 17 6, 126 " " " " " previous action of court of inquiry 126 BOND. (Of disbursing: ©Mcer.) To be executed by all the parties 126 " ^' formally sealed 127 Surety to be bound for whole amount 127 ^' cannot qualify obligation 127 Officers of the army as sureties 127-128 Married women and females as sureties 128 Extension of bond 128 Eevival of expired bond 128 Eelease of sureties by Secretary of War 128 Sureties not discharged hj delay to sue 128 Authority of Secretary of War as to acceptance of security 128 Sureties to justify severally 128 Form of justification . . , 128 Modification of same 129 Stamp not required for bond or justification 129 (Of contractor.) Eequirement as to seals 129 Members of family as sureties - 129 Bond of contractor for '^ personal services " 129 Non-liability on, after settlement 196 (Of bidder.) Under Act of April 10, 1878— ObHgation of 130 (Of College, &c., for arms.) If bond official, obligor to be duly emjiowered 130 Sureties not to be persons connected with institution . 130 The obligation to be unconditional 130 Discretion of Secretary of War as to requiring security . 131 Acceptance of personal bond in lieu of official 131 502 INDEX. Page. BOND. (Of Oovei*iior of State, &c., for arms.) Official bond contemplated by statute , 131 Governor bow to be em^jowered 131 Personal bond not to be accepted 131 BOUNTY. Distinguislied from pay 132 And from ordinary allowances 132 Eigbt to, on honorable discharge after requisite serv- ice 132-133 N^ot forfeited by desertion, if soldier honorably dis- charged 132-133, 233 Euling of Sui)reme Court in Kelly's case 133, note. Eight to bounty as affected by promotion 133 BREACH OF ARREST. Byofficer. (Art. 65.) 50 '-' soldier, an offence under Art. 62 44 BREVET RANK. :N"ature of 134 Eff'ect of in entitling to precedence on courts, &c 134 " '^ where officer specially assigned to duty ac- cording to 134 " " such assignment of colonel as department commander 134 Authority of colonel so assigned to order general courts 53-54, 134 Allowance to colonel so assigned of aids-de-camp 134-135 Brevet rank of officers transferred from volunteers, &c., to regular army 479 BRICiADE. Constituents of 56 " Separate,'^ how constituted 56-58 Effect of merger of in another command 90 BURGEARY. Definition of at common law 135 Offence not within definition how chargeable 135 INDEX. 503 0. Page. CADET. Appointment as, of unemancipated minor 136 Eligibility of, as affected by residence of parent 136 " " wliere parent resides out of U. S 136 ** '^ to appointment from district of parent's military station 136 Authority of member of Congress to nominate 136, 137 Effect of redistricting a State on authority to nominate . 136, 137 " " " " " " proper crediting and ap- pointing of 137 Provisional appointment, nature of 138 Eight of j)rovisional appointee to appointment to va- cancy 138 Reappointment of regular nominee to fill his own va- cancy 138 Amenability of cadets to trial for violation of Eegula- tions 138 Eeappointment of cadet discharged as deficient 138 Eight to service pay on account of ser\ace as medical cadet 367 CAMP FOLLOWER. Amenabihty of to military jurisdiction 48 Status of post trader as 384 CAPTURED PROPERTY. General priucii)le, as to its vesting in the State 4, 139 Application of i)riucii)le to real and personal property in late war 139 Disposition of by confiscation 139 '• " under Act of March 12, 1863 139 Eight of owner to compensation for 140 " to rent for i^remises occupied jure belli 140 Capture distinguished from imi^ressment . . 140 Eight of owner to re- captured property • 140 Claim of salvage for same 140, 444-445 Eight of civilian to withhold captured articles 14 504 INDEX. CASHIERING. Page. How formerly distinguislied from dismissal 141 No longer distinct in law 141 Significance of sentence "to be cashiered " 141 Term " cashiered " dropped generally from the Code. . 141 CERTIFICATE OF ATTENDANCE. See Witness 487, 488 CERTIFICATE OF MERIT. To whom grantable under Sec. 121G, R. S 141 Discharged soldier not eligible for 141 CESSION OF JURISDICTION. Exclusive jurisdiction over land, not acquired by mere occupancy ; 141 Nor by reserving land for military purposes 141-142 Modes of obtaining the same 142 Effect of consent of State to purchase of land by U. S . . 142 Meaning of term "purchase" in this connection 142, note. " " " " exclusive legislation " in Constitu- tion 142, note. Requirement, as to consent of State, of Sec. 355, R. S . 142-143 Qualified cession by State, effect of 143 General effect of cession of exclusive jurisdiction on personal rights and obligations 144 CflAEEENGE. To fight a duel. (Art. 26.) 14 Of member of court martial. (Art. 88.) 70-73 " " " " of inquiry. (Art. 115.) 97 CIIAPEAIN. Eligible to detail as member of court martial j 58 Or as judge advocate 296 CHARACTER. Statement of on discharge paper 231-232 Of accused, evidence of. 254 CIIAROE. Form of under Art. 62 47 Limit of time for service of 52 EN^DEX. 605 CHARGE— Continwed. Page. Formal parts of ■. 145 Essentials to legal sufficiency of. „ 145-146 Xot to be technically worded 140 How may be entitled 14G To be laid under i)roper Article 140 When may constitute a sufficient pleading under Art. 02 140-147 Faulty to charge a secondary in lieu of principal offence . 147 Charging same act under different forms 147 MultipUcation of charges 147 Accumulation of charges 147 Election as to prosecution of charges 147-148 Consolidation of sets of charges 148 Introduction of additional charge after arraignment . . 148 Irregular forms of charge 148 Averment of former convictions 148, 149 Specification to be appropriate to charge 149 " , misnomer or misdescription in 149 " exi)ressed in the first person, irregular. . 150 Double pleading 150 Written order or other writing, how set forth 150 Averment of time and place 150-152 Use of terms "on or about" and '^at or near" 151 Omission of averment of time or place 152 Statement of matters of evidence 152-153 Joint charges 153 Desertion not chargeable as joint offence 153 By whom charge may be i)referred 154 How to be authenticated 154 To whom to be preferred 154 Disi)osition of charges against superior officers 154 Eeferring of charges to court for trial 154-155 Withdrawal of charges 155 Amendment of, &c 155 Appending of list of witnesses 155 Form of charge in case of drunkenness 247 CIIJEROKEi: NATION. See Indian Wak , 293 506 INDEX. CHIEF inUSfiCIAW. Page. Military status of » 156 Amenability of to jurisdiction of inferior court 156 Xot a uou -commissioned officer ; 156 o^or subject to reduction to ranks . . 156 CEaiEF OF ENOII^EERS. Authority of to order court under Art. 81 , 63 CHIEF OF ORBl^ANCE. Authority of to order court under Art. 81 63 Returns to be made to, under Sec. 1167, E. S 355 CHIEF SICJNAI. OFFICER. Authority of to order court under Art. 81 63 '•' " " designate officers entitled to mounted pay 368 CITIZENSHIP. Of inhabitants of Alaska 104 Right of alien to acquire by military service 105 Forfeiture of by desertion 225 Restoration of by i)ardon 225 CIVIE ET?IPEOYMENT OF ARMY. See Army— EMPLOYMENT of for civil purposes . 111-115 " Posse Comitatus .380-381 CIVIEIAN. (ABneinatoility of to miliitary jta- risdicfioM.) For relieving the enemy, «&c., under Arts. 45 and 46 . . 20 After discharge, &c. under Art. 60 37 In case of retainers to the camj) 48 " civil employees in the field 48, 49 " clerks employed at military posts, &c 49, 50 " superiutendents of national cemeteries 50, 344 " discharged soldiers held as jjrisoners 212, 214 " inmates of " Homes" 214, 216 " paymasters' clerks 372 *' spies 455 (Elfly^abfliity t& Miillfitaa-y appoiEitMiCDaft.) See APPOINTI.IENT 107, 108-100 INDEX. 507 CIVII^IAN. (Competeifflcy to prefer cbarg^es.) Page. See Charge 154 civil. OFFICE. Prohibition of Sec. 1222, R. S 157 ConstitiitioDality of same 157 '' Civil office " defined 157 Embraces State and municipal office 157 Distinction between office and employment, illus- tirated 157-158 Civil employment of engineer officers „ 158 Employment as Indian agent 115, 159 Enlisted men not affected by Sec. 1222 159 Federal office under executive order of Jan. 28, 1873. 159 Eligibility to civil office of retired officer , 159 Civil office in a Territory 159 Holding by military officer of diplomatic or consular office 159-160 Application of Sec. 1223, E. S., to retired officers 160 CIVIIi PHOCESS. Liability to attachment of pay in hands of disbursing officer 160-161 " " '^ " officers' baggage 161 " " " " property required for use in service 161 Service of process of State courts at military posts, &c 161-162 " ^' '' '' Territorial courts at same .... 162-163 Authority of State court to enjoin a U. S. officer 163 Process of U. S. courts not to be interfered with 161 Liability of officer for obstructing XJ. S. process 161 Civil. RIGHTS. Of colored persons under Sec. 1977, E. S 164 Liability for denying same 161 CI.AIITIS. Authority to reopen settled claims 164-165 Payment of claims dependent on appropriation by Con- gress 165 Futile claims, not to be entertained 165 508 INDEX. CliAIMS— CoMtimied. Page. Assignment of claims 166 Conflicting claims 166 Interest on claims, when payable 166 Claims for unliquidated damages 166-167 ^' " "just compensation" for taking of i)rivate property 140, 168, 179 War claims 140, 168-169 Claims under Act of July 4, 1864, &c 169-171 " on implied contract 166-167, 179 Amenability of civilian clerk to military jurisdiction . . 49, 50 Authority to employ for court martial 171 Compensation and payment of . . 172 Not required to be sworn , , . 172 " to be allowed to remain at finding or sentence . 68-69, 172 Eight to pay of officer for services as clerk to court martial 172 Extra-duty pay of soldiers detailed as clerks to court martial 260-261 C1.0SS: ARKEST. Of officer, nature of 50, 119, 120 Breach of 50, 51 ClLOTIIIMCt Ai:.E.OWANCE. For clothing not drawn 172 When forfeited by sentence 172-173, 271 For clothing in kind 173 Not affected by forfeiture in sentence 173, 271 CI.®THSNG— EOSS OF. Eemedy in case of loss by officer 173 " of soldiers under army regulation 173 Authority of Secretary of War to make gratuitous issues 173-174 When Congress must be applied to 174 COILILEGE, (or Ufiiiversity.) Authority to detail officer as professor of 174 " " furnish arms to 174 Eeturns to be made of arms furnished 174 INDEX. 509 C01LL PEKSOIV. See Civil Eights 1G4 Colored Troops 175-176 €OEOREI> TROOPS. An employment of, not recommended 175-176 COMMAND. Failure to assume, when an offence 44-45 Authority to convene court an attribute of 54, 200 So, as to authority to act upon proceedings 89-90, 200 Devolution of 229 J^one possessed by president of court 392 Suspension from 468-471 " COMMANDING OFFICER." Disrespect to. (Art. 20.) 8 Authority of to arrest officer 119 COMMISSARY OENERAE OF SUBSIST- ENCE. Authority as to settlement of claims 169-171 COMMISSARY SERGEANT. Duty of under Sec. 1142, E. S 176 Cannot be charged with stores not belonging to U. S. 176 COMMISSION. See Appointment 106 COMMUTATION. Nature of , 94 Distinguished from mitigation r, ..... . 94 510 INDEX. COMPANY COMMANDER. Page. Eelation of to non-commissioned officers 176 Duty and liability of as to company fund 177-178 COMPANY FUN1>. Offence of making false return of 4 Nature of, as public money 177 Source of 177 When reverts to tlie U. S , 177 How disposed of and accounted for 177 Liability for misuse of, «&c 177-178 COMPENSATION FOR EXTRA SERVICES. Of clerk for services as acting chief clerk 178 *' soldier for services as acting assistant surgeon 178 ** ^' " " " spy or scout, in war 178 " postmaster for services as clerk to ordnance officer . 178-179 " officer for services rendered to a State 179 As distinguished from compensation for a distinct office , 434 COMPENSATION FOR PROPERTY TAKEN FOR PUBI.IC USE. IsTot payable for x>roi)erty captured from enemy 140 Executive department not empowered to award without authority of Congress 168 In case of property taken under necessities of war . . . 168-169 Employee of U. S. entitled to equally with any other citizen 170 COMPENSATION OF \YITNESS. See Witness 486-489 COMPOSITION OF COURT MARTIAE. As to class and number of members. (Art. 75.) 58-60 " " eligibilityfor detail of regular officers. (Art. 77.). 60 " " the rank of members. (Art. 70.) 60 CONDUCT TO THE PREJUDICE OF GOOD ORI>ER ANB MILITARY ©ISCIPI.INE. Sixty Second Article . 41-47 INDEX. 511 CONDUCT UNBECOMING AN OFFICER ANI> A GENT1.EMAN. Page. See Sixty First Article 37-41 CONFESSION. Admissibility of in evidence , 258 Of inferiors to superiors to be admitted with caution . . 258 Mere silence not confession 258 CONFINEMENT. Of soldiers in arrest. (Arts. GG and 70. ) 51, 52 " prisoners in penitentiary. (Art. 97.) 80-82 In general, see Imprisonment 284-290 " CONFIRMATION." Synonymous with " approval." 91 CONFIRMING OFFICER. See One hundred and fourth Article 89-91 " One hundred and sixth Article 91 " EEViEwiNa Officer 435, 436 CONGRESS. As to power to make rules concerning captures 4 " " " " dispose of the public property .... 4, 336-337, 400-401 " of to authorize api3ointments in army. . .106-109 u u u redress injury resulting from date of ai^pointment 109-110 " " " authorize emjDloyment of officers on civil duty . - 115 " " " authorize compensation for property taken for public use 168 function of, to authorize settlement of claims . . 164-169 authority to (contract with member of 189-190 power of, to aftbrd relief to contractor 195 ^' " " '^ " for loss of clothing, &c., by soldier 173-174 " " " authorize trial of civilian by court martial 212-213 " " ^^ afford relief to a dismissed officer.. 230 " a li reduce pay of soldier pending enlist- ment c 251-252 512 INDEX. €©NER. See Order, II 353-354 COPY OF CKAR^^E. Service of upon accused officer 52-53 OoiFy served need not contain list of witnesses .52, 155 COPY OF RECORI>. Eight of accused to. (Art. 114.) 95-96 Admissibility of in evidence 99-100, 255-256 CORPORAL PUNISHITIENT. Disuse of in practice .* 449 "CORPS." Meaning of in Art. 81, illustrated 63 In term '' different corps," in Art. 82 64-65 CORRECTION OF RECORD. See Record 419 Reviewing Authority 437 Revision 440-442 CORRESPONDENCE WITH ENEMY. How the offence may be constituted. (Art. 46.) 21 Suspension of writ of habeas corpus in case of offender. 279 0l6 INDEX. COUNCIL. OF WAR. Page. See Military Commission, I 325, note COUNSEIi. (In civil proceeding's.) Authority to emx)loy 198 How procured under existing law 198, 396-397 COUJVSEI.. (For accused, &c.) Continuance to i^rocure 77 Privilege of in general 199 Eestriction or denial of privilege of 199 Employment of officer as 199 Interviews of accused with 120, 199 Interviews of counsel with witnesses 199 Authority of court to assign counsel ; 200 Or to excuse member to act as 200 Judge advocate as counsel 299 Admission in court of counsel of prosecutor 400 COURT MARTIAI.. (AntSaority, function, &c.) As to authority to entertain complaints. (Art. 30.) . . 15-16 '' '^ '' '' punish for contempt. (Art. 86.) . . . 69-70 " " " ^' decide on challenges. (Art. 88.). .. 7^-73 " " " '^ grant continuances. (Art. 93.) .... 76-77 ^ot authorized to direct as to execution of death sen- tence. (Art. 96) 79 ^' a part of the U. S. judiciary 5 200 But of the executive department of the Government. 200 ]S"ot appealable from to U. S. courts 200 To be allowed to regulate its own i)rocedure 200-201 ^ot properly ordered to take particular testimony j . . . 201 Or to impose particular i)unishments 201 Not to trench on authority of reviewing officer 201 Authority over person of accused 201 Cannot arrest accused or a witness 201-202 Charges how referred to . . . 154, 202 Authority as to amending or striking out charges. . .155, 202 As to initiating testimony 202-203 " " excluding testimony in the interests of justice. . 203 " " taking testimony after plea ot guilty .... 203, 375-377 '' " '' " where plea and statement in- consistent 377-378 INDEX. 517 COURT inARTIAL,— Continued. Page. As to admitting testimony after case closed 203 '^ ^' taking- up a new case pending a trial 203-204 ^ot attended in practice by a provost marshal 202, note. Cannot dissolve itself 103, 204 ElSect of order dissolving same 204 Cannot excuse a member except on challenge 73, 204 " relieve its judge advocate; 204 Or authorize a member to act as judge advocate 204, 297 Communications between court and convening officer. 205 May sit on Sunday 205 Cannot be polled 205 May be closed but is generally open 205 May exclude disorderly persons from court room 205 Authority to sentence after escape of accused 205 " " make comments and recommendations in connection with sentence 205-206 Kot qualified to i>ronounce Act of Congress unconsti- tutional 214, note. May permit accused to modify or withdraw i»lea 37S-379 Controls and is responsible for its record 300, 421 How to correct its record on revision 419, 440-441 Not authorized to appoint reporter 427 Discretion of as to choice of sentence 448 Not authorized to issue attachment for witness . . - 4S9 COURT :nARTIAI.. (Jurisdiction of.) Of inferior courts under Art. 17 6 Over civilians in time of war. (Arts. 45 and 46.) 20 " deserters after expiration of term of enlistment. (Art. 48.) 23 " crimes in time of war. (Art. 58.) 27-28 Of officers and soldiers after discharge, &:c., under Art. 60 37 " inferior courts generally. (Art. 83.) 65-67 Over cadets for ^iolation of regulations of Academy. . 138 Its jurisdiction, in general, special and limited; 205-206 And criminal — does not extend to personal wrongs . . . 207 Coextensive with limits of U. S 207 As to offences committed outside limits of U. S 207-208 That arrest is outside does not affect jurisdiction 208 518 INDEX. C®UKT MAKTlAIi— Cotitinued. Page. To be amenable to, the party must be in the army .... 208 Offences committed before or m enlisting not cogniza- ble ...46,208 When jurisdiction over military person ends 208-209 Authority of Sackville's case . 209 Effect of discovery of offence after offender has left army , 209,294 Effect of return under a new commission „ 209 Discharge of soldier as terminating jurisdiction 209 Jurisdiction after expiration of service, where proceed- ings commenced before 210-211 Euling in Walker's -case 210 Jurisdiction over civilians in time of peace 211 " under Sec. 1361,E. S 212-214 Wildman's case . » 212, note. Arrest not required to give jurisdiction 119, 214 Voluntary appearance sufficient 119, 214 Effect of the resigning or discharge of the subject of an offence , 215 Double amenability to civil and military jurisdiction 84, 214-215 Amenability for offences committed on leave of ab- sence : 10, 31, note, 215-216 Peculiar case at National Home 216 Jurisdiction, as affected by terms of convening order. 353-354 ^^ over i^ost traders 354 " over retired officers 433 " over officers under suspension 468 COUKT OF IIV<|UIMT. Proceedings not affected by limitation of Art. 103 88 Copy of record of, how obtainable 96 Is not properly a court 96, note. Does not try or sentence 96, note. Can be ordered only in cases of what persons 96-97 Distinguished from a grand jury 97 Eight of subject of inquiry to appear and examine witnesses 97 Sessions of may be open or closed at discretion 97 Authority of to entertain challenges 9/ INDEX. 519 COURT OF IJVQUIRY— Coiitmwed. Page. Authority of to piinisb for contempt 98 Nature of its opinion 98 Members of may give dissenting opinions 98-99 May comment, &c., in connection with opinion 99 Admissibility of its record before a subsequent court martial 99-100 Authority for appointment of reporter for 427 Wife of party admissible as witness before 482 Attachment of witness not authorized for 489 COl^VARDICE. As a form of misbehavior before the enemy 19 Significance of term in Art. 100 82 CREDIT. (For g:ood conduct in confine- ment.) See IMPRISONBIENT . , 289-290 "CRIME." Meaning of in Art. 02 42 " "" '^ 65 50 CRUEE ANB UNUSUAE PU]\ISHME]¥T. See Sentence and Punishivient 448-449 " CUMUEATIVE " EEAVE OF ABSENCE. Right to allowan(je for quarters, of ofticer on 309 Effect on right to, of absence under suspension 310 CUMUEATIVE PUIVISHMEl^T. "When separate terms of imi)risonment are cumulative . 288-289 ^' sentences are cumulative in general 449-450 CUSTOM OR USAGE OF THE SERVICE. Punishments as recognized by 66, 448 Swearing of witness as sanctioned by 75 As sanctioning remission of sentences 93 " " challenges to members of court of in- quiry . . . . , 97 " affecting status of person put on duty when under arrest .... 101 520 INDEX. CUSTOM OR USAGE OF THE SERVCE— Con- tinued. Page. As not sanctioning employment of member of court as clerk 172 " ^' " interference with procedure of court 200-201 " to devolution of command in the army 229 '^ " liabilities and remedies of disbursing officer . . 229-230 ^^ "• the mm^m^«^^ quorum for military commission.. 327 a u a procedure in other respects of military com- mission 327 u u u reserving of land for military purposes .. 336, note. D. DATE OF APPOINTMENT. As fixing rank 106 Authority for correction of 109-110 "©AT." Meaning of in Act providing for extra duty pay 260 u u u sentence of court martial 450 DEATH SENTENCE. Eequirement in regard to of Art. 96 78-79 Form of— what it need not state 79 Execution of 79 Coleman's case 79-80, note. Cannot operate to forfeit pay 270-271 DEBT. As ground of a military charge 39-40 DECEASED OFFICER OR SOIiDIER. Disposition of effects of under Articles of War 100 Limited authority of military officials as to proi^erty of. 100 DEFECTS IN PROCEEDINwnished after discharge. 234, note. Honorable discharge final and conclusive in absence of fraud 232-233 Revocable if obtained by fraud 232-233 Effect of, pending a term of imprisonment 234 Entitles to bounty notwithstanding desertion . . .132, 133, 233 INDEX. 525 DISCKARGE— Continued. Page. Not essential to entitle to receive artificial limb 122 " " " " "pension 373-374 Discharge from enlistment on account of minority , . 250-251, 280 Dishonorable discharge — execution of when imposed with imprisonment 234 Postponement of, when unauthorized 234-235 Court not to leave date of to reviewing officer 235 Deferring of, cannot be made to extend term of enlist- ment 235 Involves no disability to enlist or hold office 235 When executed, cannot be commuted or changed to honorable discharge 235 Effect of an executed discharge 235-236 DISHONORABI.E: DISCHARGE. See Discharge 234-236 DISMISSAL. (By sentence.) By what Articles authorized or required 236, 447 Effect where Article makes mandatory 18, 41, 51 Equivalent to cashiering 141, 236 When and how takes effect 236-237 Cannot retroact, to divest right to pay, &c 237 Power of reviewing officer exhausted on confirmation of 237-238 After executed cannot be revoked or modified j 237-238 Or reached by pardoning power 237 Officer can be reinstated only by a new appointment. . 238 Effect of in making the officer a civilian 238 Withdraws him from jurisdiction of court martial . . .208-209 Entails no disability to re-enter public service 238-239 Effect of in case of prisoner of war 236, 394 Ee vocation of in case of naval officer 239 Restoration of officer dismissed by sentence. 390-391, 461-464 Dismissal as involved in sentence of reduction . 423 DISMISSAL.. (By Order.) Distinguished from dismissal by sentence 239 Authority and precedents for \ ..: 239 526 INDEX. DISMISSAL.— CoBatiBiiied. Page. Authorized though officer acquitted by court martial . 240 Cannot divest rights to pay 240 Effect of a dismissal ' '• by order of the Secretary of War " . 240 Dismissal by a military commander inoperative 240 Unless ratified by the President 240 When and how this dismissal takes effect 240 Effect of change of rank before notice of 241 No disability attached to 241 Kot capable of revocation 241 Effect of in making the officer a civilian 241 Officer restorable only by re-appointment 241 Dropping for desertion distinguished from 243 Effect of when officer is member of court-martial 321 " " " "■ ^'- prisoner of war 394 Eein statement of dismissed officer 241, 390-391 Trial of officer dismissed by order 242-244 Constitutionality of Sec. 1230, E. S 242, note. This Section not retroactive - 242 Application for trial, when to be made 242 Form of application 242-243 Effect of acquittal where regiment mustered out ...... 243 " where vacancy filled 243 Statute not operative in time of peace 243 Does not apply to officers dropped under Sec. 1229, E. S . 243 " Wholly" retiring as distinguished from dismissal .... 432 i>isori>£:r. [N'ot chargeable as mutiny 11 As a military offence 44-46 DISQUAL.IFICATIOJV. As incidental to cashiering 141, 244, note. Punishment of, as authorized by the code 244 " '' " sanctioned by precedent 244 The two forms of 245 A continuing i)unishment 245 May be discontinued by pardon 245, 358 Subject to serious legal objection . . , 245-246 Opinion of Attorney General 245, note. Disuse of in 1870 245, note. INDEX. 527 DISKESPECT. Page. To President, &c. (Art. 19.) 7 '^ Commauding officer. (Art. 20.) 8 DISSENTINO OPINION. By members of court of inquiry 98-99 " " '^ board of investigation 124-125 DISSOEUTION OF COURT. Court cannot dissolve itself 103 Effect of order dissolving court 204 " " " revoking same ....i, 204 DISTRICT COMMAND. As forming a separate brigade. (Art. 73.) 5G, 57 DISTRICT OF COI.UMBIA. Martial law in 317-318 Authority of Commissioners of over Washington Arse- nal 339 DIVISION. Meaning of in Art. 73 55 Merger of division command 90 DOUBEE AMENABIEITY. Of officer or soldier to military and ci^^l jurisdiction for same act 84, 214-215 DOUBEE PEEADINO. See Charge 150 DROPPINO FOR DESERTION. Under Sec. 1229, R. S., distinguished from dismissal. . 243 Officer dropped not entitled to trial under Sec. 1230 . . 243 DRUNKENNESS. Meaning cf " intoxicated" in Art. 3 2 On duty—offence of 16-18 As an offence under Art. 61 39 " ^^ " '' Art. 62 , 18,44 No excuse for crime, where voluntary 246 528 INDEX. DRUNKENNESS— Coiatiniaed. Page. As evidence of criminal intent 246 " ^' " species or grade of offence 246 Involuntary drunkenness, effect of 247 Eorm of charge as affected by fact of drunkenness 247 Liability of superior permitting intoxication of inferior . 247 Statement as to drunkenness of accused, admissibility of in evidence 255 Drunkenness as ground of retirement 432 DRUNKENNESS ON DUTY. See Thirty Eighth Article , « - 16-18 DUEI.EINO. Il^ot a specific military offence 14 DUPL.ICATINO PAY ACCOUNT. As an offence under Art. 60 33 E. EIOMTIl ARTICEE. (False returns.) Refers only to returns by certain co^nmanders 4 Construction of term " knowingly '^ 4 What kinds of returns included 4 EIGHTIETH ARTICl-E, (Field oflicer's COME't.) This court authorized only in war 61 A substitute in war for regimental, &c., courts 61 Who may detail .' 61-62 '^ " bedetailed 62 Recourse where no proper field officer available 62 Jurisdiction of 62, 65 [Not required to be sworn 62 Whole duty performed by the field officer 62 IsTo judge advocate emi)loyed 62 Record of i^roceedings 62-63 No challenge allowable . 63, 70 Power of punishment 65 INDEX. 529 EIGHTY EIGHTH ARTICEE. (Clial- leng^es to members.) Page. Field officers' courts alone exempt from challenge 70 Objection that member has preferred or is iirosecutiug the charges 70-71 " " he is a material witness 70 " " he is commanding officer of accused ... 71 " ^^ he has expressed or formed an opinion. 71 " " he is personally prejudiced 71 " " he is a junior in rank 71 ^' ^' he is next in line of promotion 71 " " he will gain a file if accused dismissed . 71 " " he was a member of a previous court in same or similar case 71, 72 " " he took part in previous investigation . 72 Procedure on challenge of member 72 Courts to be liberal in passing on challenges 72 But same not to be allowed without i)roof 72 Effect of disclaimer of prejudice, &c., by member 71, 72 Effect of imi:)roper disallowance of challenge 72-73 All the members subject to challenge, separately 73 Court cannot excuse a member in absence of challenge . 73 EIGHTY FIRST ARTICEE. (Regrimental or corps coairt.) Certain chiefs of staff authorized to convene courts under 63 Form of convening order 03-64 Authority of dejiartment commander over i)roceed- ings 64 EIGHTY FOURTH ARTICEE. (Oath of court.) Oath an essential preliminary to trial 67 Swearing must precede arraignment 67 Members to be sworn severally 67 " subsequently added to be severally sworn . . 68 " may be affirmed 68 Violation of oath, by entertaining new charge after sworn 68 " '^ " " judging according to personal information 68 34 D . 530 INDEX. EIGHTY FOURTH ARTICI^E-Contimied. Page Yiolation of oath, by judging according to private views of justice 68 " " " " stating or indicating vote in record 68 " " " " allowing clerk to record sen- tence. 68-69 Meaning of term ^' court of justice " 69 Instance of members compelled to disclose votes. ..69, note. Same oath now required of inferior courts 67 EIGHTY SECOND ARTICEE. (Oarrison, &c., court.) Officer convening need not be a field officer 64 '^ " cannot detail himself 64 Acting assistant surgeon not detailable on 64 Meaning of term '' other place " 64 u u u indifferent corps" 64-65 When member of court may become reviewing officer . 65 • EIGHTY SIXTH ARTICEE. (Contempts.) What acts punishable under by court 69 No power to punish its own members 69, note. Failure by witness to obey summons, not punishable . . 69 " " " '' testify, " '^ .. 69 Usual summary procedure o 69-70 Customary punishments 70 Amenability of offender to regular trial 70 EIGHTY THIRH ARTICEE. (Authority of inferior courts.) Jurisdiction and power of all such courts identical 65 Capital offences, however slight, not cognizable by 65 Instances of sentences in excess of authority of QQ Limit of j)ower of punishment, extent of (SQ Eeduction to ranks imposable by Q(y ]S^ot to be resorted to for trial of aggravated offences . 66-67 But cannot refuse to try because cannot adequately punish 67 INDEX. 531 EMBEZZrEHEIVT. Page. As an offence under Art. 60 33-36 a a u u u 02 43 EMINENT DOMAIN— RIGHT OF. As to taking land by, for national cemetery 343 " ^' acquiring land by, generally 406 Authority of Congress necessary to exercise of 406 ENEMY. Application of term in late war 20 To an Indian war 330 ENGINEER CORPS. Authority of Chief to convene court martial 63 Employment of officers of on civil work, as distinguished from civil office 158 '^ '' ^' " " improvements of rivers and harbors 290-201 Authority of in removal of wrecks 290, 291 Payment of allowances of 370 ENLISTMENT. Oath of, as prescribed by Art. 2 1 Prohibition of in Art. 3, effect of 2 Discharge from under Art. 4 2-3, 231 Ee enlistment without i)revious discharge. (Art. 50.) . . 23-24 Offences preliminary to, or in, enlisting 46 Must be comi)lete to bring soldier within military juris- diction 208 What constitutes evidence of contract of 248-249 Effect of non-comi)liance with army regulations in making 249 ^' ^' " " " Sees. 1116-1118, E.S. 249-250 " " enlistment by a deserter 250 " " '^ "" '' from the navy 250 Discharge from enlistment of minor 250 Minor cannot discharge himself 2, 251 " not properly discharged when held as deserter. 251 Enhstment for less than five years illegal 251 " on Sunday not illegal 251 532 INDEX. ENL.ISTMENT— CoMtmued. Paga Autliority of Executive to modify contract pending enlistment ... 251 *^ " Congress to reduce pay pending enlist- ment 251-252 Enlistment for ''three years or during the war," liow construed . . 252 " for the " General Service " 252-253 Authority to stop pay for liability under previous en- listment , 363 ENL.ISTMENT PAPER. Statement of oath in 1 Now the usual evidence of enlistment 249 ERROR. See Defects in Proceedings, &c 218 ESCAPE. As an offence under Art. 60 , ...... 44, 224 Authority to use force to prevent 51, 121, 452, note. u u u irons in orderto prevent 121, 219, 286 Of accused, effect of on authority of court to sentence. 205 As evidence of intent to desert 223, 224 Authority to recommit prisoner after 287-288 EVIDENCE. Depositions, when admissible in. (Art. 91.) 73-75 Matter of, not to be stated in charge 152-153 Initiation of by the court 202-203 Authority of court to exclude, though not objected to. 203 Introduction of, notwithstanding plea of guilty . .203, 375-377 " " after case closed 203 Drunkenness as evidence on question of intent 246 Application to military cases of rules of criminal evi- dence . . 253 Eules to be applied irrespective of rank of accused . . 254 Interrogation of witnesses as to exi^ressions of hostility to accused 254 " " " '' 'f having made other statements 254 INDEX. 533 EVIDENCE— Continued. Page. Estimate of the weight of evidence 254 Evidence to be considered, if pertinent 254 " of good clmracter 254 Examination of witnesses not to be leading 255 Form of interrogation as to drunkenness of accused . . 255 Record of previous trial, &c., when admissible 255-256 Ux parte affidavits not evidence 256 Muster rolls as evidence 256 Official records of officer of Signal Corps, do 256, note. General and Special Orders, do , . . . 256-257 Telegraphic dispatches, do 257 Testimony given by a public enemy 257 '• " ^' an accomplice 257 " '« " a deserter 257-258 Admission in evidence of confessions 258 Testimony of the accused, when admissible 258, 482 To be received subject to the usual tests 2oS, 482 Extenuating circumstances in evidence 258-259 Official papers, admissibility of 349-350 Proof of i^erjury and false swearing 375 !N'o evidence admissible on revision 441 *' Statement" of accused, not evidence 457 Majority vote necessary to sustain objection to evi- dence 479 Criminating evidence, privilege of witness as to 486 EXCHANGE AND TRANSFER. Between captain of infantry and military storekeeper. 340 exchanc;e of prisoner of war. See Prisoner of War 393, 394 EXCEUSIVE JURISDICTION. See Cession of Jurisdiction 141-144 EXECUTED SENTENCE. Cannot be rescinded or modified by reviewing offi- cer . 237, 390, 439 Or reached by the pardoning power 93, 357, 390 EXEMPTION FROM ARREST FOR DEBT. Of soldier, under Sec. 1237, K. S 122 534: INDEX. EXEMPTION FROM ATTACHMENT AND EXECUTION. Page. Of pay of officer or soldier 160-161 " property required for use in the service 161 " baggage of officer , 161 EXIGENCY. (Piitolic.) As dispensing with advertisement for proposals prior to contract 185-187 EXTENUATING CIRCUMSTANCES. Admissible in evidence in mitigation of punishment, &c 18, 35, 36, 247, 258-259, 346, 376, 380 EXTRA COMPENSATION. See Compensation for extra services 178-179 EXTRADITION. Under treaty with Mexico, through military commander in Texas 259-260 EXTRA DUTY PAY. Meaning of word " day" in Act providing for , . , 260 Signal corps soldiers, entitled to as artificers 260 Packers entitled to as laborers 260 Enlisted men detailed as clerks, entitled to as laborers .260-261 Forfeited by sentence of forfeiture of pay and allow- ances 271 EXTRA PAY. Under act of March 3, 1865 261 Eight of certain volunteer officers to 261-262 ^' " officer mustered out as supernumerary 365-366 Obligation to restore it on reappointment 366 F. FAESE RETURN. See Eighth Article 3-4 FAESE SISVEARING. See Perjury 374-375 INDEX. 535 FELiONY. Page. Military offences not felonies 334 Consequences of felony not attaclied to military con- viction 334 FURRY. Authority to grant ferry franchise 403 FIELD OFFICER'S COURT. Composition J function of, &c. (Art. 80.) 61-G3 Jurisdiction of G2, 05 Not subject to challenge 03, 70 FIF TIE Til ARTICEE . (Re -enlistment with- out discbarg^e.) Construction of 23-24 Does not create a species of desertion 23 Held not to apply to a case of a marine j 24 I^or to a soldier discharged in fact but not formally ... 24 FIFTY EIGHTH ARTICEE. (Special juris- diction in time of war.) Not oi)erative in time of peace 27 The jurisdiction conferred not exclusive 27 Form of charge under 27-28 Operation of, when terminated in late war 28 Provision of as to j)unishment 28 FIFTY FIFTH ARTICEE. (Injury to prop- erty of civilians.) Purpose of Article 20 Ko defence that person injured was an enemy 20 Effect of word "maliciously" 20-27 FIFTY FIRST ARTICEE. (Advising: or persuading: to desert.) Advising and persuading to desert distinguished 24 FIFTY FOURTH ARTICEE. (Reparation for injuries to civilians.) Apparent contemplation of 25 Equitable application of 25 Construction of in G. O. 35 of 1808 25 Need of amendment of 25 536 m-DEx. FIFTY FOURTH ARTICI^E— Continued. Page. Nature of the stoppage provided for 25 Proceedings not affected hy civil liability of party 2Q Limits of power of reparation » 26 Commanding officer not authorized to punish 26 Damage not to be assessed by a court martial 26 FIFTY NINTH ARTICI.E. (Arrest by civil autliority.) Purpose of Article 29 Arrests not according to unauthorized 29 Eelease of military x)erson not duly arrested 29 Form of application for surrender of accused ....... 29-30 Application required, though offence committed before entering service — 30 Meaning of term ''■ laws of the land" 30 Cases in which Article does not ai)i)ly 30-31 Surrender where military offence also involved 31 Case of soldier released on bail 31 Voluntary surrender not to be permitted 31 Eemanding of escaped prisoner arrested under Article . 31 FIFTY SECOND AND FIFTY THIRD ARTICLES. These Articles, dead letters ^ 391, note. FINDING. Two-thirds not necessary to, where death sentence im- posed 78-79 To be governed by evidence in connection with plea . . 262 '' follow plea, where no evidence 262 On charge and specification to be consistent 262 Of guilty, when sufficient to support sentence 262 Should be a separate, on each charge and specification . 262 To cover all the charges and specifications 262 " show what found proved and what not 262 Exceptions and substitutions in 263 Care to be taken not to except gist of charge 26-27, 263 Finding of lesser included offence authorized ; 264 But not of an offence quite distinct in nature 264-265 Of *' conduct to the i)rejudice," «&c., under charge of " conduct unbecoming," &c 265 Of same under charge of specific offence. ... 265 INDEX. 537 FINDINO— Continued. Page. This finding to be resorted to, to prevent failure of jus- tice... 2G6 Not to relieve offender from just punishment 2GG Eeverse of this finding not allowable 2G5-2GG Effect of tie vote on a proposed finding 2GG Court in finding may consider manner and appearance of witnesses 2GG-2G7 Statement of finding in record 417-418 What finding necessary and sufficient to support a sen- tence 448 FINE. Extent of, by sentence of inferior court. (Art. 83.) . . . 6G Imi)Osable only as a punishment by court martial — 2G7 Distinguished from stoppage 2G7 Can accrue to United States only 2G7 Not applicable to benefit of an individual 2G7 Court cannot direct as to collection of 2G8 Not imposable to defray expense of x)rocuring witness for accused 2G8 Eemission of in case of poor convict , 2G8 Punishment of imprisonment till fine paid 285 FLAO OF TRUCE. Nature of privilege of 2G9 Not a protection where law of war violated 2G9 Distinguished from safe-conduct 2G9 Offence of fraudulent employment of 329 FOREION SERVICE. Eemuneration of officer for 269 Authority to render 269-270 FORFEITURE. (By operation of law.) Liability for, in case of desertion 225-226 Is independent of sentence ; 270 And not to be imposed in sentence 270 Is not a subject of remission 270 Disposition of amounts forfeited 270 Authority for reimbursement of same 270 538 INDEX. FORFEITURE BY SEWTEJVCE. Page. Limit of authority of, in case of inferior court. (Art. 83) 66 Sentence of should clearly fix the amount ..... 270 Of pay cannot be effected by implication , . 270 " " " " '^ " mere misconduct 271 " " does not affect allowances 271 " clothing allowances 172-173, 271 " extra duty pay 271 ''pay, &c., enures to U. S. only .... 271-272 For benefit of Soldier's Home 272, note. Of '^monthly" pay, effect of 272 In connection with imprisonment for same period 272 Execution of— against what pay chargeable 272-273 ^^ '' practice of Pay department as to 273, note. " " as to amounts excepted from 273 '^ " where extending beyond term of enlist- ment 273 Stoppage of against pay of soldier under subsequent enlistment 273 Execution of in connection with reduction 273-274 Can not affect pay already received ; 274 Or bounty money paid and held in trust for soldier 275 Upon execution, becomes money in Treasury- 274 Not subject to be withdrawn excei)t by authority of Congress ; 274 Or to be diverted to a particular fund 275 FORGERY. As an offence under Art. 60 . . 33 " " '' ^' '' 62 43 FORMER CONVICTIONS. Statement of in specification .... 148-149 FORTY EIGHTH ARTICLE. (I^isibilities of deserters.) Liability to make good time lost, incident only on con- viction 21-22 Need not be imposed in sentence ., . . 22 Not affected by period passed in arrest 22 Cannot be enforced after a discharge 23 INDEX. 539 FORTY EIGHTH ARTICLE— Continued. Page. May be waived by U. S., and how 23 Liability to trial after expiration of enlistment 23 Cannot be enforced after a discharge ; 23 Or after period of limitation prescribed by Art. 103 ... 23 FORTY FIFTH ARTICEE. (Relieving^ tlie enemy, &c.) Amenability to trial under, of civilians 20 " Enemy '' — meaning of in late war 20 Believing may be hy exchange . > . . 20-21 " as distinguished from trading with enemy . . 21 FORTY SECOIVD ARTICLE. (Misbehavior before enemy, &c.) Misbehavior before enemy defined , 19 May be committed in Indian war 19 Construction of term — " his arms," &c 19 FORTY SEVENTH ARTICEE. As making receipt of paj' evidence of enlistment 222, 219 FORTY SaXTH ARTICLE. (Holdings corre- spondence \i'itli enemy, &c.) Offence of holding corresi:)ondence, when complete 21 a a giving intelligence, proof of 21 FOIJRTBI ARTICLE. (DiscBiarg^e of soldiers.) Eight of soldier to discharge 2 When discharge takes effect 2-3 Certificate of discharge as evidence 3 The two kinds of discharge distinguished 3 FRAUD. Forms of, held chargeable under Art. 60 33 Meaning of " fraud " in Art. 100 82 Fraud as vitiating bid 183 Discharge obtained by, revocable 232-233 FRAUDUEEIVT CEAOI. Instances of under Art. GO 33 FRAY. See Twenty Foueth Article 13, note. 540 INDEX. FUEL, AL-LO^H^AWCE. Page. Eight to of officer " awaiting orders" 367 " '' ''• detailed as professor of college 370 u a u retired officers 370, note. a u u officer absent on sick leave 370 Furnisliing of to families of officers temporarily ab- sent 370-371 Allowance of fuel equivalent to wood 370, note. Effect of partial remission of, by way of exception from \ 214.-21^ Forfeiture of travel pay 371 ''- by suspension of pay 469, 470 FURL.OUOH. Disobedience of orders by soldier on 10 Arrest of soldier for civil offence when on 31, note. Jurisdiction of offences committed on 215-216 G, OAMBL.INO. As an offence under Art. 61 39 " " " u ii 62 45 When cognizable as an offence, generally 276 Particularly objectionable in case of disbursing officer. 276 OARNISHMENT. Of military pay, unauthorized 160-161 OARRISOIV COURT. How constituted, &c. (Art. 82.) 64-65 Jurisdiction and power of punishment of. (Art. 83.).. 65-67 OENERAL. OF THE ARMY. Status of aids of 103-104 Not eligible to the office of Secretary of War 157, note. OENERAL ORDERS. Admissibility in evidence of 256-257 As issued from Navy Dei^artment 276, note. INDEX. 541 *'GE1VER4L. SERVICE." Page. Enlistment into as such not authorized „ . . 252 Forfeiture of clothing allowance of soldiers detailed in . 271 OENERAL. STAFF. Of what officers it consists 276 Is the staff of the President as Commander-in-chief . .270-277 As such, under the direction of the Secretary of War. 277 Members of, when subject to taxation 429 OIVINO INTEI.I.IGE1VCE TO THE ENEIflY. In what offence consists. (Art. 4G.) 21 Suspension of writ of habeas corpus in case of offender. 279 OOOD CONDUCT IN COJ^FINE^UENT. As entitling prisoner to abatement of punishment. . .289-290 GOVERNOR. Authority of to apply to President for military aid. . .111-112 Bond of, on issue of arms to State 131 Requisition by, for military prisoner 428-429 Exercise by, of war power 481 OIJARD DUTY. Unreasonable amount of, as extenuation of offence under Art. 39 18 Liability of officer for unduly imposing 18-19 Imposition of as a i)unishment not favored 449 Eespect due to soldier in performance of 453-454 OUERRIEEA. Guerrilla warfare as a violation of laws of war 329 OUIETY. Plea of does not supply a want of jurisdiction ... 8G, 211 Introduction of evidence with plea of . . 203, 375-377 542 INDEX. H, HABEAS CORPUS. Page. Successive' suspensions of writ of, during late war. . .278-279 Question whether President can suspend without au- thority of Congress , ... ... 278, note. Effect of suspension of on power of courts 279 u u revocation of proclamation of suspension of 1865 279-280 Power of State courts to discharge soldiers on habeas corpus 280-282 Tarble's Case. Importance and finality of the adjudi- cation , 280-281, note. Eeturn to writ issued by State court 281-282 Officer not to i)roduce body of soldier 281, 282 Order of discharge by State court to be resisted 282 If soldier released, to be re-arrested 282 Procedure where writ issued by U. S. court 282 Suspension of writ as incident to martial law 318, note. HARE> I.ABOR. See Imprisonment 286 HEAD OF DEPARTMENT. Authority of to reopen settled claim , . ... 164 Cannot be made arbitrator between conflicting claim- ants 166,407 Authority of to employ counsel 198, 395-397 As representing the President, generally 445 Authority to settle taxes due by U. S 476 HOLDINO CORRESPONDENCE TVITH THE ENEMY. What may constitute the offence of. (Art. 46.) 21 Suspension of writ of habeas corpus in case of ofiOE ADVOCATE. ]N'ot provided for a field officer^s court. (Art. 80.) 62 Authority of to swear witnesses. (Art. 92.) 75 How sworn when a witness. (Art. 92.) 75 Employment of counsel to assist 198-199 Under Art. 74 may be detailed for inferior courts 290 Any commissioned of&cer may be detailed 296 Detail of medical officer not in general to be resorted to 319 A separate detail of, necessary for every court 296 Same officer may be detailed as, for successive courts. 296-297 Staff judge advocate cannot act as, unless regularly detailed 297 Eelieving of and making new detail of 297 Court cannot reheve or detail a member as .204, 297 Detail of civilian as 297-298 Kot subject to challenge 298 Officer hostile, &c., to accused, not to be detailed as . . 298 Authority to entertain charges 298 " as to amending, &c., charges 155, 298-299 Authentication of charges by 154 Conduct of prosecution by . . - 299 How far to counsel and assist the accused 299 Has no power of arrest or restraint of accused 299 Province as to furnishing oj)inions to court 300 Keceiving and recording of his opinions '. 300 Duty when remaining with the court on deliberation . . 300 " as to preparation of record 300 Effect of his temporary absence from court room 300-301 How examined when testifies as a witness 301 548 INDEX. JUDGE ADVOCATE— Continued. Page. ^'ot iu general to be detailed for other duty 301 Entitled to closing argument , 301 May present '^statement" tliough accused does not. . . 301 His statement not to contain new evidence 301 Authentication of record by . 301 Authority of to ai)point reporter ....,, 301 Not subject to arrest by the court ; 301 But liable for a contempt under Art. 8G 301-302 Duty of as to forwarding records to reviewing officer . . 302 Authority of to administer oaths under par. 1031, A. E . 302 The only official prosecutor in our law 399 To be present at a revision 419 But not authorized to correct record 441 Competent to testify as a witness 483 Duty as to summoning witnesses for accused 483-484 u u u furnishing witness with certificate of at- tendance 487 Authority as to service o± summons 484-485 " " " issuing and serving attachment for witness , 489-490 JURISDICTION. Of general court martial. (Court Martial, II.) 206-216 " inferior " " (Eighty Third Article.) 65-67 *^ military commission. (Military Commission, II.). 327-333 Cession of by State to United States 141-144 JURY DUTY. Liability of retired officer to 433 JUSTIFICATION OF SURETY. See Bond .... 128-129, 131 K. KIEEINO. When chargeable as a military offence 27, 42, 43 Of soldier by officer, when justified 313, 314 When amounting to manslaughter 314, 341 " '' ^' murder 341 Of prisoner of war 341-342, 393 INDEX. 549 Page. Meaning of as employed in Art. 3 2 u a u li a a 3 4. Not imputable to U. S. in delaying to sue on bond 128 L.AND. Public, as distinguished from reservation 338 Of the United States, authority to dispose of 400-404 Acquisition of for the United States 405-40G r-ARCEWY. As an offence under Art. 58 , 27 '^ " " '' Art.60 3C,37 " '^ " ^' Art. 62 42, 43 Fact of drunkenness as admissible under charge of . . . 246 "I.ATFFUI. COMinAIVD." Significance of term as employed in Art. 21 9 Disobedience of order not lawful, not an offence 9 Instances of orders held not lawfid 10 Opposition to an unlawfid command, not mutiny . 12 Illegal order of superior, no justification to inferior . .352-353 "L.A1FS OF THE L,A]VD." Meaning of term as used in Art. 59 30 r-ATT OF TFAR. Defined. A part of the law of nations 303 Inhibits all intercourse with enemy ; 303 Except as authorized by the State 303 Prohibition of intercourse during the late war 303-304 Instances of violation of same 304-305 Violation of, as committed by foreigner 304-305 Instance of party violating j^laced under surveillance and bond 305 Retaliation for illegal arrests authorized by 305 550 INDEX. JLA^W OF WAR— Contmued. Page. Suppression of hostile newspaper as justified by 305 Illicit correspondence through newsi^ajDers in viola- tion of 305-306 Seizure of moneys as justified by 306 Contributions exacted from enemy justified by 306 As authorizing commander to suspend local laws 306-307 " " institution of si)ecial tribunals 307-308 Provost courts during late war 307, 308, note. Exceptional jurisdiction of such courts, as confirmed by Supreme Court 308, note. Early and later adjudications as to such courts 308-309, (note.) Jurisdiction of military commissions under law of war 327-328 Violations of, as passed upon by military commission. 328, 329 I.EAVEN1VORTH PRISON. See Military Prison 335 1.EAVE OF ABSEMCE. Effect of on amenability to military jurisdiction. .31, note, 45, 215-216 ^' " '^ authority to convene courts martial 54 " " " " " act on proceedings of courts martial 89-90 Officers on cumulative, entitled to allowance for quar- ters 309 Eight to cumulative, as affected by absence under sus- pension 310 Principle that leave terminates at station, illustrated . 310 Eight to mileage where leave suspended by order 323 EEASE. Of land, &c., fortheU. S 181,187-188 For what term authorized to be taken 187, 188 Authority to lease land belonging to U. S 401 EESSER IIVCEUDED OFFENCE. Trial for, as affected by Art. 102 83 Conviction of, an acquittal of greater offence 228 Finding of, under charge of greater offence 264 INDEX. 551 Page. From State, for public sale 311 Of post trader 383 To occupy land of U. S 403 I.IIIIITATI01V OF PROSECUTIOJVS. Law of as governing courts martial. (Art. 103.) 85-88 Not applicable to proceedings before retiring boards . . 431 LIQUIDATED DAMAGES. Eelease of contractor from by Secretary of War 193 Effect of stipulation for in contract 193, note. As distinguished from a penalty 193-194, note. EOSS OF FIEES. A recognized punishment in case of an of&cer 311 " continuing " tiU remitted 311, 312, 358 Does not require confirmation by President 311 Effect of — what rights divested 312 When an objectionable punishment S12 " severe as compared with suspension 312 M. MAJORITY. Governs in votes and findings of courts martial. .266, 400, 479 Court cannot be adjourned against will of c 392 Minority cannot record protest against will of 400 MAKING GOOD TIME EOST BY DESER- TION. See Forty-Eighth Article 21-23 "MANIFEST IMPEDIMENT." What constitutes, in sense of Art. 103 , . 86-87 MANSEAUGHTER. As an offence under Art. oS 27 " " " " " 02 42, 43 In killing of soldier by officer 314 As distinguished from justifiable homicide 313, 314 '^ " ^' murder 341 552 INDEX. MARRIAOE. Page. As affecting validity of subsequent enlistment 249 Cannot be solemnized by officer of Army '. . . 315 Authority to prohibit soldiers from contracting 315 By soldier, though i)rohibited, not a military offence . 10, 315 MAKTIAJL I.AW. Defined -... 315-316 Effect of - . 316 Does not authorize excess or wanton violence 316 Authority exercised by military commander under. . . 316 As authorizing the enjoining of proceedings of courts . 316-317 When occasion for no longer exists 317 Existence of in Baltimore in 1865 317 Period of its existence in Dist. of Col 317-318 Its relation to suspension of writ of habeas corpus . . 318, note. MAXIMUM. Of members of general court martial. (Art. 75.) 58 Statement in convening order where less number de- tailed 59-60 "MAY." Instance of "shall" construed as equivalent to. (Art. 58.) 27 In a statute, when construed as must or sliall 458-459 MEDICAE, CADET. Status of under Act of Aug. 3, 1861 367 Right to service pay on account of service as 367 MEDICAI. OFFICER. When '^ on duty " in sense of Art. 38. 17 Acceptance of civil office by 158 Responsibility of for health of the command 318 Effect of his action in excusing men from duty 318 Eligible for service as member or judge-advocate of court martial 318-319 But in general not to be detailed as such, if avoidable. 319 Authority to employ private physician under par. 1309, A. R 319 MEDICAE STOREKEEPER. See Extra Pay 261 INDEX. 553 M£MB£B OF COURT. Page. Legalmaximum and uiinimiim of members. (Art. 75.). 58-59 A member not punishable for contempt. (Art. 8G.) .60, note. Liability of to a challenge. (Art. 88.) 70-73 Exemption of from arrest while in court 120 Not entitled to be compensated for acting as clerk to court 172 " excusable by court except on challenge 72, 201 Court cannot authorize to act as judge advocate 201 Detail of officer on court and commission at same time . 206 Member not in general to be charged with other du- ties 319-320 Liability to other duty as afiected by par. 901, A. li . . 320 Accountability of for absence from court 320 Explanation of absence 320 Effect of return of absent member 320-321 Adding of new member , . . 320-321 .Precedent in Hull's case 320-321 Effect of dismissal, retirement, &c., of member 321 " " promotion of 321-322 Status of when testifying as witness 322 Equality of members on a trial 392 Majority to govern 392,400 Authority of member to record protest 400 " " " '' correct record 441 Obligation of all members to vote a sentence 447 ME]UB]E:R of OB DFIiFGATE TO CO]¥- OR£SS. Prohibition of contract with 189-190 When prohibition becomes operative 190, note. See Officers' Mess 466 MEXICO. Jurisdiction of court martial over offences committed in 207-208 Operation of extradition treaty with 259-260 MIDDL.E NAME. Immaterial if omitted in charge or sentence 149 IS^ot a necesary part of christian name in law 477 554 INDEX. Page. Of officer on leave ordered to return to station 323 " " ^^ " orderedtoduty and then to station. 323 '•'■ " ordered to attend his own trial 323 " '^ permitted to delay return under orders.. .323-324 MII.5TARY ACABEMY. Appointment of cadet of 130-138 Eegulations of, amenability of cadet for breach of 138 Eeappointment of cadet of, after discharge as deficient . 138 Professor of, right to pay 398 Sentence of suspension from, effect of 471 MIlLITAIfY— AMENABII.ITY OF TO CIVIIL AUTMORSTT. Arrest'of by civil process 28-31, 121, 161-163 Exemx^tion of from arrest for debt 122 Liability of to trial by civil courts 214-215 Status of at place under exclusive jurisdiction of U. S . 144 MII.ITARY COMMIS!§IOJ¥, Origin of in Mexican war 324 and note. Use of in late war 324-325 A recognized tribunal for time of war 325-326 Composition, procedure, &c., not regulated by statute . 326 In these respects assimilated to court martial 326 Three members the minimum 327 Sworn, &c., like court martial 327 Jurisdiction of 327 Two classes of offences cognizable by 327-328 Legitimate acts of war not cognizable by 328 Violations of laws of war passed uiDon by during late war 328-329 Crimes similarly passed upon 329 Classes of offences not within jurisdiction of . . 330 No jurisdiction of offences of Indians with whom no war pending 330-331 None of offences properly cognizable by court martial. 331 Jurisdiction of under lleconstruction Acts . 332-333 Limit to period of same j 333 And of period for execution of sentences 333 Jurisdiction of, in general, when it terminates 333 ITs^DEX. 555 ItllLITARY CO.HiniSSIOIV-Commued. Page. lias no jiirisdiction of civil actions for damages, «S:c . . . 333 Its power to sentence not regulated by statute but dis- cretionary 333 Awards criminal lumisbments, not civil judgments; .. 333 Nor punishments reserved to courts martial 333- -334 Eeference by to civil statutes in fixing measure of pun- ishment 334 Character of sentences imposed by during late war. 334, note. MII.ITARY DUTY. Not properly imposable by way of punishment 349 MII.ITARY GOVERNMENT. As authorized by conquest and occux^ation, in war 303, 316, note, 327, 328, note. MILITARY OFFENCE. As distinguished from felony or misdemeanor ........ 334 No consequences of felony incident to conviction of. . . 334 MILITARY PRISON. Jurisdiction over discharged soldiers held as prisoners at 212-214 Discipluie at, authorized by Sec. 1353, E. S 212 Execution of sentence of imprisonment at 284-287 Credit for good conduct under sentence ...... ... 289-290 Authority to dispose of proceeds of articles manufact- ured b}' i^risoners 335 Shoes manufactured at may be issued to army 335 Requirement of Sec. 1345, R. S. as to Board of Gov- ernment 335 Eequirement of Sec. 1346, E. S. as to visiting prison . . 335 Subsistence of prisoners, law in regard to 466 MILITARY RESERVATION. Service of civil i^rocess on 161-1C3 Effect of cession of State jurisdiction over 144 Status of occupants where exclusive jurisdiction vested inU. S 144 What is a military reservation . . 336-337 Authority for establishing 336, note. Form of declaring 337, note. 556 INDEX. MII.ITAISY RESERVATION— Contimied. Page. Eelinquishment of by President 337, note. Not a part of the public lands , 338 Establishment of within an Indian reservation 338 Cutting' of timber on for use of post 338 Trespass upon of i^rospectors for mines 338 Eemoval of intruders from 114, 339 Status of reservation at Washington Arsenal 339 Authority to sell land of 9, 10, 400-401 " " dispose of usufructuary interest in 401-403 " ^' give license for temi)orary occupation of. 403-404 '' " allow post trader to erect buildings upon 386, 387, 403 Liability to local law, &c., of trader doing business on. 386 MII.ITARY STOREKEEPER. Eight to service pay of one appointed in 1861 339-340 Exchange by with captain of infantry 340 MIEITIA. As to composition of court for trial of S7 Distinguished from volunteers in late war 60 MIJ^IMUM. Of members of general court martial. (Art. 75.) 59 A less number incompetent to try .... 59 Of members of military commission 327 MINOR. Discharge from enlistment of . , 250-251, 280 MISAPPROPRIATION. I^atui^eof offence. (Art. 60.) 36 MISBEHAVIOR BEFORE THE ENEMY. See Forty second Article 19 MISDEMEANOR. A military offence not a, in legal sense 334 MISNOMER. As matter for plea in abatement 149, 379 " constituting a variance 477 INDEX. 557 MISTRIAL.. Page. !N"ot a trial in sense of Art. 102 . 84 Instances of 83-84 MITIGATIOIV. Nature of 94 Distinct from commutation 94 Grounds of 359-360 "MOIVTH." Construction of, in a sentence 450 MOUNTED PAY. What ofacers entitled to 367-3G8 MUNITIONS OF TTAR. Disposition of those captured from the enemy 4, 139 Free transportation of over Georgetown bridge 340 MUKI>£R. Jurisdiction of court martial of 27, 42 Definition of „ 341 Manslaughter, how distinguished from 341 Degrees of 341 In killing one person when intending to kill another. . 341 " " a prisoner of war 341-342 Presumption of, in case of ofiicer from use of sword . . . 343 MUSICIAN. Amenability to orders of 10 Status of ''principal musician" 107 u u a ehief musician" 156 MUSTER INTO U. S. SERVICE. Effect of in a case of a volunteer officer 208 MUSTER OUT. As a form of honorable discharge 232 " affecting rights of pay 362 " " amenability to trial of volunteer officer.. 37 " '' status of member of court 321 MUSTER ROEE. As evidence 222, 256 558 INDEX. MUTI]\OUS CONDUCT. Page. As distinguished from mutiny 11 MUTINY. Offence defined 11 Distinguislied from mutinous conduct 11 Effect of good faith on part of offender 11 Opposition to illegal order not mutiny 12 Offence as extenuated by oppressive conduct of supe- rior 12-13 Mutiny as justifying the taking of life 314 K NAVY. Disposition of deserter from 24^ 250 Eight to citizenship on account of service in 105 Statutory sanction of Eegulations of 117-118 EnUstment of deserter from , 24, 249-250 Dismissal of officer of 239 General Orders of 276, note. Offence of peijury under code of 374, note. NATIONAI. CEMETERY. Effect of appraisement for by U. S. court , 343 Ground for new api^raisement 343 Exclusive jurisdiction over, how vested in U. S 343 Authority to erect buildings for w 343-344 " " expend ai)pro]3riation for 344 " of Supt. to arrest trespassers . 344 Supt. as a civilian not amenable to military trial 50, 344 Kemoval from office of, for misconduct 344 Liability of to work on roads of State 144-145, note. NATIONAIL HOME FOK DISABLED YOE- UNTEERS. Inmates of not amenable to military jurisdiction 214, 216, (notes.) " " " competent to compose a court martial.. 216 INDEX. 559 Page. As offences under Art. 62 44-46 WEl?r MEMBER. To be separately sworn 68 Addition to the court of 320-321 Testimony to be read to 320 Euling on Hull's trial 320-321, note. NEir TRlAIi. Eare in military practice 106, 345 When authorized 344-345 !N^ot demandable as a right 345 NINETEENTH ARTICI.E. (Disrespect to President.) Offences under during late war 7 Usual punishment of 7 Mere political discussions not made subject of charge . . 7 NINETY FIRST ARTICLE. (Depositions.) Conditions imposed by Article uj)on admission of depo- sitions 73-74 Waiver of restrictions of Article 74 By whom depositions may be taken 74 Depositions of high officials , . . 74 ''' cannot be introduced in part except by consent 74 If party taking does not introduce, other party may . . 74 Keither party can withhold deposition from the other. 74 Deposition of foreign witness 75 ^' by person other than intended deponent . . 75 NIJ^ETY FOURTH ARTICEE. (Hours of session.) The Article imperative in terms 77 Proceedings not within hours, inoperative 78 Statement of hours in record 78 Motion to adjourn not a "jn'oceeding" 78 NINETY NINTH ARTICLE. (Dismissal of officer.) See DismssAL, I, II 236-242 560 INDEX. WIWETY SECOND ARTIC1.E. (Oath of wit- Page. Form prescribed, how may be varied 75 By usage, oath administered by judge advocate 75 Where judge advocate a witness, president to admin- ister 75 Witness to be sworn but once 75 WIMETY SEVENTH AKTICI.E. (Conline- ment isi pemiteMtiar^'.) Prohibits this i^unishment for purely military offences. 80 Where unauthorized, reviewing olhcer cannot legalize . . 80 Authorized for larceny, &c., though charged under Art. 62 80-81 Meaning of term " penitentiary" 81 What penitentiaries included 81 Status of soldier committed to penitentiary 81 Designation of particular X3enitentiary for execution of sentence 81 Term of confinement at discretion of court 81 Eeference to State, &c., laws on the subject 81 Authority to commit to penitentiary in execution of sentence of sim^^le confinement 81-82 NINETY SIXTH ARTICI.E. (Deatli sem- teaice.) Two thirds need not concur in finding 78-79 Statement in record as to concurrence in sentence 79 Finding necessary to sustain death sentence 79 Court not to designate time or i)lace of execution ; 79 If done, may be disregarded by reviewing officer 79 Day fixed for execution of sentence may be changed . . 79 Euling of Supreme Court, &c., in Coleman's case 79, note. NINETY THIKO AISTICI.E. (Covitmu- ances.) Continuance on account of absence of witness 76, 155 Eight to where witness absent by sux^erior orders ... 76, note. Eeasonable ground shown entitles to some continuance . 76 Effect of imi^roper refusal of continuance 76-77 Eight to continuance where origmal charges amended before trial . . 77 ETOEX. 561 NINETY THIKD ARTICLE-Continued. Page. So, where material amendment allowed by conrt 77 Eiglit to continuance in order to i)rocure counsel . 77 NINTH ARTICIiE. (Captured stores.) Accords with law of nations and of war 4 Authority to dispose of captured property 4-5 Booty rarely awarded to army 5, note. NOLLE PKOSERB::E> and eleventh ARTI- CLE. (Suspend! 99 g^ execution of sentence.) Officer susi)ending should first formally ai:)i)rove sen- tence , 92 If disapproved, nothing to suspend 92 General authority of President under this Article 92 ONE HUNDRED AND FIFTEENTH AR- TICLE. (Authority for courts of inquiry.) Nature of court of inquiry 96, note. Can be ordered only in cases of persons in the army ... 97 564 INDEX. ONE HU]\I>KEI> AWI> FBFTEENTH AR- TICLE— CoMtinMed. Page. Institution of by inferior commanders 97 Assimilation of to grand jury 97 Eight of accused to appear before, &c 97 Proceedings of may be open . . . 97 By usage may entertain challenges . . 97 Cannot XJunish for contemjit 98 ONE HUNOflEO AND FIRST ARTICLE. (SentcMce of siispensioM.) See Suspension 468-471 ONE IIfTNI>KEI> ANI> FOURTEENTH AR- TICLE. (FiirBilsBiing^ copy of record.) When copy may be furnished 95 To whom msLj be furnished 95 Agent apiilying must show authority 95 Ai^plications for copies how made under the Article . . 95 Copies how furnished 95-96 Api^lication for where case not within Article 95, 96 ONE HUNDRED AND FOURTH ARTICLE. (Approval of proceedings.) Construction of term " whole proceedings" 89 Approval to be given, though action of superior re- quired ' 89 Approval to be formal and official 89 Instances of irregular approvals 89 Absence on leave, &c., of commander as affecting au- thority to apj^rove, &c 89-90 Absent commander cannot delegate authority 90 '' Officer commanding for time being" construed 90 Effect of discontinuance or merger of command 90 Authority of colonel commanding department to act under this Article ■. ^ 91, 134 ONE HUNDRED AND NII^ETEENTH AR- TICLE. (Opinion of court of inquiry.) The opinion not a sentence 98 Dissenting opinions by members 98-99 Nature of opinion in general called for 99 May reflect on conduct of parties, witnesses, &c 99 INDEX. 565 ONE HUNDRED AND NINTH ARTICI.E. (Confiriiiatiou siiid execution, g^enerally.) Meaning of term ^'officer commanding for the time Page. beinff" 90 'fe AutLority under of colonel commanding a department . 91 ONE HUNDRED AND SECOND ARTICLE. (Second trial for i^anie ofience.) Meaning of word " tried," as here employed 83 Waiver of objection to second trial 83 Prohibition as extending to minor included offence. . 83 No trial where court without jurisdiction ; 83 Or illegally constituted ; 83 '^ " composed ; S'd " where first attemi)t was a "mistrial" 83-84 Previous trial by civil court not within the Article 84 Apj)roval of reviewing officer not essential to trial .... 84 That first sentence inadequate can not authorize second trial So ONE HUNDRED AMD SIXTH ARTICLE. (Confirmation by President of sentences of €lisniissal.) " Confirmed " synonomous with approved 91 Signature of President not requisite to legal confirma- tion 91 Authentication by Secretary of War sufficient 91 Eecent rulings and present action under this Article - . 91-92 ONE HUNDRED AND THIRD ARTICLE. (Einaitation of prosecutions.^ Application of to cases of desertion 85 When limitation begins to run against deserter So Euling of Attorney General So Action of Congress as to amendment of Article. . .85-86, note. Mere absence not an '^ impediment" SQ When absence may constitute impediment 8G-87 Effect of plea of guilty where limitation has taken effect S(j What held to be '^manifest impediments/' and vice versa 80-87 That offence not discovered not an impediment 87 Allegation and proof of impediment > . . 86, 87 5b() INDEX. ONE HUIV©RED ANB TIISKB ARTICLE— Continued. Page. Arrest iiiiaulliorized after period of limitation 88 Prohibition of Article can not be waived 88 Application of to trials under Arts. 48 and 60 88 '^ " '^ " by inferior courts 88 u u '' investigations by courts of inquiry.. 88 ^' '' '' complaints under Art. 30 88 OWE I1U]VI>REI> AWO TMIRTEEIVTH AR- TICLE. (Forwardifiig proceedi&ig^s of gen- erai courts. An incomj^lete and defective statute 302, note. ONE IIITNBRE® ANn T^WELFTM ARTI- CLE. (Pardon and niiti§^ation.) Reservation of power to President 93 Authority given to commander cannot be delegated . . 93 Pardon cannot be extended to executed sentence 5 93 But exercisable as to any portion of punishment re- maining unexecuted ; , „. 93 Also at any stage of duration of punishment 93 Practice as to remission of sentences of confinement . . 93-94 Commutation — what - 94 Mitigation — what 94 Suspension of sentence not authorized under this Arti- cle 94 OWE IIUWI>RES> AND TWENTY FIRST ARTICLE. (Proceedings of court of in- quiry as evidence. ) Where not admissible on merits 99-100 Admissibility of, to impeach witness - . 1 100 OWE HUIVOREO AWI> Tl^EWTY SEVEPITH ARTICLE. (Disposition of effects of de- ceased oMcers and soldiers.) To what cases the Article intended to apply 100 Authorizes only disposition of certain effects 100 Administration of other effects not to be assumed 100 Function of commander, when fulfilled 100 INDEX. 567 0]\£ HUNDREDTH ARTICLE. (Dismissal for coMraa^dice or fraud.) Page. Meaning of '' cowardice " and '' fraud" 82 Form of sentence . 82 OPINION. Of court of inquiry, need not be unanimous 98-99 ORDER. Disobedience of. (Art. 21.) - . 9-10 Effect of illegal order 9-10, 352-353 General and Special Orders, admissibility of in evi- dence 256-257 Legal effect of orders as issued by Secretary of War . . 350 When order affecting officer takes effect 240, 350-351 Api^lication to of principle of notice 350-351 Nature of notice required to give effect to . . 351 Effect where notice not received by fault of party .... 351 Order as affecting rights to pay, &c 351-352 Notice of order when party a prisoner of war 352 '' " '• of dismissal by telegram 352 Order of superior when a justification to inferior 352-353 ORDER CONVENING COURT MARTIAE. Form — as to accounting for number when less than thirteen detailed 59-60 '' as to accounting for rank of members inferior to accused 61 " as to showing authority of commander 353 " as to so describing as to identify members .... 353 " as to indicating for what trials the court or- dered , 353 Authority to try soldier under order for trial of offi- cers 353-354 ORDER OF PRO.TIUEGATION. Mention of name of President in 354 Eecital of specifications in 354 Issue of not necessary to validity of proceedings 354 Statement in of proceedings on revision 354 As evidence of proceedings stated in 354 568 -INDEX. OB5>NANCE I>EPABTME]\T'. Page. Autliority of Chief of to order court martial 63 Eeturns to Chief, of arms furnished to colleges 174 " for arms furnished under Act of M'ch 3, 1879. 355 "OTHER PEACE." Construction of, as employed in Art. 82 64 P. PARDON. Power of as conferred by Art. 112 93-94 Executive i^ardon, as taking effect on delivery 356 Cannot be granted to deceased person 356 Effect of full pardon in removing disabilities 225, 356 " ^' where punishment in part or wholly executed . 9,237 357 " " in restoring pay forfeited 274, 357 " "■ in removing incidental punishments 225, 358 " '' in discontinuing continuing punishments. . .245, 358 '•'• '' appointment or i)romotion as constructive pardon 358-359 Effect of putting on duty as constructive pardon 358, 359 Pardon on condition, precedent or subsequent 359 Grounds of i>ardon or remission in cases of soldiers . . 359-360 " " '' " " '' " '^ officers.... 360 Pardon of deserters at large . . . , 361 '' " deserters from draft, &c., during late war.. 361 " '' political offenders 357,361 Remission as distinguished from full pardon ... , 356, 426 FAROI.E. Violation of, an offence against the law of war 329 '' '' by prisoner of war 329,393 Eelease on of prisoner of war, effect of 393 PAY ACCOUNT. Signing before due not an offence under Art. 13 5 " Duplicating,'' an offence under Art. 60 , . . 33 Not negotiable paj^er 361 Effect of endorsement of by holder on i^ayment by pay- master 361 INDEX. 569 PAY AlVD AI^LOWA^^CES. Page. Eight to pay of soldier as continuing to delivery of dis- charge 3 Stoppage of, for purposes of reparation under Art. 54, 25 Officer's right to as commencing from acceptance of appointment 106, 120-127,note. Eeappointment with back rank as conferring right to back pay 109 Honorable discharge as fixing rights to pay 233 Authority to reduce pay pending enlistment 251-252 Effect of sentence of forfeiture of pay, &c 271 What pay is 302 Distinguished from allowances 3G2 Eight of as coincident with i)eriod of service 302 A legal right divestible ouly by authority of law 303 l^ot divested or affected by mere misconduct 271 " " by a sentence not expressly forfeiting pay. 271 " '' " a mere order, as an order of dismissal ofofficer 240,351,303 Not divested by mere arrest under charges, or confine- ment, military or civil 303 Not divested by any civil process 304 *^ " " a forfeiture under a previous enlist- ment 303 Of&cer dismissed entitled to pay up to what date 302 " resigning entitled to pay up to what date 302 Forfeiture of pay by operation of statute 302 " '^ ^' '' " ^^ army regulation... 270, 304-305 " on reappointment, of gratuity paid on ijrevi- ous muster out 305-300 Pay cannot be temporarily iHthheld by military order . . 300 Eight to pay of officer ordered to await orders 307 " " allowances of officer so ordered 307, note. Service pay under Sec. 1202, E. S 307 " '' on account of services as medical cadet. . . 307 " " " '' '' " " cadet in Mil. Acad- emy 307, note. Pay of mounted officer 307-308 " '' captain detailed as x^ctg. Asst. Commissary.. . 308 Additional pay on re-enlistment 308-309 570 INDEX. PAY AND AI^IiOT^ANCES— Continued. Page. Pay deposited, as savings , 369 '-'- once rendered, beyond control of military authori- ties 369 Pay found on deserter cannot be taken i^ossession of. . 369 Indirect remission of forfeiture of pay 369 Assignment of soldier's pay prohibited . 369 Order for, distinguished from assignment of 369-370 Pay of insane officer or soldier, how payable 370 Allowances of officer detailed as professor 370 '' " engineer officers, how payable 370 Fuel allowance, right of retired officer to 370, note. ^' " " " officer on vsick leave to 370 " " of officer temporarily absent on duty . 370-371 What allowance of other fuel equivalent to wood al- lowance 370, note. Allowance for quarters, right to of officers on cumula- tive leave 309 Allowance of quarters, right to of officers at posts where there are i)ublic quarters 371 Travel pay, right of soldier to as affected by sentence of forfeiture 371 Pay of soldier not subject to lien of post trader 384 Stoppage of, when authorized 465 Effect of suspension of by sentence 469, 470 FAYMASTEK. Liabihty as disbursing officer under Art. 60 34-36 Prosecution of remedies in case of losses as disbursing officer 229-230 When not liable for paying an amount forfeited by sentence - 274 Eecourse of against endorser of pay account 361 Liability of for delivering i:>ay of soldier to another I)erson 372 Liability of for safe transportation of iniblic funds . . . 475 PAYMASTER'S CI.ERK. A civilian and no part of the army 372 Status of in navy . 372, note. Liability of to military jurisdiction in time of war 48, 372 INDEX. 571 PAYMENT BY MAIL.. Page. At whose risk 372-373 Liability in ease of loss 373 PENITENTIARY. See Ninety Seventh Article 80-82 PENSION. Bight to of soldier disabled when under sentence 373 Honorable discharge not essential to entitle to 373-374 PEONAGE. Ofi'ence of surrendering fugitive peon 374 Law abolishing peonage 374, note. Duty of army in enforcing law 374, note. PERJURY. False swearing before military court as distinguished from . 374^375 How to be charged 375 Before naval courts, law relating to 374, note. General provision in regard lo, of Sec. 5302, B. S 374-375, note. Bule as to proof of, as ai)plied to military cases 375 "PERSONAE SERVICES." Contract for, nature of 187 Bequirement as to bond from contractor for 120 PERSUADINO TO I>ESERT. Natm-e of the ofi'ence. (Art. 51.),, 24 PEACE. Averment of in specification 150-152 PEEA. Introduction of evidence with plea of guilty 203, 375-377 Procedure where i)lea and statement inconsistent . - .377-378 Withdrawal and change of plea 378-370 Special plea in nature of plea in abatement; , 140, 370 Absence of, a waiver of objection 370 Special plea in nature of demurrer 370 When absence of operates as waiver; 370 Special i3lea on account of illegal constitution or com- j)ositiou of court, or want of jurisdiction 370-380 Evidence not to be pleaded 152-153, 380 572 INDEX. PI.EA IN ABATEMENT. Page. Special plea in nature of 149^ 379 F1.EA OF GUIETY. l^ot a waiver of want of jurisdiction 82, 211 Introduction of evidence witk 203, 375-377 P01.I.IN0 OF THE COUKT. Unauthorized in military law 205 POSSE COMITATES. Origin of 380, note. Emi^loyment of military on marshal's posse 113, 380 As affected by legislation of June 8, 1878 113, 380-381 State official not authorized to summon U. S. troops on 112, 381 Military relations of troops serving on 331 Proper conduct of same 381 POST COMMANBEK. When ^' on duty '^ in sense of Art. 38 17 Eelation toward medical officer of post 318 ]^ot to permit post to he asylum for fugitives from justice 381 Authority of as to custody of i)risoners at Alcatraz Island 381-382 Authority of to refer cases to court ordered by supe- rior officer . 154-155, 382 POSTMASTER, Eight of to extra compensation as clerk to military officer .178-179 POST TKAI>EK. Statutes fixing status of 382-383 May now be appointed for any military post 383 Tenure of office of 383 Nature of appointment of 383, note. Amenability of to military jurisdiction 384 Remedy for serious misconduct of 384, 387 Has no lien on soldiers' pay 384-385 Liability of to be taxed for benefit of post fund 385 '' " " pay civil authorities for license to trade. 385-386 " '^ '' taxation,whenonmilitary reservation. 144, 386 INDEX. 573 POST TRADER— Continued. Page. Privilege of to erect buildiDgs on reservation and remove same 38G-387, 403 Eligibility of to Territorial office 387 Authority of to trade with Indians 387 How far can be required to sell particular articles 387 POi;^ ER OF ATTOR]\EY. When operating as assignment of contract 191 '^ not coupled with an interest 388 Effect of word '' irrevocable" in 388 " '^ revocation by constituent 388 PREFERRIIVO OF CHARGE. By whom charges may be preferred 154 To what commander to be prelerred - 154 PRESENTINO FAESE CEAIM. See Sixtieth Akticle 33, 150 PRESIDENT. Authority of to discharge soldiers 3 Oft'euce of disrespect to 7 Authority as to confirmation of sentences of dis- missal 91-92, and note. Authoritj^ as to action on suspended sentences 92 Power of pardon and mitigation 93-94 ^' " appointment an,d promotion 106-109 Authority to employ army for civil purposes 111-115, 292 '^ " make army regulations 116-117, note. " " modify " '' 117-118, note. " " ratify- order of dismissal made by military commander 240 In dismissing by order, cannot divest right to pay 240 Suspension by of writ of habeas corpus 278-280 Authority of to establish military reservations 336, note. " '' " discontinue ^' " ... .337, note. " " '^ convene general courts martial.. 53, 388-389 " " '' ordersame through Secretary of War. 389 " as Reviewing Authority of proceedings of military courts 91, 92, 244, 389-390 Authority as to restoration of dismissed ofiicer . . . 237, 238, 241, 390-391 574 INDEX. PRESIDENT— Contiimed. Page. Authority to retire oEicers of the army . .431-432 " " order sales of military stores 443 As represented generally by the Secretary of War.. 445-446 " a witness in a military case 484 PKESIOaNO OFFICER OF MILITARY COURT. Ko special rank or qualification required for 391 Is simply the senior member for the time , 391 Function of as representative and organ of the court. . 205, 391-392 Special authority under Arts. 52, 53 and 85 .... 391 and note. Equality with other members 392 Authority of over other members 392 Bound by vote of majority of members 392 Cannot adjourn court against vote of majority 392 PRIWCIPAI. MUSICIAI^. Status of 107 Ehgibility of to appointment as 2d Lieutenant 107 PRISONER. Treatment of in confinement ^ 51, 121, 286 Status of under Sec. 1361, K. S 212-214 Discipline of in Military Prison 212 Eight of to abatement of i^unishment for good con- duct : 289,290 PRISONER OF l^AR. When civil employee may be treated as 392 Partisan not entitled to be treated as 392-393 Amenability of for violation of laws of war committed before capture - 393 Disposition of, when guilty of homicide of another pris- oner 393 Violation of parole by 393 Effect of paroling of x^risoners during late war 393-394 Eeleased on parole, what duty may be performed by . . 394 Disposition of when paroled 394 Eights to pay, &c., of officers and soldiers while held as 352, 394 INDEX. 575 PRISOIVER OF TVAR— Continued. Page. Riglits to pay, &c., of officer dismissed while so held. 230, 304 " '^ " ^' " soldier discharged " '' " . . 394 " " " " ^' military prisoners when re- leased on parole 394 Entering service of the enemy by, when justified 395 When to be treated as deserters to enemy 395 PRIVATE PHYSICIAIV. Authority to employ, under par. 1309, A. E 319 Not required to take oath of office 348 PRIVILEGED COMMUI^ICATIOIV. Certain official papers held to be 350 Admissibility of in evidence 350 PROCEEOIWGS AT I.AW AOAIl^ST OFFI- CER, &C. Authority of commander to enjoin in time of war 317 Defence of officers, &c., in civil courts 198, 395, 396 Procedure under Act of June 22, 1870 198, 390-397 Eecourse to Congress for relief from judgment 397 Protection from suit or prosecution on account of acts done during late war 397 PROCIiAMATIOW. Of President suspending writ of habeas corpus 278-279 •^ '' declaring blockade 480, note. " " '' the termination of the war . 480, note. PROFESSOR. Detail of officer as, in civil college 174-175 Allowances of officer so detailed 370 Pay of, at Military Academy 398 PROMOTION. Prohibition of by Act of June 18, 1878 107-108 Act did not affect promotion of lieutenant to captain . . 399 Promotion to captain of assistant surgeon - 108 Effect of promotion of member of court 321 Operation of par. 19, A. E 398 " " '- 20, " and Sec. 1204, E. S 398-399 Promotion as constructive pardon 358-359 ^^ " afiected by sentence of suspension 399, 468 576 INDEX. PKOSECUTOR. Page. As included in the term " accuser or prosecutor." (Art. 72.) 54-56 Except the judge advocate, no official i^rosecutor rec- ognized by law 399 Presence of prosecuting witness during trial 399-400 Examination of as witness 400 PROTESTT. By minority against majority, not to go on record j 400 Nor to be ai)i)ended to record 400 PROVISIONAL. COURT OF I.OUISIAMA. As established in New Orleans in 1831 308, note. Authoritj' of as affirmed by U. S. Supreme Court .. 308, note. PROVOST COURT. Function of in general • 307-308 Exceptional authority of 308 Eulings of courts in regard to 308, note. PROVOST MARSHAI.. As attendant ui)on a court martial 202, note. PURIFICATION BV OFFICER. When constituting a military offence 44, 458 "FUI5I.IC EXIGENCY." Construction of term as used in Sec. 3709, E. S . 185, 186, note. PUBi^IC I.ANBS. Military reservations not a part of 338 PURI.IC PROPERTY. As acquired by capture 4, 139 In military reservation 336-339 " national cemetery 343-C44 Provision of Constitution in regard to disposition of. . 400 Authority to deed land of the U. S. . . 401 " " lease " ^' '' " 401 " " grant any usufructuary interest in 401 Right of way, &c., authority to grant 402-403 Grant of interest in land as distinguished froni license. 403-404 INDEX. 577 PUBL,K:: PKOPEETV— Cowtinued. Page. Authority to dispose of personalty of the U. S 405 '^ ^' purchase laud for the U. S 405 " " accept gift of hmd for the U. S 405-406 " " acquire rights in laud as presumable from Appropriation Acts 405, note. ^' ^' expend money on land purchased for XJ. S. 40G, note. " " purchase, to be strictly construed 406 " *^ acquire land for U. S. by right of eminent domain 406 " of State to grant right of way through mil- itary reservation 406 Determination of conflicting claims to land of U. S. . . 407 Title to land as granted by statute — vesting of same. 407 Eight to buildings erected on land occupied jure belli . 407 Disposition of public property under Sec. 3618, 11. S. 407-408 PUNISHMENT. As distinguished from a rescinding of contract, (by dis- charge of soldier) 3 " " u u removal from office (by dis- missal of officer by order) . 239 " " '^ stoppage 5-6,227 ^ot imposable under Art. 54 , 26 Measure of under Art. i)S ... 28 ^ot imi)osable on soldiers confined in arrest 51 Power of, as vested in inferior courts. (Art. 83.) 65-67 Customary, in case of contempts. (Art. SG.) 70 Eeference to civil statutes, as to measure of 28, 34, 81, 332, 334, 450 'Not imposable on soldiers after discharge 234 '' '^ by order, without trial 451-452, and note. In general — see Sentence and Punishiment 447-453 "PURCHASE." (Of land.) Purport of term as used in Constitution and statutes. 142, note, 405 "PUT IN JEOPARDY." As equivalent to tried . 83 37 D 578 INDEX. QUABTERiTIASTER GENERAL.. Page. Authority of in settlement of claims under Sec. 300 A., E. S 171 QUARTERMASTER STORES. Settlement of claims for payment for 1G9-171 Disposition of as suri^lus material of Q. M. Dept 407-408 Eight to detain for salvage , 444 QUARTERS. Allowance for, as affected by cumulative leave of ab- sence 309 '' "of officer awaiting orders 367, note. " '' " " detailed as professor 370 " '^ " officers at military posts 371 Selection of, as afi'ected by sentence of loss of files 312 " '' " " '^ " " suspension.... 469 QUITCEAIin. Generally given on conveyance of land of U. S 309 QUORUM OF MEMBERS. What number constitutes, in case of court-martial 59 " '^ " a u a military commis- sion , 327 Statement of presence of, in record • . . 414 E. RAM FEEET. Amenability of officers, «&c., of to military jurisdiction . 48-49 RAIVK. Of members of court martial. (Art. 79.) 60 " aids-de-camp of General 103-104 INDEX. 579 RANK.— Continued. Page. As fixed by date of appointment lOG, 410 u u u orcier " '•<' lOG '<• '' <' duration of service under Sec. 1219, E.S.. 410 a u u volunteer service 410 " '' '<- " ^' in Mexican war . - ....410-411 Eestoration of officer to rank as of former date 109 " to rank as entitling to back pay 109 Brevet, effect of 134 Superior, entitles to no privilege on trial 219, 254 Eelative, of assistant surgeons 100 Authority to change date of, after commission 109 READING OF PROCSEDINOS. Accused entitled to be present at 219, 415 Statement of in record 419 REASSEMBLING OF COURT. After being reduced below legal quorum 59 " adjournment without day 103 Statement of in record 415 REBELLION. / Indian war a species of 293 Begiuning and end of late war of 480, note RECAPTURED PROPERTY. Eight to restoration of. 140 Claim for salvage of 140, 444-445 RECOMMENDATION. Of accused to clemency — not a part of the record 411 Capacity of members in signing 411 Cancelling of name of member after signing 411 l^Tot to be lightly made 411 Criticisms of, where ill-considered 411-412 To state grounds on which made 412 Members may make separate 412 RECONSTRUCTION ACTS. Jurisdiction, &c., of military commissions under 332-333 580 INDEX. RECORD. Page. Of field officer's court. (Art. 80.) 62-63 Eight of accused to copy of. (Art. 114.) 95-96 Of previous court, wheu admissible iu evidence 99-100, 255-256 Duty of judge advocate in making 300 Eesponsibility for and control over, of the court. .300, 421-422 Transmission of to reviewing authority . . .. ■ 302 Eecommendation hy members, not a part of 411 To state entire x^roceedings of trial 412-413 Each record to be comx)lete ][)er se. , 413 '' " ^^ " separately made up 413 "■ " '^ contain copy of convening order J ... 413-414 And of other orders relating to composition, &c., of court - . 414 Statement in of assembling and organization of court . 414-415 u u 'i proceeedings on challenges, if any. . .415-416 ^' " ^' swearing of court & judge ad v^ocate. 416-417 " ^' " arraignment and pleas 417 '^ ^^ '' testimonj^ — to be set forth in full . ... 417 " " " objections to testimony and action on same 417 " " as to finding and sentence 417-418 Authentication of proceedings in 418 Action upon, form of 89, 91, 92, 418 Statement in, of proceedings on revision 419 To exhibit the proceedings in the proper order 419 Statement in, as to reading of previous day's proceed- ings 419 " " •' '' hours of assembling and adjourn- ing 419-420 May be printed instead of written , 420 Endorsement of 420 Presumi^tion as to regularity of proceedings of. . .78, 420, 421 Defects in as ground of disapproval 218, 420, 422 ii " '' invalidating i)roceedings . . 420-422 Eulings of civil courts as to defects in proceedings . . 420-421 Effect of loss of, after or before api)roval 421 Approval and adoption of by court, effect of 421-422 Correction of, on revision 440-442 INDEX. 581 RECRUITSl^O FOR ElVEMY. Page. A violatiou of laws of wur 329 REDUCTION IN FIEES. See Loss of files 311-312 REDUCTION TO RANKS. Chief musician not subject to , 156 Forfeiture of pay upon 273-274 Of ofQcer as authorized during late war 422-423 Authority to direct transi'er of a non-comd. officer sen- tenced to 423 " " deprive of warrant a non-comd. officer sentenced to 423 RE-ENEISTMENT. Without a discharge, effect of. (Art. 50) 23-24 Additional pay upon 368-309 REGIMENTAL Ai^D GARRISON COURT. Jurisdiction of under Art. 17 6 Constitution of not affected by concluding i^rovision of Art. 72 56 When superseded by field officer's courts 61, 62 Constitution and comi)osition of. (Aijts. 81 and 82.).. 63-05 Jurisdiction and power of i)uuishment of. (Art. 83). . . 65-67 Not proi)erlj^ to entertain aggravated offences 66-67 A chief musician triable by 156 Authority to detail judge advocate with . 296 REGIITIENTAE COURT. Special function of under Art. 30 15-16 In general see Eegimental and Garrison Courts. REGIITIENTAE STAFF. Appointment of . 110 REGULAR ARMY. Officers of not authorized to try volunteers. (Art. 77.) . 37, 60 Additional aids-de-camp as a part of 104 Tenure of office in 424 As distinguished from volunteers 424, 478 582 INDEX. REGUI.ATIONS. Page. See Akmy Eegulations. REL.IEF. Authority to relieve contractor 193-195 '• '^ '' dismissed officer 237, 238, 241, 390- 391, 478 " " ^^ from forfeiture of pay, &c 274 Extent of, by executive authority 424-425 Authority to indemnify, &c., for an act of the past.. 425 '' " relieve by changing date of appointment. 425 Congress as the fountain of general relief 425 Authority to relieve against consequences of executed sentence ....... 453 REHEVINO THE EWEMF. Offence of. (Art. 45.) . 20-21 REIflARK!^. Authority of court to add with finding or sentence .. 205-206 '^ ^' reviewing officer to make in connection with action , , , . . 437 REMISSION. Of punishment under Art. 112 93-94 Of imprisonment by discharge of soldier pending ex- ecution of sentence - . . 234, 288 Partial of a forfeiture, inoi^erative where indefinite 275 " effect of on right to abatement of sentence by good conduct . 289 Inoperative in case of executed forfeiture by operation of law. 270 u u u u u u u sentence. 274 " u a u f^^y executed sentence 357, 453 Principal grounds for remissions in the army 359-360 Eemission of forfeiture by remission of dishonorable discharge . 369 Effect of remission as distinguished from full i)ardon.356, 426 "REMOVAI. OF DISABIEITV." Nature and effect of in cases of volunteeer officers 426 INDEX. 583 RENT. Page. Claim for, on account of premises occupied without contract 167 " " under Act of July 4, 18G4 - 170 Contracting to pay, in advance or absence of appro- priation 187-188 REPARATION. For injuries to citizens under Art. 54 25-26 REPORTER. Appointment of vested exclusively in judge advocate by Sec. 1203, R. S -.301, 407 Stenographic, to be employed only in important case. . 407 Authority to appoint for court of inquiry 427 Compensation of stenographic 427 Administration of oath to. Form of oath 427-428 From what proceedings to be excluded 172, 428 REPRIJTIAND. Direction as to execution of in sentence 428 Authority of reviewing officer as to form of administer- ing ~ 428 REQUISITION. Under treaty with ^Mexico 259-2G0 By Governor of State for military prisoner under sen- tence 31, 428-429 RESIDENCE. Of parent, as affecting appointment of cadet 136 Military i)erson not incapacitated from acquiring 429 Of officers on active list in general 429 Station of officer as affecting question of 136, 429 Of retired and staff officers, &c 429, 473 Intent of party as determining 429, 473-474 RESIGNATION. Of a military as distinguished from a civil officer 430 Operation of, upon notice of acceptance 430 Effect of revocation of acceptance of, after notice 430 Offer of, when revocable 430-431 Effect of when tendered by insane officer 431 584 INDEX. RESTOKATIOM. Page. Of dismissed officer, how effected ...... 237, 238, 241, 461-4G4 " officer wholly retired 433 " dismissed voluDteer as distinguislied from regular officer 478 REST®I£irVG TO DUTY WITHOUT TKIAI.. Under i^ar. 159, A. R., effect of in case of deserter. . .224-225 RETAINER. Amenability of to military discipline. (Art. 63.) 48 RETAI.IATI01V. For illegal seizure by enemy 305 As an exercise of war power .» 481 RETIBEO LIST. Authority to appoint directly to 109, 433 Who may legally be placed on 433 Placing on by authority of Congress 109, 462, 463 RETIRED OFFICER. Kot eligible as member of court martial 58 Eligibility of to civil office 159 Exception in case of otlfice in a Territory 159 '' " '^ ^' diplomatic and consular office.. 159-160 Detail of as professor in college 174, 175 Eight of to fuel allowance 370, note. a u u serv'ice pay . . 433 '' " " compensation for additional office under IJ.S.., 434 Amenability of to military jurisdiction 433 What sentences not appropriate to status of 433 Liability of to jury duty in U. S. courts , 433 Capacity of to acquire a residence 429 Liability of to taxation by civil authorities 473 RETIREITIEIVT. Of member of court, effect of . 321 Function of Eetiring Board 431 Investigation not affected by limitation of Art. 103 431 ligature of finding of Board 431 INDEX. 585 RETIREinEJVT— Continued. Page. Author! t^^ of to retire for incapacity incurred in volun- teer service 431-432 u u u u u u resulting from drunkenness . . . 432 " Wholly " retiring distinguished from dismissal by order 432 Eight of officer to hearing imor to wholly retiring 432 Pecuniary allowance to officers on being wholly re- tired 432-433 Status as a civilian of person thus retired -, 433 Kestoration of such person to army - . 433 Only commissioned officers of army eligible for retire- ment 433 RJCTflRINC; BOARD. See Eetieement 431-432 RETURNS. Class of contemplated by Art. 8 . . . , 4 For arms furnished to colleges 174 a u " ^' certain officers 355 REVmWII^C} OFFICER. When member of inferior court may become 65 President as, under Articles of War 91, 92, 389-390 Function of, generally 434-435 How authority may be divided 435 Effect of appi'oval by , 435 '<■ '' disapproval by 435-436 Upon disapproval, proceedings not to be transmitted for action by sui)erior 435, 436 Upon disapproval cannot proceed to mitigate or com- mute 436 Need not give reasons for disapproval 436 Cannot himself correct a defective record 437, 442 " add to the punishment 437, 451, 409 Authority of to remark in connection with action 437, 438 " '^ as to having j)roceedings revised and cor- rected 437 To defer to conclusion of court where testimony con- flicting 438 Form of action taken by 89, 438 586 INDEX. REVIEWING OFFICER— Continued. Page. Delegation of authority by 90, 438 Action by, when subject to recall 438-439 Authority of to remit punishment .93, 439 Eeviewing function of, when exhausted 390, 439 Competency of as a witness 483 R£VISFI> STATUTES. Of 1874, a single act of Congress 439 Effect of certificate of Sec. of State as to 439 Operation of laws relating to Army, in 439 Provision in, of ^^ local and temporary character," effect of 439-440 Of 1878, effect of ., 439, note. REVISION. Proceedings of court convened under Sec. 1230, R. S., subject to 243-244 Eecord of procedure ui)on 419 Authority for and object of, gCDcrally . 440 '' to order more than once in same case 440 Form of order re- assembling court for 440 Discretion of the court as to correction, &c .440^ 441 Court must be legally constituted for 441 Judge Advocate to be present on , 441 When accused should be present 441 Law as to taking of testimony on 441 Correction to be the act of the court 441 Proper form of making and recording correction 419, 441 Eeviewiug ofiicer not authorized to correct record. . .437, 442 When revision impracticable 442 REVOCATION. Of order of dismissal, inoperative in law 241 " accei)tance of resignation, effect of 430, note. REIVARD FOR ARREST OF ©ESERTER. See Desektek 22G-228 RIGHT OF WAV. Over land of U. S., authority to grant 401, 402 ^' military reservation '' " '^ 338, 402 " " " '^ of State as to 400 INDEX, 58'; s. SAFE COI\DUCT. Page. See Flag of Truce 209 SAJLE OF ARMS, &c., BY SOLDIERS. Existing law in regard to 443 Making of seizures under tlie statutes 443 SAEE OF MIEITARY STORES. Under Sec. 1241, E. S 443 SAEVAGE, Exceptions to rule that public X)roperty liable to 444 Liability to of supplies en route to army in war 444 On recaptured property 140, 444 ^' property of citizen seized and used in war 444-445 " enemy's property captured by civilians 445 SA VINOS OF SOEDEERS. Disposition of under Sec. 1305, E. S 369 SEAE. As required for bond of disbursing officer 12G-127 " "■ •' " " contractor. 129 SECOI^D ARTICLE. (Oath of enlistment.) Oath not essential to enlistment 1 " as evidence of enlistment . . v 1 Form of oath in use as distinguished from that in Article 1 SECOIVD TRIAE. In the same case, prohibition of. (Art. 102.) 83-85 When may be granted '60, 344-345 SECRETARY OF ^SVAR. As to his authority to discharge soldiers under Art. 4. 3 " " " " " authenticate executive action on sentences of dismissal 91 588 INDEX. SECRETARY OF i;¥AR— Continued. Page. As to liis authority to furnish copies of proceedings of courts martial 95-96 " " " " <'<■ x)roiuulgate Army Eegulations, 117, note. u a u u " release surety on bond 128,129 u " " " " reoi3en claims 164-165 " " " '^ " appropriate money to pay claims. 165 u a " " ^' allow claims for unliquidated damages 166-167 it ii ii " '« allow claims for compensation for property taken for public use . 168 " " ii " " make gratuitous issues of cloth- ing to soldiers 173-174 « ii ii " ^^ issue arms to colleges under Sec. 1225, R. S 174 a ii ii ivi«ioii and l>rig:ade courts.) Page. '^ Division " and '' separate brigade" defined 56 Commands lield equivalent to a '^separate brigade". . 56-57 <^ District " commands as separate brigades 57-58 Application of G. O. 251 of 1864 57-58 Oi^eration of Article during late war - . - 59 SIONAt. COISPS. Authority of chief of to order court martial 63 Olficial report of member of, as evidence 256, note. Extra duty pay of enlisted men of 260 As to telegraph line to Station of at Fort Whipple 340 Enlisted force of, additional to the established comple- ment of army 454 SIXTIETM AKT1CI.E. (Fraud, eantoezzle- mcMt, &c.) Dupliciiting pay rolls, when chargeable under . 33 Presenting claim for forfeited pay, when not charge- able , 33 Various kinds of fraud held chargeable under 33 Embezzlement — motive of not material ....... . . 33-34 Embezzlements defined in Rev. Sts., as offences under. 34 Application of statutory provisions to military cases . . 34 Embezzlement under Sec. 5488, E. S 34 Not necessary to prove intent to defraud 34-35 Embezzlement under Sec. 5490, E. S 35 " '' ^' 5495,E.S .35-36 Offence of misappropriation, nature of . . . . . ... 36 Form of charge under par. 9 of Article 36 Liability to trial after separation from the service 37 Application of statute of limitations 37 Larceny as an offence under this Article 37 Composition of court for trial of volunteers, &c., under . 37 SIXTY FIFTH AKTICE.E. (BreacCa of close arrest.) Meaning of word '■'• crime." 50 What necessar3- to constitute offence 50 A breach of arrest not "close," not within Article 50 " " '' " without confinement to quarters, how chargeable , 50 INDEX. 593 SIXTY FIFTH AKTICLE-Continucd. Page. Acts held not offences under 50-51 Ko defence that accused innocent of offence for which arrested 51 Defence if put on duty after aiTcst 51 Provision of the Article as to punishment 51 SIXTY FIRST. (Unbecoming^ conduct.) Conduct unbecoming an officer and a gentleman, de- fined 37-38, 39 Various acts held to constitute 38-11 When neglect of pecuniary obligations amounts to . . . 39-40 Kequirement of Article as to sentence 41 Special finding authorized under 2G5 SIXTY SECOND ARTICI.E. (Conduct prej- udicial to g^ood order and military dis- cipline.) Meaning of word " crimes " 42 Indirect charging of capital crimes under, not author- ized 42 What crimes cognizable under 42-43 Crimes and offences against civihans, when chargeable under 43 Exception in time of war 43 Larcejiy as an offence under .42, 43-44 Unauthorized publications by ofiicers, as offences un- der , 44 Various disorders and neglects held chargeable under . 44-45 " acts held not so chargeable . , 45-46 Form of charge under 46-47 Faulty forms of charge under 47 SIXTY SIXTH ARTICI.E. (Confinement of soldiers in arrest.) Extent of restraint authorized 51 Imi^osition of punishment not warranted 51 SIXTY THIRD ARTICI.E. (Jurisdiction over civilians in viar.) Amenability imposed — extent of 48 Retainers and camp followers — how punished in gene- ral 48 38 D 594 INDEX. SIXTY THIRD ARTICI.E:— Continued. Page. ^ Persons serving with armies in tlie field,^ amenability of 48 Classes of such i)ersons held amenable during late war . 48-49 What necessary to render party amenable 48-49 Civil employees in Indian wars, amenability of 49 Jurisdiction to be exercised with caution in Indian war , 49 Article has no application in time of peace 49 Term of the jurisdiction, how limited , 49 Clerks of quartermasters, &c., held not amenable in peace 49-50 So held of sui)erintendents of national cemeteries 50 SOLDIERS' HOME. As to amenability to military jurisdiction of inmates of 214, 216, (notes.) u u forfeiture of pay accruing to 272 SOLITARY CONFINEMENT. Not to exceed limit prescribed by par. 895, A. E 454 SPECIAL PLEA. See Plea 379-380 SPECIFICATION. In general — see Charge 145-153 General rules governing finding on 262-265 SPY. Amenability of civilian as, under Sec. 1343, E. S 455 Gist of offence of 455 Cases illustrating nature of offence of 455-456 Must be taken in flagrante delicto 456 STAFF OFFICER. Eligibility as member of court martial 58 Delegation of authority to, as to ordering court mar- tial 54 " " '' " " " relieving members . . 59 ^' " " a a u action on proceed- ings 90 Status of as aid-de-camp 103-104 '' '' on '^General Staff" 276-277 Liability of to taxation as resident 429 INDEX. 595 STATE. Page. Protection of under Art. IV, Sec. 4, of Constitution . .111-112 Courts of — authority of to enjoin military officers 1G3 " ^^ '^ " as to service of process on mili- tary persons 1G1-1G2 Cannot restrict powers of general government . . 1G3 Courts of — authority of as to discharge of soldiers on habeas corpus . 250, note, 280-282 Authority of to tax military persons 472-174 STATEMENT. Procedure, where statement inconsistent with plea.. 377-378 Privilege of accused to present 457 Kot evidence, and not to contain matter of e\idence . . 301, 457 Consideration of, by court 457 As to admission of facts by 457 Extent of freedom allowable in 457 Prosecution entitled to closing 457-458 Waiver of right of 458 Offence of publication of improper statement by officer . 458 STATUTE. As distinguished from regulation IIG, and notes. Giving jurisdiction to court martial, to be strictly con- strued 212, note. Construction of —as to Articles of war in general 458 " " as to meaning of word "may" 458-451) " " *' " " '' " "authorized". 450 " " " affected by debates in Congress . . 459 Authority to depart from, where mandator}^ 4G0 Construction of certain statutes for restoration of dis- missed officers 4G1-4G4 STOPPAOE. As distinguished from punishment under Art. 17 o-6 u ii a u a a 54 25 Of reward in case of deserter 227 As distinguished from fine 2G7 Of pay, when authorized 4G5 " " or bounty, for liability incurred on previous en- hstment 4G5-4GG 596 INDEX. SUBSISTENCE STORES. Page. Charge for embezzlement of 36 Claims for under Sec. 300 B., R. S 169-171 Eight to detain for salvage 444: Liability of officers' mess for 466 Ten per cent, when to be added to cost of 466-467 SUMMONS. For witness, right of accused to 483, 484 " " service of 484, 485 " " to precede an attachment 489 SUNDAY. Authority of court martial to hold session on 205 " " '^ '^ " find and sentence on.... 205 Effect of enlistment on 251 " " convening order dated on 353 SUPERINTENDENT OF NATIONAE CEM- ETERY. Amenability of to military jurisdiction 50 Liability of to work on roads 144-145, note. Authority of to arrest trespassers, «&c 344 Disposition of in case of misconduct 344 "SUPERIOR OFFICER." See Twenty First Article 8-10 SUPEIINUITIERARY. (Under Act of July 15, 1870.) Status of officer re-appointed after discharge as 365-366 Eights of officer upon transfer to supernumerary list. .467-468 SURETY. Obligation of 127-130 Officer of army as 127-128 Married woman as 128 Member of obligor's family as 129 Eelease of by acts of obligor 128 ^' " by Secretary of War 128, 129 '' ^' '' delay of suit against 128 Justification of 128-131 To bond of disbursing officer, &c 126-129 " " '' contractor ..... 129 '' " '' college under Sec. 1225, E. S , . . . 130-131 INDEX. 597 SVROEOIV. Page. See Medical Officer 318 SIJSPENDINO EXECUTION OF SEN- TENCE. Under Art. Ill 92 During good behavior 94 SUSPENSION OF TTRIT OF HABEAS CORPUS. See Habeas Corpus 278-280 SUSPENSION. (Sentence of.) Absence pending, as affecting right to " cumulative'' leave 310 Compared with sentence of loss of Hies 312 Suspension from rank, nature of 4G8 " " '' as affecting office 408, 471 " " " amenability of officer under . . . 468 " " ^' effect of on right of promotion. 468 " " " " " " '' toriseinfiles.468-469 " " " " '^ " " of precedence 469 " " <^ '' ^' ^' '^ ^' selection of quarters 469 " does not involve status of arrest 469 " " " '' lossofpay 469 " of pay, effect of 470 " " " does not affect allowances ... 470 " effect of where imposed by way of commu- tation 470 " as affected by order to resume command or duty 470 " from the service, meaning of . . . 470 " " duty, meaning of 471 " " the Military xVcademy, effect of 471 How and from what date suspension takes effect 471 Not a recognized punishment for a non-commissioned officer 471 Status of officer at end of term of suspension 471 SWEARINO THE COURT, Ac. As to swearing a field officer's court . 62 " " " the members of a general, &c., court . . 67-68 598 INDEX. SWEARING THE COURT, &c. -Continued. Page. As to swearing the judge advocate as witness .... 75 a board of investigation 124 a a a survey 125 ^' civilian clerk of court martial 172 an interpreter " " " 295 a reporter " " " 427-428 Statement of in record. 416-417, 421, note. T. TAX, Liability to, of persons at place under exclusive juris- diction of U. S 144 Levy of upon an enemy jitre belli 306 Liability of post trader to 386 Authority of State to tax officer or soldier, on account of his pay, &c 472 ^' '•'• " u a iustrumentalities of the gen- eral government 472 Taxation of officers as residents 429, 473, 474 ^' " retired officers 429, 473 Liability of U. S. to i^ay taxes as owner of real estate. . 476 TEEEGRAOT. Evidence of sending or receipt of . . . „ 257 Effect of notice of order communicated by . ,. . 352 TENURE. Of officer of regular army 104, 424 <-* office where no term fixed 383 TERRITORT. Of Alaska, citizenship of foreigners in 104 *' " military authority in 104-105 Employment of troops for, under Art. TV, Sec. 4, of the Constitution , — 112 Eligibility of army officer to civil office in 159 Execution of process of courts of in cases of military persons 162-163 INDEX. 599 TERRITORY— Continued. Page. Origin and authority of courts of 162-1G3 Indian territory, disposition of intruders upon ...... 114, 292 Meaning of word "territory" in Art. lY, Sec. 2, § 2 of Constitution 336, note. TESTIMONY. See Evidence 253-259 TEXAS. Jurisdiction of court martial in, for offence committed across tlie Eio Grande 208 Extradition by or through military commander in . . .259-200 THIRD ARTICLE. (Probibition as to en- listments.) Effect of ui^on validity of enlistments of the prohibited classes 2 Construction of word "knowingly" 2 " " " "intoxicated" 2 THIRTEENTH ARTICLE. (Signing of false certificate.) No defence that accused Relieved certificate to be true. 5 Signing pay account before due not an offence under. . 5 THIRTIETH ARTICLE. (Redress for soldiers.) Not in conflict with Art. 83 15 Nature of the proceedings authorized 15 Complaint not affected by statute of limitations ; 15 But to be made within reasonable time 15 Who may summon the court 15 Complaint against person no longer in service not cog- nizable 15-16 " " officer for unauthorized act of serv- ant, not cognizable 16 THIRTY EIGHTH ARTICLE. (Drunken- ness on duty.) Significance of term '^ found drunk" illustrated 16 Drunkenness i^reventing soldier from going on duty not chargeable under Article 16 600 INDEX. THIRTY EIGHTH AUTICI^E— Continued, Page. Officer reporting for duty drank held chargeable 16 Effect of becoming drunk when absent from duty 17 Drunkenness on duty in case of a post commander ... 17 " '' " " '^ "" medical officer 17 Nature of the drunkenness constituting the offence ... 17 Distinctions in drunkenness, by findings of court, not favored 17-18 How the drunkenness may be induced 18 Drunkenness off duty, how to be charged 18 Article mandatory as to sentence 18 THIISTY NIJ^TH ARTICEE. (Offences toy sentinels.) Circumstances not constituting a defence to charge under Article; 18 But admissible in evidence in mitigation of jDunish- ment 18 Eesponsibility of officer for imposition of excessive guard duty 18-19 TIE VOTE. Effect of on a finding 266,447 '•'• " '' an objection to testimony 479 u u jji general „ , 479 TIME. Averment of in specification 150-152 TRANSPORTATION OF PUBEIC FUNBS. Liability of officer charged with 475 TRAVEE FAY. Of discharged soldier, as affected by sentence of for- feiture 371 TREATY. Of cession by Eussia of Alaska 104 With Indian tribe, disposition of persons violating . . . 114 Effect of as to '' Indian country" . . 291-292 Between Cherokee nation and confederate government . 292 Of extradition with Mexico 259-260 Legal effect of under Art. YI § 2 of Constitution . .338, note. INDEX. 601 TRIAL. Page. Proliibition of second for same offence. (Art. 102.) . . 83-85 Defence of accused upon 218-220 Provision for in case of of&cer dismissed by order. . .242-244 New, when authorized 344-345 "TRIED," Meaning of in Art. 102 83 T\FENTIETI1 ARTICL.E. (Disrespect to commanding^ officer.) Construction of term ^' commanding officer" 8, 9 Application of Article to soldiers on detached service . 8 TTFEI^TY FIFTH ARTICLE. (Provoking: conduct.) Authorizes measures of prevention and restraint only . 13 TlFEf^TY FIRST ARTICEE. (Violence to, and disobedience of, superior.) Ofl'ering violence, &c., proof of 8-9 Where death caused, statement of in specification 9 " Superior" distinguished from commanding officer. . . 9 Disobedience of su]3erior — proof that officer known to be such 9 ^on-compliance with order of non-commissioned offi- cer, how to be charged 9 The order or '^ command" to be shown to have been *aawful." 9 Presumi)tion in favor of legality of military orders 9 Inferior protected unless order i^alpably illegal . 9-10, 352, 353 Eisk in disobeying orders as unlawful 10 Instances of orders held not " lawful." 10, and note. Nature of the order contemplated by Article . 10 Liability for disobedience of orders when on leave of absence 10 Offence under this Article as distinguished from mu- tiny 11 TTFENTY FOURTH ARTICEE. (Frays, &c.) The Article an application of common law principles . 13, note. Authority to arrest affrayers 13, note. " " prevent breaches of thex)eace 13, note. 602 INDEX. TH^ENTT SECOND ARTICEE. (inutiny.) Page. Mutiny defined. The distinguishing intent 11 Offences under Article not necessarily joint 11 Combination as evidence of intent 11 Mere disorders not chargeable under this Article 11 Good faith of accused as affecting charge of mutiny . . 11-12 Opposition to illegal order not mutiny 12 Mutiny as extenuated by oppressive acts of superior . . 12-13 Ti;VEWTY SIXTH ARTICEE. (CSialleng^e to duel.) Definition of challenge 14 Intent how shown 14 Duelling not chargeable as a specific offence 14 u. UNAUTHORIZED PUBLICATIONS. By officer as a military offence 44, 458 UNITED STATES. Form of conveyance of land by 409 Liability of for taxes as land owner 476 UNLIQUIDATED DAMACtES. Authority to allow claims for 166-467 USAGE. See Custom and Usage of the service. VARIANCE. Between averment and proof as to time of offence 152 In name of accused, when material 477 How to be corrected 477 Effect if material variance not corrected 477 Variance in middle name 477 VETEKAN VOI.UNTEER. Eight to bounty of, as affected by promotion 133 INDEX. . 603 VIOL.ATIO]V OF I.AW OF TTAR. Page. By breacli of rule of non intercourse 304, 305 As cognizable by military commission 328 Instances of as tried by during late war 328-329 Liability for by i^risoner of war 393 Breach of rule of non-intercourse as distinguished from ofience of spy 455-456 VOLUNTEERS. Nature of engagement of during late war illustrated . . 12 Amenability to military jurisdiction after muster out . 37, note. Eegular officers not eligible for trial of 37, GO Eight of Certain officers of to extra pay 2G1 Service in as entitlirg to relative rank in army 410 "Eemoval of disability" in cases of officers of 426 As distinguished from Militia and from Eegulars . .00, 424, 478 A part of the Army of the United States 478 Eelief of dismissed officer of 478 TOTE. Statements of in record held to be in violation of oath of members A ... 68-69 Eflect of tie upon a finding 266, 479 Of each member of equal efi'ect 392 Presiding officer has no casting 392 Of majority, effect and sufficiency of 266, 392, 400, 479 " minority by way of protest, effect of 400 Voting on sentence, approved mode of 447 Obligation of members to vote a sentence 447 Tie vote, effect of in general ...... 479 w. TTAIVER. Of objection to second trial for same offence 83 •' operation of limitation of Art. 103 88 " charge, by putting on duty 101, 358 " defence, by an escaj^ing by accused on trial 205 " objection to charge by omission to plead specially. 379 " right to hearing by officer wholly retired 432 u a u make statement 458 604 INDEX. 1¥AR. (The late.) Page. As terminated by proclamations of President .... 480 Beginning' and end of as fixed by Supreme Court 480 ^WAR POIVER. Of the United States 480-481 Assum lotion of by State authorities . .> . - 481 ITASHINGTON ARSENAl.. Authority of District Commissioners over 339 "WHOI.I.Y" RETIRINO. Distinguished from dismissal by order . , 432 Eight to hearing of officer before being wholly retired . 432 Pay of officer upon being wholly retired 432-433 Kestoration of officer thus retired 433 IFIFE. Ill treatment of as ground of charge under Art. 61.. 41 Of accused, admissibility of as witness before court mar- tial 482 u u u u u u u court of inquiry .. 482 " prosecuting witness, admissibility of as witness 482 TVITWESS. Eefusal of to testify as an offence under Art. 62 44 " " ^' " "a contempt. (Art. 86.) 69 ^^ " " attend " " " ( " " ) 69 DeiDosition of when admissible ^ 73-75 " '' by whom may be taken 74, 75 Oath of — how form may be varied 75 " " by whom administered 75 " " to be but once taken on a trial 75 Impeachment of by record of previous testimony .... 100 Status of accomplice admitted as 101-102 Credibility of accomi)lice admitted at 257 Testimony of when sick, how may be taken 103 Eight of to exemx)tion from arrest 120-121 Authority of board of investigation to administer oath to 124 " " " " survey to administer oath to. 125 INDEX. 605 1¥ITNESS— Continued. Page. Effect of naming on list accompanying charge 155 That not on list no objection to introduction of 155 Authority of court to have summoned 202 Authority of court to cause arrest of for perjury 201 Examination of 254, 255 Testimony of, to have weight where pertinent 254 Effect of appearance and manner of, under examina- tion 254, 438 Procedure where insanity developed by 294-295 Prosecuting, privilege of; 399-400 " generally to be first examined 400 General rules governing competency of 481 Accused when admissible as 258, 482 " mode of examination of 258,482 " wife of, admissibility as 482 Wife of prosecuting witness, admissibility as 482 Indian, competency as 482 Member of court, competency as . . . 482-483 " " " introduction of, when not advisable- 483 Judge Advocate, competency as 483 " " how examined as 301 Eeviewing officer, competency as 483 Introduction of unexpected, as ground for continuance . 483 Incompetency of on ground of insanity 294, 483 Eight of accused to have summons issued for 483-484 Deposition, when to be resorted to 484 How testimony to be taken of high officials 484 Summons for witness issuable anywhere in U. S 484-485 " how to be served 485 '^ expense of service of 485 Privilege of witness to modify testimony 485 Kule as to separating witnesses before testifying 485 Witness not authorized to discharge himself . 485-486* " " " " determine whether his testi- mony material 485 Privilege of to refuse to give criminating answer 480 Consequence of unreasonable refusal by 480 Legal fees of civilian witness, what and how paid 486-487 Compensation of military witnesses for attending be- fore civil courts 487, note. 606 INDEX. l¥ITWf:SS— Continued. Page. Eight to fees, of civilian employees of U. S 487 " " " " '■'• giving deposition 487 Judge Advocate's certificate of attendance, witness en- titled to. 487 '^ " " '' " effect of as evidence. 487 Eight to fees as affected by issue of summons 487-488 " ii i' not acquired by mere voluntary attend- ance o , 488 " *' " " affected by a refusal to testify 488 " <' '^ " '' ^' having testified falsely. 488 What period may be covered by certificate 488 Eecourse for compensation for further detention 488 Claim of witness for damages 488-489 Authority of retiring board to summon witness 489 Fees of witness for attendance before retiring board . . . 489 Witness not entitled to fees for attendance at prelim- inary investigation 489 Attachment, authority of judge advocate to issue 489 '^ under what circumstances issuable 489 " not issuable to compel witness to give dep- osition 489 " form of, in general 489-490 " issuable any whither in United States 490 " cannot properly be directed to a U. S. Marshal. 490 " to whom in general to be directed for service 490 " execution of — oijinion of Attorney Gen- eral 490, note. " " '^ —directions in G. O. 93 of 1868 490, note. British law as to attachment of military witnesses . 490, note. Objection to similar provision in our law 490, note. Authority to punish attached witness, as for contempt. 491 WRECK. Authority to remove as obstruction to commerce 290, 291 T U ^^^J .' uu 41 s -^!8883 ^