'^.V cp^-^'^''%> cp^o^;;:^^ cp^.^.,;;:^^ cp^^^^^l^ ^^0^ ; .^ °- %.*^ •^' % % ^^^''^^f^^^ '^^''^mL^^^ ^^''^^< ^° ^''' 35 Q^ o .s^^- S ,^^^ Pi ,^^ ^^ ■0_, ^ 0. % .^\^ .^ xi> %. = Q^ *^, . ^ '^-..^^ /^^\ % .^^ .S A. ''..%"' c?^.--::''',% c«\^;.;;'^% ^^^:^i^^% ^''^^^i. Ho. % ^""^i^k--^ ^''^:^i;:'^% ^^^'.:^'S> ^ o \. ..^ *1 %> =.' cp^ >-'.>, ^^0^ /...., c <^ 9^ V ^ ^ ■> ^ -%, V> ^ t - ^ ^ ' <•> r lO isi » *<> y t- Y (UMI'ILKD J{Y 0()Lo:nel \v. AyIINTlIU()l^ ASSISTANT JLI)(4K-AI)V0<;ATK GENKKAL. KE VISED EBITIOX (INCLUI)IX(; OI'TXTONS TO JANl'AKY 1, 1!)01), liV MA.IOR CHARLES McCLUKE, .IlI>m July 25, 1884, to January 3, 1895. PREFACE. The last edition of this work was issued in 181;>5. Since that time many new and important questions have arisen and have been referred to the Judge-Advoeate-General's Office. For the purpose of incor- porating the opinions on tliese questions, as well as to verify and, where necessarj", revise the syllabi of the last edition, omitting- such as are not applicable to existing conditions, it has been deemed advisable to issue this revised edition. While the text does not include opinions subsequent to January 1, 1901, necessary additions to the footnotes have been made to cover the time the work hlis been passing through the press. Washington, D. C, April 30, 1901. The references or citations in the text refer to the records of the Bureau, consisting of permanent folios, press books, and record cards. The volumes of the permanent folios are designated in Roman numer- als, those of the press books in Arabic, and the cards by number. The month and year printed in italics after a citation refer to the time when the opinion was giv(Mi. C N T E N T S. A. Title. Page. Articles of War — Index to 1 First Article 3 Second Article 3 Third Article 3 Fourth Article 3 Fifth Article 5 Sixth Article 5 Seventh Article (> Eighth Article 6 Ninth Article 6 Tenth Article 7 Eleventh Article 7 Twelfth Article 7 Thirteenth Article 7 Fourteenth Article 8 Fifteenth Article 8 Sixteenth Article 8 Seventeenth Article 8 Eighteenth Article - - - - 10 Nineteenth Article 10 Twentieth Article 10 Twenty-lirst Article - - - - 11 Twenty-second Article 11 Twenty-third Article 16 Twenty-fourth Article 16 Twentieth-fifth Article 16 Twenty-sixth Article 17 Twenty-seventh Article 17 Twenty-eighth Article 18 Twenty-ninth Article 18 VH VIII CONTENTS. Title. Articles of War — Continued. i'"ge. Thirtieth Article IS Thirty-tirst Article 20 Thirty-second Article 20 Thirty -third Article 20 Thirty -fourth Article 20 Thirty-tifth Article 21 Thirty-sixth Article 21 Thirty-seventh Article 21 Thirty -eighth Article 21 Thirty-ninth Article 23 Fortieth Article 24 Forty-tirst Article 2-4 Forty-second Article 24 Forty-third Article 25 Forty-fourth Article 25 Forty-fifth Article 25 Forty-sixth Article 26 Fortj'-seventh Article 27 Forty-eighth Article 27 Forty-ninth Article 29 Fiftieth Article 29 Fifty -first Article 30 Fiftv-second Article - _ _ 31 Fifty-third Article 31 Fifty-fourth Article . 31 Fifty -fifth Article 33 Fifty-sixth Article 33 Fift3'-seventh Article 33 Fifty -eighth Article 33 Fif tj'-ninth Article 35 Sixtieth Article 39 Sixty-first Article 43 Sixty-second Article 48 Sixty-third Article 66 Sixty-fourth Article 58 Sixty-fifth Article 58 Sixty-sixth Artfcle 59 Sixty -seventh Article 59 Sixty -eighth Article - 59 Sixty-ninth Article 60 Seventieth Article 60 CONTENTS. IX Title. Akticles of War — Continued. ]>age. Seventy -first Article 00 Seventy-second Article 01 Seventy-third Article 04 Seventj^-f ourtb Article 07 Seventj^-fif th Article 07 Seventy-sixth Article 68 Seventy-seventh Article 69 Seventy-eighth Article 09 Seventy-ninth Article 09 Eightieth Article 70 Eighty-first Article 70 Eighty-second Article 71 Eighty-third Article 7^ Eightj'-f ourth Article - 73 Eighty-fifth Article : 75 Eighty-sixth Article 75 Eighty-seventh Article 70 Eighty-eighth Article 70 Eighty-ninth Article 80 Ninetieth Article 80 Ninety-first Article 80 Ninety-second Article 83 Ninety-third Article 8-4 Ninety-fourth Article 85 Ninety-fifth Article 80 Ninety-sixth Article 87 Ninety-seventh Article 87 Ninety-eighth Article 90 Ninety-ninth Article 90 One hundredth Article 90 One hundred and first Article 90 One hundred and second Article 91 One hundred and third Article 93 One hundred and fourth Article 95 One hundred and fifth Article 98 One hundred and sixth Article 98 One hundred and seventh Article 99 One hundred and eighth Article 99 One hundred and ninth Article 99 One hundred and tenth Article 1* '• * One hundred and eleventh Article iO( > X CONTENTS.. Title. Articles of War — Continued. Page. One hundred and twelfth Article 100 One hundred and thirteenth Article 104 One hundred and fourteenth Article 104 One hundred and fifteenth Article 105 One hundred and .sixteenth Article 106 One hundred and seventeenth Article 106 One hundred and eighteenth Article 107 One hundred and nineteenth Article 107 One hundred and twentieth Article - - 108 One hundred and twenty-first Article 108 One hundred and twenty -second Article 108 One hundred and twenty-third Article 109 One hundred and twenty-fourth Article 109 One hundred and twenty-fifth Article 109 One hundred and twenty -sixth Article 109 One hundred and twenty-seventh Article 109 One hundred and twenty-eighth Article 110 Absence Without Leave 110 Accomplice 111 Accountability of Officer 111 "Acting Assistant " or ' ' Contract Surgeon " 112 Adjournment . 114 AlD-DE-CAMP 115 Alaska 116 Alien 116 Appeal -' 117 Appointment 118 Appropriation 125 Army — Employment of, for Civil Purposes 136 Army Regulations 140 Arrest — Military 143 Arrest — By the Civil Authorities 145 Arrest — Of Civilians by the Military 146 Artificial Limbs 147 Assistant Surgeon 148 B. Bail -- 148 Board of Investigation 148 Board of Survey 149 Bond — Of Disbursing Officer, etc - - . 150 CONTENTS. XI Title. Page. Bond — Of Contractor or Bidder 156 Bond — Of College 159 Bond — Of States, etc 163 Bond — Of Surety Company 164 Bounty 165 Brevet Rank 166 Bridge 167 Burglary 177 €. Cadet 177 Captured Property 181 Certificate of Merit 183 Cession of Jurisdiction 185 Charge 194 Chief Musician 205 Citizenship 206 Civil Suit or Process, etc 206 Claim 213 Clerk, for Court Martial- 226 Clerk, of War Department 226 Clerk, Miscellaneous 228 Clothing Allowance 229 College, &c 232 Commissary Sergeant 234 Company Commander 234 Compensation— For Extra Services 235 Compensation — For Property Taken for Public use 236 Contract 237 Copyright 277 Counsel — In Civil Proceedings 278 Counsel — To Assist a Judge-Advocate 280 Counsel — For the Accused 281 Court Martial— Authority and Function 283 Court ]\Iartial — Jurisdiction 290 D. Deed 297 Defence 298 Deposits 299 Desertion 299 Disbursing Officer 316 XII CONTENTS. Title. ^'=^"'^'- Discharge ^l-^ Disciplinary Punishment or Repression 332 Dismissal — By Sentence 333 Dismissal — By Order of the President 336 Dismissal — By Order: Trial in case of 3-iO Disqualification 34:2 Draft 343 Drunkenness 344 Eight-Hour Law 345 Eminent Domain 348 Engineer Corps or Officer 348 Enlistment 349 Evidence 356 Examination 304 Extradition 364 Extra Duty Pay 365 Extra Pay — of Volunteers 369 F. Final Statement 369 Finding 370 Fine 375 Flag of Truce 376 Foreign Service 377 Forfeiture — By Operation of Law 377 Forfeiture — By Sentence 377 Forgery 384 Fraudu'lent Enlistment 384 Funds from Savings 387 Furlough 388 Gambling 389 (t aunishment 389 General Staff 390 H. Habeas Corpus - - 391 Holiday — Pay for 395 Hospital Corps 395 Hot Springs Hospital 397 CONTENTS. XIII I. Title. Page. Imprisoxment or Confinement 398 Improvement of Rivers and Harbors 405 Indian Country 408 Indian Soldier or Scout 411 Indian War 411 Insanity 412 Interpreter 413 J. Judge-Advocate 413 Judge-Advocate General 421 1.. Land 423 Larceny 424 Law of War 424 Lease 431 Leave of Absenci; 433 License 435 Line of Duty 442 Loss OF Rank or Files 446 M. Manslaughter 448 Marriage . 449 Martial Law . : 450 Maximum Punishment 453 Medal of Honor 455 Medical Officer 456 Member of Court - 457 Mileage - 460 Military Commission — Origin, Constitution, Procedure, &c 462 Military Commission — Jurisdiction . _ . . 464 Military Commission — Sentence 469 Military Offence 69 Military Prison 470 Military Reservation 471 Militia - . . .' 477 Murder 484 MusTEu-iN.- 484 Muster-out 485 XrV ' Ct)NTENTS. Title. Page. National Cemetery 490 Navigation 493 New Trial 500 Nolle Prosequi ^ 501 Noncommissioned Officer 501 O. Oath — Authority to Administer 501 Oath — Of Office 503 Office 504 Officer 512 Officer's Servant 513 Official Papers 513 Order— In General 515 Order — Convening a Court-Martial 520 Order — Of Promulgation 520 Ordnance Department -, 521 P. Pardon 522 Patent 528 Pay Account 530 Pay and Allowances 530 Paymaster's Clerk 548 Payment 549 Penalty Envelope 549 Perjury 551 Plea 552 Post Commander 556 Post Exchange or Canteen 557 Post Quartermaster-Sergeant 561 Post Trader - - 561 Power of Attorney 567 President — Authority to Convene General Courts- Martial 568 President — Authority over the Proceedings and Sen- tences OF Courts-Martial 568 President — Authority to Restore to The Army. 569 PRESiDiN(i Officer of the Court — 5T0 Previous Convictions 571 Prisoner < )f War - 572 CONTENTS. XV Title. ■ Page. Professor of the Military Academy 675 Promotion 5T5 Prosecutor 678 Protest 679 Public Money 579 Public Printing 581 Public Property . . . - . 581 R. Railroad Company 592 Rank 593 Recommendation . 595 Record of Court-Martial 597 Record of Service 607 Reduction to the Ranks — Of Commissioned Officer 608 Reduction to the Ranks — Of Noncommissioned Officer.. 608 Reenlistment 609 Regular Army 610 Relief 611 Remission 611 Removal of Disability 612 Reporter 613 Reprimand 614 Requisition . 614 Residence . 615 Resignation 616 Retirement 618 Reviewing Authority 626 Revised Statutes 632 Revision 633 Right of Way 635 River Commissions 638 S. Sale, etc., of Arms, etc., by Soldiers 639 Sale of Condemned Stores 610 Sale of Intoxicants 612 Salvage 613 Secretary of War 611 Sentence and Punishment — in general 649 Sentinel 655 Soldiers' Home 656 XVI CONTENTS. Title. ■ I'age. Soldiers' Home — State 060 Soldiers' Home — National Volunteers 661 Solitary Confinement 662 Spy m'2 Statement of Accused 663 Statute — Construction of 664 Statute or Bill — To Restore Dismissed Officers 667 Stoppage . . 670 Subsistence Stores - 67-4 Summary Court 675 Supernumerary List 678 Suspension 678 T. Tax 682 Territory . 687 Triai 687 r. United States Commissioner 688 V. Variance 688 Volunteers 689 Vote of the Court 694 W. War 694 War Power . 695 Witness 695 Appendices: A — Remarks on Regulations 703 B — Use of Arniv in Aid of Civil Power 759 THE ARTICLES OF AYAR. Article. 1. Officers shall subscribe these articles. 2. Articles to be read to recruits. 3. Officers making unlawful enlist- ments. 4. Discharges. 5. Mustering persons not soldiers. 6. Taking money on n^ustering. 7. Returns of regiments, etc. 8. False returns. 9. Captured stores secured for public service. 10. Accountability for arms, etc. 11. Furloughs. 12. Musters. 13. False certificates. 14. False muster. 15. Allowing military stores to be dam- aged. 16. Wasting ammunition. 17. Losing or spoiling horses, accouter- ments, etc. 18. Commanders not to be interested in sale of victuals, etc. 19. Disrespectful words against the Presi- dent, etc. 20. Disrespect toward coniinanding ofti- cer. 21. Striking a superior officer. 22. Mutiny. 23. Failing to resist mutiny. 24. Quarrels and frays. 25. Reproachful or provoking speeches. 26. Challenges to tight duels. 27. Allowing persons to go out and tight; seconds and promoters. 28. Upbraiding another for refusing chal- lenge. 29. Wrongs to officers, redress of. 30. Wrongs to soldiers, redress of. 31. Lying out of quarters. 32. Soldiers absent without leave. Article. 33. Absent from parade without leave. 34. One mile from camp without leave. 35. Failing to retire at retreat. 36. Hiring duty. 37. Conniving at hiring duty. 38. Drunk on duty. 39. Sentinel sleeping on post. 40. Quitting guard, etc., without leave. 41. False alarms. Misbehavior before the enemy, cow- ardice, etc. Compelling a surrender. Disclosing watchword. Relieving the enemy. Corresponding with the enemy Desertion. Deserter shall serve full term. Desertion by resignation. Enlisting in other regiment without discharge. Advising to desert. Misconduct at divine service. Profane oaths. Officers to keep good order in their commands. Waste or spoil and destruction of property without orders. Violence to jiersons bringing provi- sions. Forcing a safeguard. Certain crimes during rebellion. 59. Offenders to be delivered up to civil magistrates. Certain kinds of frauds against the United States. Conduct unbecoming an officer and gentleman. Crimes and disorders to prejudice of military discipline. Retainers of camp. All troops sul>ject to Articles of War. 1 56. 57. 58. 60 61 <)1 10iK»G-Ol- -1 ARTICLES OF WAP.. Article. 65. Arrest of officers accused of crimes. 66. Soldiers accused of crimes. 67. Receiving i)risoners. 68. Eeport of prisoners. 69. Releasing prisoner without autliority; escapes. 70. Duration of continement. 71. Copy of charges and time of trial. 72. "Who may appoint general cnurts- niartial. 73. Commanders of divisions and sepa- rate brigades may ajipoint in time (if war. 74. Judge-advocate. 75. INIembers of general cmirts-martial. 76. When requisite number not at a post. 77. Regular officers, on what cotirts may sit. 78. ^Marine and Regular Army officers associated on courts. 79. Officers triable l)y general courts- martial. 80. Field officers' courts. 81 . Regimental courts. 82. Garrison courts. 83. Jurisdiction of inferior courts. 84. Oath of members of courts-martial. 85. Oath of Judge-Advocate. 86. Contempts of court. 87. Behavior of members. 88. Challenges by prisoner. 89. Prisoner standing mute. 90. Judge-Advocate, prosecutor, and counsel for prisoner. 91. Depositions. 92. Oath of witness. 93. Continuances. . 94. Hours of sitting. 95. Order of voting. 96. Sentence of deatli. 97. Penitentiaries. 98. Flogging. 99. Discharge and dismissal of officers. 100. Publication of officers cashiered for cowardice or fraud. 101. Suspension of officers' pay. .Vrticle. 102. No person tried twice for same of- fence. 103. Limitation (if time of j>rosecution. 104. Apjiroval of sentence l)y officer or- dering court. 105. C'onfirmation of death sentence. ]()(). Confirmation of dismissals in lime of peace. 107. Dismissal by division or lirigade courts. 108. General otiicers, ,«entences resjiect- ing. 109. Confirmation liy officer ordering court. 110. Confirmation of field (^)fficers' sen- tences. 111. Suspension of sentence of death or dismissal. 112. Pardon and mitigation of sentences. 113. Proceedings forwarded to Judge- Advocate-General. 114. Party entitled to a coi)y. 115. Courts of inquiry, how ordered. 116. Members of court of inquiry. 117. Oaths of members and recorder of court of inquiry. 118. AVitnesses before courts of in(iuiry. 119. Opinion, when given by. 120. Authentication of proceedings of court of inquiry. 121. Proceedings of court of inquiry used as evidence. 122. Command when different corps hap- pen to join. 123. Regular and volunteer officers on same footing as to rank, etc. 124. Rank of militia officers on duty with officer of regular or volun- teer forces. 125. Deceased officers' effects. 126. Deceased soldiers' effects. 127. Effects of deceased officers and sol- diers to be accounted for. 1 28. Articles of War to be published once in six months to every regiment, etc. A. ARTICLES OF WAR. Section 1342, R. S. The armies of the United States shall he governed by the fol- lowing rules and articles. The word oliicer, as used therein, shall l)e understood to designate commissioned officers, the word soldier shall be understood to include non- commissioned officers, musicians, artificers, and privates, and other enlisted men, and the convictions mentioned therein shall be understood to be convictions by court-martial. FIRST ARTICLE. Every officer now in the Army of the United States shall, within six months from the passing of this act, and every officer hereafter appointed shall, before he enters upon the duties of his office, subscribe tliese rules and articles. SECOND ARTICLE. These rules and articles shall l)e read to every enlisted man at the time of, or within six days after, his enlistment, and he shall thereupon take an oath or affirma- tion, in the following form: "I, A. B., do solemnly swear (or affirm) that I will bear true faith and allegiance to the United States of America; that I will serve them hon- estly and faithfully against all their enemies whomsoever; and that I will obey the orders of the President of the United States, and the orders of the officers appointed over me, according to the rules and articles of war." This oath may he taken before any commissioned officer of the Army. Sek ENLISTMENT. THIRD ARTICLE. Every officer who knowingly enlists or uiusters into the military service any minor over the age of sixteen years Avithout the written consent of his parents or guardians, or any minor under the age of sixteen years, or any insane or intoxicated person, or any deserter from the military or naval service of the United States, or any person who has been convicted of any infamous criminal offense, shall, upon conviction, be dismissed from the service, or suffer such other punishment as a court-martial may direct. See enlistment. FOURTH ARTICLE. No enlisted man, duly sworn, shall be discharged from the service without a dis- charge in writing, signed by a field-officer of the regiment to which he belongs, or 4 ARTICLES OF WAR. [4 by the commanding officer, when no lield-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 President, the Secretary of War, the commanding officer of a department, or by sentence of a general court-martial. '- sek discharge. ^The 4th Article of War prescribes that "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 he l)elongs, or l)y the commanding officer when no field officer is present," &c. In the corresponding Article (the 11th) of the Articles of War of 1806 the language was: "After a non-commissioned officer or soldier shall have ])een duly enlisted and sworn, he shall not be dismissed the t^ervice without a discharge in writing; and no discharge granted to him shall be sufficient which is not signed ]:»y a field officer of the regiment to which he belongs or commanding officer when no field officer of the regiment is present," &c. Tlie Article of 1806 was almost word for word a repetition of Article 2 of Section III of the Articles of 1776, as the latter was of Article 2 of Section III of the British Articles of 1774, frona Avhich the American Articles were copied. Among the offences made punishable by the British Mutiny Act of 1774 is found a soldier's listing him- self "in any other regiment, troop, or company, without a discharge produced, in writing, from the colonel, or, in his absence, the field officer commanding in chief the regiment, troop, or company in which he last served as a listed soldier — " which will be recognized as relating to the same subject with our jiresent 50th (formerly 22d) Article of War. This provision ot the Mutiny Act can be traced back to 1716, when it appeared in the following words: " Or being a soldier actually listed in any regiment shall list himself into any other regiment without a discharge from the first regiment." In 1717 it was: " C)r being a soldier actually listed in any regiment shall list privately in another without discharge." The Article of War at this time (1717) was as fol- lows : "No Non-commission Officer, or Soldier, shall leave his Troop or Company, and inlist himself in any other Regiment, *Troop, or Company, without a Discharge from the Commandhig Officer of the Regiment in which he last served under Pain of being reputed a Deserter, and suffering Death for it, or such other Punishment as a Court-Martial shall inflict. "And in case any C)fficer shall knowingly receive, or entertain, any such Non-com- mission Officer or Soldier; ujion Proof made thereof before a General Court-Martial, he shall l)e cashiered: "Nor shall any Discharge granted to any Non-commission Officer, or Soldier be allowed t., 1848; do. 64, 107, id., 1862. And see also Lamar v. Browne, 2 Otto, 187, 195, in regard to the same principle as illustrated by the Captured and Abandoned Proi)erty Act of :\larch 12, 1863. * Worthy r. Kinamon, mpra. 9-13] ARTICLES OF WAR. 7 from the enemy, becoming upon capture the property of the United States, Congress, which, h}" the Constitution,^ is exclusively vested with the power to dispose of the public property, as well as to make rules concerning captures on land and water, can alone authorize the 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 chargeaV)le with a military offence.'^ II, 41, Fehruary^ 1863. TENTH ARTICLE. Every officer commanding a troop, battery, or company, is charged with the arms, accoutrements, ammunition, clothing, or other military stores belonging to his com- mand, and is accountable to his colonel in case of their being lost, spoiled, or dam- aged otherwise than by unavoidable accident, or on actual service. ELEVENTH ARTICLE. Every officer commanding a regiment or an independent troop, battery, or com- pany, not in the field, may, when actually quartered with such command, grant furloughs to the enlisted men, in such numbers and for such time as he shall deem consistent with the good of the service. Every officer commanding a regiment, or an independent troop, battery, or company, in the field, may grant furloughs not exceed- ing thirty days at one time, to iive per cent of the enlisted men, for good conduct in the line of duty, but subject to the approval of the commander of the forces of which said enlisted men form a part. Every company officer of a regiment, commanding any troop, battery, or comj^any not in the field, or commanding in any garrison, fort, post, or barrack, may, in the absence of his field officer, grant furloughs to the enlisted men, for a time not exceeding twenty days in six months, and not to more than two persons to be absent at the same time. TWELFTH ARTICLE. At every muster of a regiment, troop, battery, or company, the commanding officer thereof shall give to the mustering officer certificates, signed by himself, stating how long absent officers have been absent and the reasons of their absence. And the commanding officer of every troop, battery, or company shall give like certificates, stating how long absent noncommissioned officers and private soldiers have been absent and the reasons of their absence. Such reasons and time of absence shall be inserted in the muster rolls opposite the names of the respective absent officers and soldiers, and the certificates, together Avith the muster rolls, shall be transmitted by the mustering officer to the Department of War as speedily as the distance of the place and nmster will admit. THIRTEENTH ARTICLE. Every officer who signs a false certificate, relating to the alisence or pay of an officer or soldier, shall be dismissed from the service. 4. Ildd.^ 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 ^Art. I, Sec. 8, cl. 11; Art. IV, Sec. 3, par. 2. * See, in this connection, § 5313, Rev. Sts. 8 ARTICLES OF WAK. [18-1 7 constitute an offence of the class intended to be made punishal)le by this Article/ XXXIII, 333, Sej?temher, 1872. FOURTEENTH ARTICLE. Any officer who knowingly makes a false muster of man or horse, or who signs, or directs, or allows the signing of any nnister roll, knowing the same to contain a false muster, shall, upon proof thereof 1)y two witnesses, before a court-martial, he dis- missed from the service, and shall thereby be disabled to hold any office or employ- ment in the service of the United States. FIFTEENTH ARTICLE. Any officer who, willfully or through neglect, suffers U) be lost, spoiled, or dam- aged, any military stores belonging to the United States, shall make good the loss or damage, and be dismissed from the service. SIXTEENTH ARTICLE. Any enlisted man who sells, or willfully or through neglect wastes the ammunition delivered out to him, shall be punished as a court-martial may direct. SEVENTEENTH ARTICLE. Any soldier who sells, or through neglect loses or spoils, his horse, arms, clothing, or accoutrements shall be punished as a court-martial may adjudge, subject to such limitation as may be prescribed by the President by virtue of the power vested in him. 5. This Article is quite independent of the regulations contained in Art. LX, A. R., relating to boards of surve} . The latter pass upon questions oi pecuniary responsibility for the loss, &c., of public prop- ert3^ The court martial, under this Article, simply imposes j^^mish- menf.^ XXXVII, 352, Fehniary, 1876; 59, 196, April, 1893. 6. The description, ' ^ his clothing," refers to articles thereof which are regularly issued to the soldier for his use in the service and with the safe-keeping of which he is charged. His property in them is quali- fied by the trust that he cannot dispose of them while he is in the military service, and can only use them for military purposes. ■' 59, 196, April -1893. 7. Only three offences are made punishable h\ this article — selling, through neglect losing, and through neglect spoiling, the property named therein. Any other form of wrongful disposition should be ' See G. C. M. 0. 28, War Dept., 1872. But as to whether it is a sufficient defence to a charge under this Article that the accused, in the absence of due inquiry, believed the certificate to be true, see Samuel, 298, and O'Brien, 802. ''■ Where a trhd is Iiad, the ])roceedings of u l)()ard of survey, already ordered in the same case, will n(jt be competent evidence to prove the fact of the loss, &c., charged. G. C. M. (). 45, Dept. of the Rlissouri, 1S77; do. 1-'), IVpt. of Texas, IS77. ^See ruling of reviewing oliicei' in (J. (). P)5, Dej^t. of the Ivist, LStiH; and see also do. 31, Dept. of the South, 1877; G. C. M. U. 15, Dept. of Texas, 1880; all sustain the text. 17] ARTICLES OF WAR. 9 made the subject of a charge under Article (>») or Artick' i]'2. 26, 238, Ainjusf, ISS.S. 8. Improper dispositions of property in the charge and use of sol- diers, other than the dispositions indicated in this article will in general proper!}' be charged under Article 62/ Likewise the selling, through neglect losing &c., ])j soldiers, of property issued to them, l)ut not mentioned in Article 17, should be charged under Article 62. Thus /it'I(I that a selling or losing of the following* articles was not punish- able under Article 17, but under Article 62, viz., sheets, pillows, pillow-cases, mattress covers, shelter tent, barrack bag, great-coat- strap, tin cup, spoon, knife, fork, meat ration can, cartridges. 17, 119, Maf/, 1SS7; 21, 151, Decemher, 1SS7 ; 52, 215^, Fehnianj, 1892. 9. That an accused did ''Unlawfully dispose of.'' or ''otherwise unlawfully dispose of" clothing, arms, &c. is not a proper form of allegation in a specification or charge under this article. 58, 139, Fehruai'y, 1S9S; 65, 381, July, 1S9J^. 10. A charge or specification under this article should not be expressed in the alternative — as that the accused "did sell oi' through neglect lose" &c. The selling, through neglect losing, and through neglect spoiling are distinct offenses and should be so charged." 28, 35, 110, Xoveml)ei\ 1888; 29, 162, January, 1889; 30, 83, Fehruary, 1889; 51, 313, January, 1892; 58, 139, Fehruary, 189S; 62, 119, Decem- he>\ 1893; 65, 381, July. 1891 11. Clothing issued and charged to a soldier is not now (as it was formerl}') regarded as remaining the property of the United States. It is considered as becoming, upon issue, the property of the soldier, although his use of it is, for purposes of discipline, qualified and restricted. Thus he commits a military offence by disposing of it as specified in this Article, though the United States may suffer no loss. 59, 196, April, 1893. 12. The present Seventeenth Article (as amended by the act of Jul}' 27, 1892) does not authorize a stoppage or forfeiture of pay to reimburse the United States. The stoppage which was enjoined by the old form of the Article is dropped entirel}- from the present statute. The latter provides for punishment only — does not provide any means of reim])ursing the appropriation out of which the lost, &c., property was paid for, or of repairing the loss or damage as such. So, held, that a sentence, upon a conviction under this Article, which adjudged a stoppage of pay '" to reimburse the United States for the value of the ^ As the pawning of a revolver. G. C. M. O. 77, Dept. of the Missouri, 1874. So- the gambling away of clothing. G. C. M. O. 41, Dept. of Texas, 1873. So, the spoil, ing by a Ijugler of'his bugle. "G. C. M. O. 36, War Dept., 1876. ^ See § 111, p. 18, Court-Martial Manual of 1901. 10 ARTICLES OF WAK. [17-20 clothing alienated," was unauthorized and inoperative. 59, liMj, Ajrril., 1803; Cards 781^. DeGemher. 189.'^; Kxis, F>^>ni,i,'ij, ISO-',. EIGHTEENTH ARTICLE. Any officer commanding in any garrison, fort, or barracks of the United States who, for his private advantage, lays any duty or imposition upon, or is interested in, the sale of any victuals, liquors, or other necessaries of life, brought into such garrison, fort, or barracks, for the use of the soldiers, shall be dismissed from the service. NINETEENTH ARTICLE. Any officer who lises 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 offends shall be punished as a court-martial may direct. 13. When a trial of an officer or soldier has been resorted to under this Article, it has usuall}' been on account of the use of '"contemptu- ous or disrespectful words against the President,"' or the go\'ernment mainly as represented by the President. The deliberate emploj^ment of denunciatory or contumelious language in regard to the President, whether spoken in paV)lic, or published, orconve3'ed in a communication designed to l)e made public, has, in repeated cases, })een made the sub- ject 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 carrving on the civil war, — a juncture when a peculiar obedience and deference were due, on the part of the subordinate, to the President as executive and com- mander-in-chief, — was in general punished b\ a sentence of dismissal. V, 491, Deceinhtr, 1863: XX, 510, April, 1.866. On the other hand, it was held that adverse criticisms of the acts of the President, occurring \\\ poVd'icdl discussions, and which, though characterized by intemperate language, were not apparently intended to be disrespectful to the Presi- dent personally or to his office, or to excite animosity against him, were not in general to be regarded as properly exposing officers or soldiers to trial under this Article. To seek indeed for ground of offence in such discussions would ordinarily be inquisitorial and beneath the dignity of the (Tovernmcnit. V, 191, Deceinher, 1863. TWENTIETH ARTICLE. Any officer or soldier who Ijehaves himself with disrespect toward his command- ing officer shall be punished as a court-martial may direct. 'See cases in G. C. M. O. 4.3, War Dept., 1863; G. O. 171, Army of the Potomac, 1862; do. 2.3, id., 1863; do. 52, Middle Dept, 1863; do. 119, Dept. of the Ohio, 1863; do. 33, Dept. of the Gulf, 1863; do. 68, Dept. of Washiuirton, 1864; do. 86, Northern Dept., 1864; do. 1, Id., 1865; do. 29, Dept. of N. C, 1865. 20, 21] ARTICLES OF WAR. 11 14. The disrespect here indicated may consist in acts or words ;^ and the particnhir acts or words relied upon as constitutino- the ofi'ence should properly I)e set forth in substance in the speciiicatiou.'~ It must be shown in evidence under the charge that the officer offended against was the "commanding 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 battal- ion was temporarily detached from a regiment and placed under the orders of the commander of ;i portion of the army distinct from that in which the main part of the regiment was included, Iteld that it was the commander of this portion who was the couunanding officer of the detachment; and that the use by an officer of such detachment of dis- respectful language in reference to the regimental commander (who had remained with and in command of the main liody of the regiment) was properly chargeable not under this Article, l)ut rather under the (32(b XVIII, 407, Noremhti', 1865. 15. Held that disrespectful language used in i-egard to his captain by a soldier, when detached from his compan}" and serving at a hospital, to the surgeon in charge of which he had been ordered to report for duty, was an offence cognizable by court martial, not under this Article butunder Art. »>2. VI, 53, March. ISGJ^. TWENTY-FIRST ARTICLE. Anj' officer or soldier who, on any j^retense whatsoever, strikes his superior officer, or draws or lifts up any weapon, or offers any violence against him, being in the exe- tution of his office, or disobeys any lawful command of his superior officer, shall suffer death, or such other punishment as a court-martial may direct. 16. The term ojficcr (''superior officer'") in this as in all other arti- cles of war means commissioned officer.* IX, 90, May., ISOJ^. 17. To justify a conviction of the capital offence of offering violence against a superior officer, it should be made to appear in evidence that the accused knew or l^elieved that the person assaulted was in fact an officer in the army and was his ''superior" in rank.^ XXIX,. -185, December, 1869. 18. Under a charge of a violation of this Article, in offering violence to a superior officer, it should be alleged and proved that the officer iG. O. 44, Dept. of Dakota, 1872. And see G. C. M. O. 28, War Dept., 1875; G. 0. 47, Dept. of the Platte, 1870. ■^G. C. M. O. 35, Dept. of the JNIissouri, 1872. ^G. 0.53, Dept. of Dakota, 1871. ; *See the provision, introductory to the Articles (if War, of Sec. 1342, Rev. Sts., in which it is specified that " the word officer, as used therein, shall be understood to desitrnate conunissioned officers." -'See G. O. 34, Dept. of Virginia, 1863. 12 ARTICLES OF WAR. [21 as&aulted was at the time "in the execution of his office.'' I, 462, Decemher, 1862; IX, 90, Mmj, 186 J^. 19. In charging a striking or doing of violence to a superior officer under this Article, it is allowable, in a case where the assault was fatal, to add in the specification, "thereby causing his death," as indicating the measure of violence employed. XXIX, 485, Deceml)e7\ 1869. 20. The ''superior officer" in the sense of this Article, need not necessarily have been the commanding officer of the accused at the time of the offence. The article is thus broader than Art. 20, which relates only to an offence against a "commanding officer." XIX, 218, December^ 1865. 21. A non-compliance ])y a soldier with an order emanating from a non-commissioned officer, or offering violence to the latter, is not an offence under this Article, 1)ut one to be charged, in general, under the n2d. XI, 191, March, 1865; IX, 90, Ifay, 1861^. 22. Under a charge of a disobedience of the order of a superior officer in violation of this Article, it should be alleged, and should appear from the evidence introduced, that the order or "command" w^as "lawful." XXVII, 188, e7«n?/ary, 1869. An officer or soldier is not punishable under this Article for disobeying an unlavifnl order, XXVI, 603, June^ 1868. But the order of a proper superior is to be presumed to be lawful, and should be obeyed, where it is not clearly and obviousl}^ in contravention of law. Unless the illegality is unquestionable, he should obey first, and seek redress, if entitled to any. afterwards. A military inferior in refusing or failing to comply 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 responsi- bility and at his own risk.^ XXVI. 256, Decemher, 1867. 23. To justify, from a military point of view, a military inferior in disobeying the order of a superior the order must be one requiring something to be done wdiich is palpably a breach of law and a crime or an injury to a third person, or is of a serious character (not involv- ing unimportant consequences onl}^) and, if done, would not be susceptible of being righted. An order requiring the performance of a military duty or act cannot l)e disol)eyed with impunity unless it has one of these characters. If not triable under the 21st Article such dis- obedience may be tried under the 62d. In the Cedarquist case (Card 97, July., 189.'i), the Acting Judge- Advocate (xeneral said: "There could be no more dangerous principle in the government of the Army than that each soldier should determine for himself whether an order requiring a military dut}' to be performed is neces- 1 See § 1853, j)0)8, 171; United States v. Borden, 1 Sprague, 374, 376. 22] ARTICLES OF WAR. 15 quently been confused, viz: those punishable I)}' the 21st Article, as also those which, under the name of "mutinous conduct," are merely forms of violation of Art. 62. The offences made punisha])le by this Article are not necessarilv '" agg-regate." or joint offences.' 26,281, jSe2JteiiJje)\ 1887. Among them is the heglnnincj or caiming of a mutiny — which may be committed by a single person. In general, however, the offence here charged will ])e 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 individual soldier or officer, unaccompanied b}- the intent above indicated, is irregular and improper.^ Such an act should in general be charged under Art. 20, 21, or 62. XXIX, 571, January, 1870. XXXVIII, 199, July, 1876. 32. Soldiers cannot properly be charged with the offence of joining in a mutiny under this Article, where their act consists in refusing, in combination, to compl}' with an imlainfaJ order. Thus where a detach- ment of volunteer soldiers, who, under and b}" virtue of acts of Con- gress specially authorizing the enlistment of volunteers for the purpose of the suppression 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 the}" were to be employed solely for this purpose, entered into enlistments expressed in terms to ho- for theivar, and after doing faithful service during the war, and just before the legal end of the war, }>ut when it was practically terminated, and when the volun- teer organizations were being mustered out as no longer required for the prosecution 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 lighting Indians, wholly unconnected as allies or otherwise with the recent enem}"; and thereupon refused, together, to comply with such orders, — JieJd that they were not chargeable with mutiny. While by the strict letter of their contracts the}' were subject to be employed upon any military service up to the last day of their terms of enlist- ment, the public acts and history of the time made it perfectly clear that this enlistment was entered into for the particular purpose and in contemplation of the particular service above indicated, and to treat the parties as bound to another and distinct service, and liable to capi- tal punishment if they refuse to perform it, was technical, unjust, and in substance illegal. XLII, 524, March., 1880. 1 Samuel, 254, 257; G. O. 77, WarDept., 1837; do. 10, Dept. of the Missouri, 1863. ■■'See G. 0. 7, War Dept., 1848; do. 115, Dept. of Wasiiington, 1865; G. C. :\I. O. 73, Dept. of the IMinHouri, 1873. And compare United States r. Smith, 1 Mason, 147. United States v. Kelly, 4 Wash., 528; United States v. Thompson, 1 Sumner, 168, 171; 16 ARTICLES OF WAR. [22-25 33. In a case where a brief mutiny among certain soldiers of a colored regiment was clearly provoked by inexcusable violence on the part of their officer; the outbreak not having been premeditated, 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, 04, Odolx i\ 1S67. Similarly advised in the cases of sentences of long terms of imprisonment imposed upon sundry colored soldiers, who (without previous purpose of revolt) had been provoked into momentary nuitinous conduct b}' the recklessness of their officer in tiring upon them, and wounding several, in order to suppress certain insubordination which might ajaparently have been quelled by ordinary methods.' XXV, 51, 75, lOO, Augast-Novemher, 1867. TWENTY-THIRD ARTICLE. Any officer or soldier who, being present at any mutiny or sedition, does not use his utmost endeavor to suppress the same, or having knowledge of any intended mutiny or sedition, does not, without delay, give information thereof to his com- manding officer, shall suffer death, or such other punishment as a court-martial may direct. TWENTY-FOURTH ARTICLE.^ All officers, of what condition soever, have 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 take part in the same, until their proper superior officer is acquainted therewith. And whosoever, being so ordered, refuses to obey such officer or non-coramissioned officer, or draws a weapon upon him, shall be punished as a court-martial may direct. TWENTY-FIFTH ARTICLE. No 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 pardon of the party offended, in the presence of his commanding officer. 34. This article confers no jurisdiction or power to punish on courts 'Compare cases in G. O. 12, War Dept., 1855; do. 104, Id., 1863; G. C. M. O. 50, Hdqrs. of Army, 1867. ^ It is a principle of the common law that anv In'stander mav and should arrest an affrayer. 1 Hawkins, P. C, c. 63, s. 11; Timothy r. Simpson,' 1 C. INI. & K. 762, 765; Phillips?'. Trull, 11 Johns, 486,487. And that an officer or soldier, by entering the military service, does not cease to V)e a citizen, and as a citizen is authorized and bound to i>ut a .stop to a breach of the peace committed in his presence, has been specifically held by the authorities. Burdett r. Abbott, 4 Taunt., 449; Bowyer, Com. on Const. L. of Eng., 449; Sinnnons §§ 1096-1100. This article is thus an application of an established common law doctrine to the relations of the military service. See its application illustrated in the following General Orders: G. O. 4, War D?pt., 1843; do. 63, Dept. of the Tennessee, 1863: do. 104, Dept. of the Missouri, 1863; do. 52, Dept. of the South, 1871; do. 92, id., 1872. 25-27] ARTICLES OF WAR. 17 martial, but merely authorizes the taking of certain measures of pre- vention and restraint by commanding officers; /. e., measures prevent- ive of serious disorders such as are indicated in the two following articles relating to duels/ XXVIII, 650, Jwie, 1869. TWENTY-SIXTH ARTICLE. No officer or soldier shall send a challenge to another officer or soldier to fight a duel, or accept a challenge so sent. Any officer who so offends shall be dismissed from the service. Any soldier who so offends shall suffer such corporal punishment as a court-martial maj' direct. 35. To establish that a challenge was sent, there must appear to have been communicated by one party to the other a deliberate invi- tation in terms or in substance to engage in a personal combat with deadl}^ weapons, with a view of obtaining 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 chal- lenged XXXIX, 247, Octoher, 1877. On the other hand, though the language employed be couched in ambiguous terms, with a view to the evasion of the legal consequences, yet if the intention to invite to a duel is reasonably to be implied, — and, ordinaril}^ notwithstanding the stilted and obscure verbiage employed, this intent is quite transpar- ent, — a challenge will be deemed to have been given. And the inten- tion of the message, where doubtful upon its face, may ])e illustrated in evidence by proof of the circumstances under which it was sent, and especiall}^ of the previous relations of the parties, the contents of other communications between them on the same suV)ject, &c.^ And techni- cal words in an alleged challenge may be explained by a reference to the so-called dueling code.* TWENTY-SEVENTH ARTICLE. Any officer or noncommissioned officer, commanding a guard, who, knowingly and willingly, suffers any person to go forth to light a duel shall be punished as a ^ Compare Samuel, 372. 2 Compare the definition in 2 Wharton, Cr. L. §§ 2674-2679. ^ On the general subject of challenges, and the question what constitutes a chal- lenge, see the principal cases of the sending of challenges in our service, as pub- lished in G. 0. 64, A. G. O., 1827; do. 39, 41, *(/., 1835; do. 2, War Dept., 1858; do. 330, /(/., 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 Ten- nessee, 1864. And compare Commonwealth i\ Levy, 2 Wheeler, Cr. C. 245; Do. v. Tibbs, 1 Dana, 524; Do. r. Hart, 6 J. J. Marsh, 119; State v. Tavlor, 1 S. C, 108; Do. v. Strickland, 2 Nott & McCord, 181; Ivey v. State, 12 Ala., 27f ; Aulger v. People, 34 Ills., 486; 2 Bishop, Cr. L., § 314; Samuel, 384-387. * State V. Gibbons, 1 South., 51. It may be noted that our Articles of War, unlike the British, -fail to make punishable, as a specific military offence, the engaging in a duel. Such an act, therefore, would, as such, be in general chargeable onlv under Art. 62. 1690()— 01 2 18 ARTICLES OF WAR. [27-30 challenger; and all seconds or promoters of duels, and carriers of challenges to fight duels, shall be deemed principals, and punished accordingly. It shall be the duty of any officer commanding an army, regiment, troop, battery, company, post, or detachment, who knows or has reason to believe that a challenge has been given or accepted by any officer or enlisteecome drunk, but that he shall be ''\found drunk'' on duty.^ XXXI, 324, A2)ril, 1871. 44. A charge of drunkenness on dutv, (drill,) held not sustained where the part}^ was found drunk, not at or during the drill, but at the hour appointed for the drill,»which, however, by reason of his drunkenness, he did not enter upon or attend. The charge should properly have been laid under Art. 62. XXXIX, 226, October, 1877. 45. An oflicer reporting in person drunk, upon his arrival at a post, to the commander of which he had been ordered to report, held charge- able 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, NoveuJ>ei\ 1875. 46. But where an officer, after being speciall}^ ordered to remain ^ Note the emphatic order of the President in regard to violations of this Article, published in G. O. 104, Hdqrs. of Army, 1877. ^See cases in G. O. 11, Dept. of Louisiana, 1869; G. C. M. O., 113, Dept. of the Missouri, 1873. 22 AKTICLES OF WAR. [38 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 drunkenness on duty under this Article, but was properly charg-eable with drunkenness in violation of the 62d Article, disobedience of orders, and unauthorized absence. XXXVIII, 425, January^ 1877. 47. A post commander, while present and exercising command 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 found drunk at the post.^ XXVI, 486, March, 1868; XXXVIII, 306, Septemler, 1876. 48. A medical officer of a post, where there are constantly sick per- sons under his charge who may at any moment require his attendance, maj", 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 any other hour he may in general be charged with an offence under this Article. XXXVII, 116, N^ovemher, 1875. 49. The drunkenness need not be such as totally to incapacitate the party for the duty; it is sufficient if it be such as sensibly to impair the full and free use of his mental or physical abilities. XXXVI, 444, A2)rU, 1875; XXXVII, 118, 152, 673, Mvemher, 1875, to June, 1876; XXXVIII, 272, August, 1876; XLI, 339, July, 1878. It is not a sufficient defence to a charge of drunkenness on duty to show that the accused, though under the influence of licjuor, contrived to get through and somehow perform the duty. XXXVII, 118, Novemher, 1875. 50. Where a court in its findings substituted the words " under the influence of intoxicating liquor"' for the w^ord "" drunk"' in a specifica- tion under this Article, and found "not guilty" of the charge but "guilty" of conduct to the prejudice, etc., remarhed, that such a discrimination as this finding apparently attempts can not safely be encouraged in the disposition of cases arising under this Article. The object of the Article is manifestly to enforce that measure of sobriety which is essential to the full and calm control of both the mental and physical faculties, and thus to protect the military administration from the great mischief to which it may be liable from the blunders and excesses of oflicers attempting to perform their duties under the influence of drink. Any intoxication which is sufficient to sensibly impair the rational and full exercise of the mental and physical faculties is drunkenness within the meaning of the Article; and should the con- ^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 G. O. 7, War Dept., 1856, and affirmed in (J. O. 5, id., 1857. The case in the latter order, indeed, was a case of drunkenness while on duty as a post coniniander. See another case of the same character in (J. V. M. O. 21, Dept. of the Missouri, 1870, and the remarks of Maj. Gen. Scholield thereon, and compare G. C. M. O. 9, War Dept, 1875. 38, 39] ARTICLES OF WAR, 23 dition of an officer accused of that offence not have partaken of this description, it is better that he be acquitted than that courts by endeavoring to mark degrees of drunkenness should attempt distinc- tions, which in practice would tend to defeat, in great measure, the purpose of the Article. Recommended^ therefore, that the findings in this instance be disapproved.^ XXXVI, 444, Aprils 1875. 51. It is immaterial whether the drunkenness be voluntaril}" induced by spirituous liquor or by opium or other intoxicating drug: in either case the offence may be equally complete." XXXVIII, 409, January., 1877. 52. 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 officer,) committed under such circumstances as to constitute an offence under Art. 61. XXXI, 52, Novemhei% 1870. 53. No punishment except dismissal can legally be imposed upon an officer on a conviction of the offence made punishable by this Article. A sentence imposing, with dismissal, any further punishment, as imprisonment or forfeiture of pay, is, as to such additional penalty, unauthorized and inoperative, and should, so far, be disapproved. XIV, 330, March, 1865. 54. Drunkenness on duty on occasions other than those specified in the order prescribing maximum punishments are offences under the 38th Article, for which maximum punishments have not been pre- scribed. They remain, therefore, punishable at the discretion of the court martial as authorized by the Articles of War and the custom of the service. 64, 445, AjMI. 189 J^. THIRTY-NINTH ARTICLE. Any sentinel who is found sleeping upon his post, or who leaves it before he is regularly relieved, shall suffer death, or such other jiunishment as a eourt-niartial may direct. ^This opinion and recommendation were concurred in; see the order publishing the case, G. C. M. O. 33, War Department, 1875. This Article has been repeatedly construed in General Orders. In G. O. No. 53, Hdqrs. Army of the Potomac, of 1862, the General Comdg., in stating that he finds it hard to understand the doubts sometimes entertained "as to the degree of intoxi- cation which unfits a soldier for the performance of his duties," observes: "Unfitness may be more or less complete; but to be intoxicated at all unfits a man either to give an order or to execute it. ' ' In a subsequent General Order of the same Army, No. 98, of 1862, it is said: "Nothing can be more erroneous than to suppose that as long as an officer is not drunk to insensibility — a condition, moreover, in which he is far less apt to do mis- chief than when he is simply drunk enough to be indiscreet — he is not drunk at all. * * * The fullest iwssession of his faculties by every otficer is necessary to fit him to discharge his duties properly. These duties are not so simple as to be within the competency of a half .sober person." See also G. C. M. 0. 21, Dept. of the Mo., 1870; do. 48, Dept. of Va. & N. C, 1864; do. 33, Dept. of the Platte, 1871. '■^Simmons, § 157. And see Hough (Precedents), 208; James' Precedents, 60. 24 ARTICLES OF WAK. ' [39-42 55. It is no defence to a charge of " sleeping on post "" that the accused hud been previously overtasked b_v excessive guard duty:^ or that an imperfect discipline prevailed in the command and similar oftences had been allowed to pass without notice;^ or that the accused was irregu- larly or informall}' posted as a sentinel.'' Evidence of such circum- stances, however, may in general be received in extenuation of the offence; or, after sentence, may form the basis for a mitigation or par- tial remission of the punishment.* An officer who places or continues a soldier on duty as a sentinel when from excessive fatigue, infirmity, or other disability, he is incompetent to perform the important duties of such a position, will ordinarily render himself liable to charges.'^ FORTIETH ARTICLE. Any officer or soldier who quits his guard, platoon, or division, without leave from his superior officer, except in a case of urgent necessity, shall be punished aa a court-martial may direct. FORTY-FIRST ARTICLE. Any officer who, by any means whatsoever, occasions false alarms in camp, gar- rison, or quarters, shall suffer death, or such other punishment as a court-martial may direct. FORTY-SECOND ARTICLE. Any officer or soldier who misbehaves himself .before the enemy, runs away, or shamefully abandons any fort, post, or guard, which he is commanded to defend, or speaks words inducing others to do the like, or casts away his arms or amnmnition, or quits his post or colors to plunder or pillage, shall suffer death, or such other pun- ishment a.s a court-martial may direct. 56. Misbehavior before the enemy may be exhibited in the form of cowardice, or it may consist of a wilful violation of orders, gross neg- ligence 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 offence have 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 ^ See G. O. 74, Army of the Potomac, 1862; also G. O. cited in note 3, infra. 2 G. O. 74, Army of the Potomac, 1862. ' G. 0. 10, Middle Mil. Dept., 1865; do. 166, Dept. of the South, 1864. SSeeG.O. 10,62, Dept. of Va. & N. C, 1863; do. 2, Northern Dept., 1865; do. 67, Dept. of Washington, 1866; do. 9, Dept. of the South, 1870; G. C. M. O. 44, Dept. of Texas, 1875. •SSee G. O. 15, Army of the Potomac, 1861; do. 62, Dept. of Va. & N. C, 1863; G. C. M. O. 59, Dept. of Texas, 1872; do. 80, Dept. of the Missouri, 1875. "The phases which tiiis offence may assume are well illu^-trated in cases published in tlie following General Orders: G. O. 5, War Dept., 1857; do. 183 Id., 1862; do. 18, 134, 146, 189, 204, 229, 282, 317, \er, 188o; 10, -1, Jfay, 1886; 49, 442, Octoher, 1891; Cards 355, Sepf ember, 1894; 902, February, 1895; 1571, July, 1895. 74. Held that an enlisted marine, who abandoned the marine corps without a discharge and eidisted 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 commandant of that corps for the proper dis- position and action.^ XXXI, 170, 379, Fehruary and May, 1871. 75. Where a soldier enlisted in a certain regiment, after being offi- cialh^ notified that he was duly discharged from a previous enlistment, but without having received the written certificate and evidence of his discharge, which, l)y 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. XXXVIII, 343, October, 1876. 76. An enlistment in violation of this Article is not void but void- able at the option of the United States only. Until so avoided service under it is valid service. 43, 48, September, 1890; 53, 254, Ajyril, 1892; Cards 321, 355, 359, September, 189^; 494, October, 189^; 902, February, 1895; 1429, Jwie, 1895; 1571, July, 1895; 1624, August, 1895;' ^m^, January, 1896; 2115, 3farch, 1896; 2269, 3fay, 1896; 2717, Novemher, 1896. On a trial for an ofl'ence committed during such enlistment, a plea l)y the accused, in bar of trial, that this enlist- ment being fraudulent on his part, is void, should not be sustained. 39, 257, March, 1890. FIFTY-FIRST ARTICLE. Any officer or soldier who advises or persuades any other 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 may direct; and, in time of peace, any punishment, excepting death, which a court-martial may direct. 77. A declaration, made b}^ one soldier to another, of a willingness to desert with him in case he should decide to desert, held not properly an advising to desert, in the sense of this Article. To constitute the offence of advisi?ig to dc^crt^ it is not essential tliat there should have been an actual desertion by the party advised, liut otherwise as to i\iQ,o^QncQ,oi2)ersuading to desert: to complete this offence the persua- sion should have induced the act.' XXXIX, 407, January, 1878. 1 See Samuel, .'«0, 3.31. •■'See now § 1422, pod; also A. R. 134 of 1895 (145 of 1901). ^Compare Hough (Practice), 172, and cases in G. O. 23, Dent, of the Missouri, 1862: G. C. M. O. 11, 152, Id., 1868. 52-54] ARTICLES OF WAR. 31 FIFTY-SECOND ARTICLE. It is earnestly recommended to. all officers and soldiers diligently to attend divine service. Any officer who Ijehaves indecently or irreverently at any jjlace of divine worship shall be brought before a general court-martial, there to be publicly and severely reprimanded by the president thereof. Any soldier who so offends shall, for his first offense, forfeit one-sixth of a dollar; for each further offense he shall for- feit a like sum, and sliall be confined twenty-four hours. The money so forfeited shall be deducted from his next pay, and shall be applied, by the cai)tain or senior officer of his troop, battery, or company, to the use of the sick soldiers of the same. FIFTY-THIRD ARTICLE. Any officer who uses anj^ profane oath or execi-ation shall, for each offense, forfeit and pay one dollar. Any soldier who so offends shall incur the penalties j^rovided in the preceding article; and all moneys forfeited for such offenses shall be applied as therein provided. FIFTY-FOURTH ARTICLE. 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 under his command; and if, upon complaint made to him of officers or soldiers beating or otherwise ill-treating any person, dis- turbing fairs or markets, or committing any 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 the offender's pay shall go toward such reparation, he shall be dismissed from the service, or otherwise punished, as a court-martial may direct. 78. While this Article would certainl}' appear to contemplate the making of reparation for injuries done to the ^^6(97*^5 of citizens rather than for injuries done to their pt^oj^erfyj yet advised, in view of the precedents, that it might probabl}' be regarded as within the equity of the Article to indemnify a citizen for wanton injury done to his prop- erty by a soldier or soldiers, by means of a stoppage against his or their pay, summarily ordered upon investigation by the commanding officer.^ VII, 263, Felrruary^ 186 Jf,. In a few cases a stoppage of the ^G. O. 35, H. Q. A., 1868, construing this article, and prescribing the procedure under it, reparation for injury to property as well as per-wji-s- being authorized, reads as follows: " Under the 32d (now 54th) of the Rules and Articles of War, it is made the duty of commanding officers to see rejiaration made to the jjarty or jjarties injured, from the pay of soldiers w^ho are guilty of abuses or disorders committed against citizens. Upon proper representation ])y any citizen, of wanton injury to his person or property, accompanied by satisfactory proof, the commanding officer of tlie troojis will cause the damage to be assessed by a board of officers, the amount stopped against the pay of the offenders, and reparation made to the injured party. This proceeding will be independent of any trial or sentence by court-martial for the criminal offense." This Article is antiquated in form and indefinite and incomplete in its provisions, and calls for repeal or amendment. For some of the iirincijial cases in which it has been ai)i>lied in our practice, the student is referred to G. O. 4, Dept. of the Ohio, 1863; do. 123, Dept. of the Gulf, 1864; do. 161, Dept. of Washington, 1865; do. 59, id., 1866; do. 74, Dept. of Arkansas, 1865; do. 48, 55, Dept. of Louisiana, 1866; do. 6, Dept. of the Cumberland, 1867; do. 10, Dept. of the South, 1870. 32 ARTICLES OF WAR. [54 pay of an entire organization, for damage to private propert}' com- mitted by its members, has been sanctioned as authorized under the general remedial provisions of this Article. VIII, 671, July^ ISSIf,; XII, 673, Septemher, 1865; Cards, 1861, Wovember, 1895, and 6839, August, 1899. 79. The stoppage contemplated is quite distinct from a punishment hy fnv, and it cannot affect the question of the summary reparation authorized b}^ the Article, that the offender or offenders may have already been tried for the offence and sentenced to forfeiture of pay. In such a case, indeed, the forfeiture, as to its execution, would prop- erl}" take precedence of the stoppage. On the other hand, where the stoppage is first duly ordered under the Article, it has precedence over a forfeiture subsequently adjudged for the offence. XXI, ■147, June., 1866. 80. It does not affect the c|uestion of reparation under the Article, that the offender or offenders may be criminally lial)le for the injury committed, or may have been punished therefor by the civil authorities. XXXIV, 335, June, 1873. 81. IleJd that the remedial provision of this Article could hot be enforced in favor of militar}^ persons (XXVI, 352, January., 1868; XXVII, 453, January, 1869; XXXII, 152, December, 1871); or in favor of the United States (XXVI, 37, September, 1867); or to indemnify parties for property stolen or embezzled. XXXV, 139, January, 1871^; Card 8043, Aiyril, 1900. 82. The pay of the offender or offenders can be resorted to only for the purpose of the "reparation." A military commander can have no authority to add a further amount of stoppage by way of pun'iKlnnent. VIII, 671, July, 186If.. 83. Held that, as an agency for assessing the amount of the dam- age, a court martial could not proi^erl}^ be substituted for the board, directed by G. O. 35, Hdqrs. of Army, 1868, to be convened for such purpose. XXXVII, 52, October, 1875. 84. The procedure under this Article, and pursuant to G. O. 35 of 1868, is as follows: The citizen aggrieved tenders a "complaint" under oath, charging the injur}^ against a particular soldier or soldiers, described by name (if known), regiment, &c., and accompanied by evidence of the injurv, and of the instrumentality of the person or persons accused. If such evidence be satisfactory, the conmianding officer has the damages assessed by a board, and makes order for such stoppage of pay as will bo sufficient for the "reparation" enjoined by the Article. The connnander must have a proper case presented to him; he cannot legalh^ proceed sua sponte. XLV, 14, August., 1881. 85. Where proof was duly made under this Article of injury done 54-58] ARTICLES OF WAR, 38 by some persons of a command, but the active perpetrators could not, upon investigation, be determined, and it appeared that the entire command was present and implicated, lidd that the stoppage might legally be made against all the individuals present. L, 9, January^ 1886. ^ 86. It would not be a sound construction of the Article to extend the specified measure of redress to other than the specified cases. Its strict construction would indeed limit the specific redress to acts of violence against the person, but the weight of American authority extends it to acts of violence against property also. Further than this, the authorities do not go, holding, for example, that it is not applicable to cases of larceny and eml)ezzlement. Thei'efore held that to make a stoppage of pay against enlisted men to reimburse the keeper of a restaurant for food ordered bv them and not paid for would be wholly unauthorized by the terms, scope, or intent of the Article. 37, 293, Decetnber, 1889. FIFTY-FIFTH ARTICLE. All officers and soldiers are to behave themselves orderly in quarters and on the march; and whoever commits any waste or spoil, either in walks or trees, parks, war- rens, fish ponds, houses, gardens, grain fields, inclosures, or meadows, or maliciously destroys any property whatsoever belonging to inhabitants of the United States (unless by order of a general officer commanding a separate army in the field), shall, besides such penalties as he may be liable to by law, be jjunished as a court-martial may direct. FIFTY-SIXTH ARTICLE. Any officer or soldier who does violence to any jierson bringing provisions or other necessaries to the camp, garrison, or quarters of the forces of the United States in foreign parts, shall suffer death, or such other punishment as a court-martial may direct. FIFTY-SEVENTH ARTICLE. Whosoever, belonging to the armies of the United States in foreign parts, or at any place within the United States or their Territories during rebellion against the supreme authority of the United States, forces a safeguard, shall suffer death. FIFTY-EIGHTH ARTICLE. In time of war, insurrection, or rebellion, larceny, robbery, burglary, arson, may- hem, manslaughter, murder, assault and battery with an intent to kill, wounding, by shooting or stabbing, with an intent to commit murder, rajie, or assault and bat- tery with an intent to commit rape, shall be punishable by the sentence of a general court-martial, when committed by persons in the military service of the United States, and the punishment in any such case shall not be less than the punishment provided, for the like offence, by the laws of the State, Territory, or District in which such offence may have been committed. 1690(5—01 3 34 ARTICLES OF WAR. [58 87. The jurisdiction conferred b}- this Article upon military courts has been held In' the highest judicial authority to be not exclusive, but concurrent merely with that of the civil tribunals.' The word "shall,'' in the term "shall be punishable," is construed as equivalent to uiayr XXXVI, 400, Ajrril, 1875; Card 4916, Septeniher, 1898. 88. In framing a charge under this Article, it will not in general be essential to allege, in connection with the date of the offence, or to show by evidence, that the act was committed at a time of war, &c.; this being a fact of which a court will ordinarily properl}' take judicial notice. =^ XVII, 396, Octoher, 1865. 89. IleJd (November, 1865), that military courts were still empow- ered to exercise the jurisdiction conferred Ijy this Article, the status hell I not having yet been declared to be terminated, either by the Executive or Congress. XXI, 17, Novemher^ 1865. A court martial of course could have no authority whatever to decide whether the war was ended.* XVII, 397, October, 1865. I 90. Where a sentence, adjudged b}^ a court convened by the authorit}^ of this Article, imposed a punishment of less severity" than that provided for the same oflence by the law of the State in which the offence was committed (as imprisonment where the law of the State required the death penalty); hM that such a sentence was unauthorized i nd inoperative. XXI, 6; Noveinhei\ 1865; XXIV, 42, Deceriihe)\ 1866. But though the punishment must not be "less," it may legally be of greater severity than that provided by the local statute. II, 564; June, 1863; XXI, 77, Niymmher, 1865. Held that the court, in imposing punishment, should be governed by the local law (so far as required by the Article), although the offence was com- mitted in a State whose ordinar}' relations to the General Govern- ment had been suspended by a state of war or insurrection.^ VII, 205, Fefrrnnry, 1861^. 91. Where a trial and conviction for murder were had under this Article during time of war, but the sentence was not approved until after date of peace (August 20, 1866), held that the sentence was void, the statute (58th Article) not being operative at time of action by reviewing authority. XXIV, 42, Decemher, 1866. Where the crime (an assault with intent to kill) was committed in time of war, but the ^Coleman v. Tennessee, 7 Otto, 509, 513. And see People v. Gardiner, 6 Parker, 143; G. O. 29, Dept. of the Northwest, 1864; do. 32, Dept. of Louisiana, 1866. ^ People V. Gardiner, nvpra. ^See the application of this principle to the fact of the existence of the late war of t!ie rc])ellion, in Justice Field's charge to the grand jury in United States v. Great- hou.>!e, 4 Sawyer, 457. *As to how the late civil war was legally terminated, and when, see War, pod. ^That the Southern States during the civil war were " at no time out of the pale of the Union," see White v. Hart, 13 Wallace, 646. 58, 59] ARTICLES OF WAR. 35 trial was not begun until after peace had been declared, held that the sentence adjudged was void. Card 6738, Juli/, 1899. 92. The local laws of a foreign country in the military occupation of the United States in time of war are not "laws of any State, Terri- tory, or District of the United States" within the meaning of this Article. At such a time and in such a place the punishment to be adjudged for the offences named in the Article would be disci etionary with thQ court-martial. Card 5267, November, 1898; 5848, Felruarij, 1899. 93. As all trials by court martial are for militar}^ offences, the effect of this Article is to make the crimes specitied therein military offences when committed in time of war, etc. , by persons in the military serv- ice. 27, 71, Se2)tember\ 1888. They are not felonies and misdemeanors in the legal sense when punished by sentence of a court martial. 12, 37, Sejytemher, 1886. Held, therefore, that no civil disability would attach to such conviction, as the same does not attach under the laws of the United States to any military offence except desertion. 27, 71, suj)?'a. FIFTY-NINTH ARTICLE. When any officer or soldier is accused of a capital crime, or of any offence against the person or property of any citizen of any of the United States, which is punishable by the laws of the land, the commanding officer, and the officers of the regiment, troop, battery, company, or detachment, to which the person so accused belongs, are required, except in time of war, upon application duly made by or in behalf of the party injured, to use their utmost endeavors to deliver him over to the civil magis- trate, and to aid the officers of justice in apprehending and securing him, in order to bring him to trial. If, upon such application, any officer refuses or willfully neglects, except in time of war, to deliver over such accused person to the civil magistrates, or to aid the officers of justice in apprehending him, he shall be dis- missed from the service. 94. This Article is a recognition of the general principle of the sub- ordination of the military to the civil power, ^ and its main purpose evidently is to facilitate, in cases of offenders against the local civil statutes, who happen to be connected with the army, the execution of those statutes, where, as citizens, such persons remain legally amenable to arrest and trial thereunder. Protection of military persons from civil arrest, except in certain cases, is not the object of this Article. 54, 33, June, 1892; 63, 406, Felruary, 189J^. 95. The commanding officer, before surrendering the party, is enti- tled to require that the "application" shall be sufficiently specific to identif}" the accused and to show that he is charged with a particular crime or offence which is within the class described in the Article. It has been further held that without a compliance with these require- ^ See tht' declaration of this principle in Dow v. Johnson, 10 Otto, 169. 36 ARTICLES OF WAR. [59 ments the commanding officer can not properly .surrender nor the civil authorities arrest, within a militar}^ command, an accused officer or soldier. AVhere 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 application be especially explicit and be sworn to; and in general the preferable and indeed onl}" satisfactory^ course will be to require the production, if practicable, of a due and formal war- rant or writ for the arrest of the party. ^ XXI, 567, July, 1866; XXIII, 490, 2fmj, 1867; XXXY, 357, May, 187^; LIII, U% May, 1887. The application recpiired by the Article should be made in a case where the crime was committed by the party hefore he entered the military service equally as where it was committed b}" him while in the service," In the former case a more exact identification may per- haps reasonably be required. XII, 145, Decemher, ISGJf.. 96. The provisions of the Article are applicable only when the officer or soldier is accused of a crime or ofi^ence "which is punishable by the laws of the land," /. d., by the laws of the particular State or Terri- tory, or of the United States, or by the common law as recognized in the State or Territory. XXXV, 357, May, 187 If.. The b^'-laws or ordinances of a town or city are a part of the "laws of the land" within the meaning of this Article.^ Card 638, Noi)emJ)€i\ 189Ji,. 97. The Article is not applicable to the case of an officer or soldier charged with introducing liquor into the Indian country in violation of the United States statutes, the same not being an ofl'ence against 12 Opins. At. Gen., 10; 6 id., 413, 421; ^.(-jrjar^eMcRoberts, 16 Iowa, 600, 603-605. ^ See G. O. 29, Dept. of the Northwest, 1864, where it is remarked that there is an esjjecial obUgation to surrender the soldier, where the crime was committed by laim before entering the military service. ^As to the meaning of the term "laws of the land," especially as contrasted with mnnicii:)al ordinances, see Vanzant r. Waddell, 2 Yerger, 270; State Bk. v. Cooper, id., 605; Horn v. People, 26 Mich., 221. But the question as applicable to the .59th Article was specifically clecided by Attorney-General Olney under date of November 26, 1894 (21 Opins., 88), as follows: "1. Does the expression ' laws of the land' as used in the 59th Article of War include city ordinances and by-laws? "2. May a soldier be arrested, tried, and punished by a civil authority for the violation of a city ordinance? "3. If he escajies to a military reservation, can a demand be made l)y the civil on the military authorities for his surrender, and if so, will it be the duty of the com- manding officer to surrender him? ' ' If the first question is answered affirmatively, I see no escape from the conclusions, that a soldier may l)e .arrested, tried, and punished by the proper civil authorities for the violation of a city ordinance, and that, if he escape to a military reservation, his surrender may l)e demanded by the proper cdvil authorities and should be made by the military officer in command. "The real inquiry then being whether a municipal ordinance is comprehended by tlie phrase 'laws of the land' as used in the 59tli Article of War, I have no hesitation in saying that in my judgment it is so comprehended. "The general reasoning on tlie subject by the learned Acting .Judge Advocate General, as containeil in his elaborate memorandum of .Tanuary 25, 1875, cannot, I think, be successfully controverted and need not be here rejieated. But it may not 59] ARTICLES OF WAR. 37 the person or property of a citizen. XXXII, 445, March., 1872. Where the jurisdiction of the United States over any military reser- v^ation or other place is unconditionally exclusive, no State official can legallv serve a warrant upon an officer or soldier within the limits of such reservation or place. ^ XXI, 567, July., 1866. 98. The party should be surrendered upon proper application, though the offence be one of which a militar}^ court has jurisdiction concur- rently with the civil courts; unless, indeed, the military jurisdiction has alreadv 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 sen- tence of confinement imposed by court martial cannot, in general, properly be surrendered under this Article. In such a case, the civil authorities should, regularly, defer their application till the military punishment has been executed or remitted.*^ XXXI, 317; April., 1871; 54. 33, June, 1892. Where a soldier, duly surrendered under this Article and allowed to go on bail, was thereupon returned to duty, or having escaped from the civil and come again into the custody of the military authorities,^ 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 time. XXI, 457, June, 1866. be amiss to make special reference to a class of adjudications which clearly define the nature of municipal ordinances and apparently render the result reached by Colonel Lieber inevitable. They are illustrated by a recent case in Vermont in which the facts were that a village charter granted to the village certain powers in the mat- ter of licensing eating-houses which were repugnant to a general statute already in force. The village made a by-law or ordinance pursuant to its charter and the ques- tion arose which prevailed — the ordinance or the general law? Did the general law nullify the ordinance or did the ordinance nullify the general law pro tanto and as regards that particular village? The decision was that the ordinance, conforming as it did to the charter, repealed for that village the pre-existing general law. It was held to do so because though in form an ordinance, yet being authorized by the village charter, it was in reality a special statute of the State of Vermont. The same principle is affirmed in numerous well-considered adjudications of the highest authority. But if valid municipal ordinances are in substance and effect special statutes of the State chartering the cities or towns making the ordinances, they are certainly to be regarded as among the ' laws of the land ' unless that phrase is to be construed as covering the general legislation of the State only and is exclusive of its special legislation. But no distinction of that sort, it is believed, has ever been attempted or has any foundation in reason or precedent. The result is, as already stated, that the by-laws or ordinances of a town or city are to be taken as part of the ' laws of the land ' within the meaning of that phrase as used in the 59th Article of War." ( Published in Circ. 15, A. G. 0. 1894. ) > See Civil Suit, &c. It is further held, in E.r parte McRoberts, 16 Iowa, 600, 603, that the provisions of the Article apply only to officers and soldiers while within the immediate control and jurisdiction of the military authorities, and therefore do not apply to a case of a soldier absent on furlough; liut that such a soldier, pending his furlough, may be arrested in the same manner as any civilian. ^Compare 6 Opins. At. Gen., 423. ' See a case published in G. 0. 7, Dept. of the South, 1871. 38 AETICLES OF WAR. [59 99. A soldier on bail awaiting trial by civil court may, while in this status, be brought before a military court for trial. But the militar}^ proceedings should not interfere with the civil; therefore remarked that if in the particular case the court-martial would probably award a term of confinement extending beyond the time fixed for the trial \y^ the civil court, the military trial shall be postponed. Card 1717, Septemh&i\ 1895. 100. An ofiicer or soldier accused as indicated by the Article, though he may be willing and may desire to surrender himself 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, 622. September, 1871. 101. The term "any of the United States," employed in this Arti- cle, held properly to include any and all the political members of our governmental system, and to embrace an organized Territory equally with a State. 63, 406. February, 189^. 102. The Article is directory not jurisdictional. It does not limit the action to be taken by the military authorities to cases where the application is made by the injured party or in his behalf. It does not place a soldier who has committed a crime and been indicted there- for beyond the reach of the civil power if the person injured does not apply for his surrender. In a case — one of murder for example — where there can be no personal application, the State properly takes the place of the individual. And so in all other cases where an indict- ment has been found, or a warrant of arrest has been issued, the State (using the term in its general sense) with which resides the jurisdiction and the power to prosecute, may make the demand, and upon its demand it is the duty of the commanding officer to surrender the party charged. 54, 33. June, 1892. 103. The Article contemplates only cases in which an "officei or soldier is accused," &c. So, heidih^X it did not apply to a case of a civilian (Chinese) laundryman employed and residing at a military post, accused of a civil crime. The arrest in this case having been made without the knowledge of the commanding officer, remarked., that while it is desirable that arrests by the civil authorities of civilians residing upon military reservations should, in general, be made upon application or notice to the proper commanding officer, such a course is a matter of comity only and can not be required. 42, 134, Jidy., 1890. 104. This Article does not apply to the service, by a sheriff, on an offi- cer or soldier, of a subpcena to appear as a witness before a civil court. In such a case, indeed, the civil official should, as a matter of comity., appl}' first to the post commander, whether or not the post be within the exclusive jurisdiction of the United States. It will then be for the 59, 60] AETICLES OF WAR. 39 commander, in comity, to facilitate the service and to issue the neces- sary permit or order to enable and cause the officer or soldier to attend the court. 35, 284, Septemher, 1889. 105. This Article does not appl}^ to a time of war. Where, however, an officer of U. S. Volunteers was charged with forgery, held that on presentation of a proper warrant he could, by direction of the Sec- retary of War, be surrendered to the civil authorities. Cards 4831, August, 1898; 4644, Ju/y, 1898; 5613, January, 1899. The Article does not forbid the surrender in time of war, but leaves the matter to the discretion of the proper military authorities. Card 4916, Sep- tember, 1898. 106. It would be entirely proper to surrender a soldier to the civil authorities on a legal warrant for a crime committed before enlistment, but there is no provision of law for his transportation by the Govern- ment to the place where he may be wanted. Cards 1872, November, 1896; 4780, August, 1898. SIXTIETH ARTICLE. [1] 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 be false or fraudulent; or [2] 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 [3] 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 [4] Who, for the purpose of obtaining, or aiding others to obtain, the approval, allowance, or payment of any claim against the United States or against any officer thereof, makes or uses, or procures or advises the making or use of, any writing, or otlier paper, knowing the same to contain any false or fraudulent statement; or [5] Who, for the purpose of obtaining, or aiding others to obtain, the approval, 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 [6] Who, for the purpose of obtaining, or aiding others to obtain, the approval, allowance, or payment of any claim against the United States or any officer thereof, forges or counterfeits, or procures or advises the forging or counterfeiting, of any sig- nature 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 [7] Who, having charge, possession, custody, or control of anj' money or other prop- erty of the United States, furnished or intended for the military service thereof, knowingly delivers, or causes to be delivered, to any persons having authority to receive the same, any amount thereof less than that for which he receives a certificate or receipt; or [8] Who, being authorized to make or deliver any paper certifying the receipt of any property of the United States, furnished or intended for the military service thereof, makes, or delivers to any person, such writing, without having full knowledge 40 ARTICLES OF WAR. [60 of the truth of the statements therein contained, and witli intent to defraud tlie United States; or [9] Who steals, erubezzles, knowingly and willfully misappropriates, applies to his own use or benefit, or wrongfully or knowingly sells or disposes of any ordnance, arms, equipments, ammunition, clothing, subsistence stores, money, or other property of the United States, furnished or intended for the military service thereof; or [10] AVho 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 person not having lawful right to sell or pledge the same, — Shall, on conviction thereof, be punished by fine or imprisonment, or by such other punishment as a court-martial may adjudge, or by any or all of said penalties.^ And if any person, being guilty of any of the offences aforesaid, while 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 extent as if he had not received such discharge nor been dismissed. 107. The offence known as the duplicating of pay accounts, where it involves, as it generally does, a presenting or a causing to be presented of a false or fraudulent claim against the United States, is properly chargeable under this Article. XXXVII, 356, February, 1876; XLII, 569. 2rarch, 1880. 108. When an officer who had been sentenced to forfeit all pay due, but whose sentence had not yet been approved or published, presented 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 presenting a fraudulent claim under this Article. X, 609, November, 1861),. 109. 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 commanding officer on a discharge paper and a "final statement" paper, and presented the same to a pay- master; held that he was chargeable with offences defined in the 2d, 4th and 6th paragraphs of this Article. XXVIII, 668, June, 1869. 110. Where an officer, by collusion with a contractor, who had con- tracted for the delivery of military supplies, received for a pecuniary consideration from the latter a less amount of supplies than the United States was entitled to under the contract, while at the same time giving him a voucher certifying on its face the delivery of the whole amount, — held that such officer was chargeable with an offence of the class defined in the 8th paragraph of this Article. XXXV, 206, February, 1876. 111. In framing a charge under this Article of knowingly and wil- fully misappropriating, &c., public funds,^ it is not necessary to allege ^The words in italics were added by act approved March 2, 1901. " "Ail money lawfully in the hands of a i)ublic officer, and for which he is account- able, is money of the United States." United States y. Watkins, 3 Cranch C. C, 441. 60] ARTICLES OF WAR. 41 an intent to defraud the United States. It is the act of the misappro- priation described itself which constitutes the offence, irrespective of the purpose or motive of such act, V, 498, December^ 1863; XXIII, 77-81, June, 1866. 112. Where an officer of the Quartermaster Department used teams, tools, and other public propert}", in his possession as such officer, in erectino- buildings, &c., for the benefit of an association, composed mainh' of civilians, of which he was a meml^er; held that he was prop- erly chargeable with a misappropriation of property of the United States. X, 664, Decemhei', 1864-. And similarl}- held of a loaning by such an officer of public property (corn) to a contractor, for the pur- pose of enabling him to fill a contract made with the United States through another officer,^ XXIX, 26, Ju?ie, 1869. The fact that a practice exists in a post or other command of making a use (not authorized by regulation or order) of government property for private purposes, or of loaning it in the prospect of a prompt return, can con- stitute no defence to a charge for such act as an offence under this Article. Such practice, however, if sanctioned, though improperl}'^, by superior authority, may be shown in evidence in mitigation of sentence. XXIX, 189, August, 1869. 113. The offence of stealing-, indicated in the 9th paragraph of this Article, consists in a larceny of "property of the United States fur- nished or intended for the military service." Except in time of war (see Fifty-eighth Article), larceny of other property can be charged as a militar}' offence only when cognizable under Art. 62, as prejudic- ing good order and military discipline. See Sixty-second Article. 114. Sec. 5494, Revs. Sts., provides that the refusal of any person charged with the disbursement of public monevs 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 an}' indictment against such person for embezzlement, as j^fimayacie evidence of such embezzlement." Applying this rule to a military case, it is clear that, in the event of such a refusal bj^ a disbursing officer of the army, the burden of proof would be upon him to show that his proceeding was justified, and that it would not be for the prosecution 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 produce such moneys, exhibit vouchers for the same, or otherwise account for their use, when so required by his department commander; held that he was properly charged with and convicted of ^ Compare case in G. 0. ]M. O. 46, Hdqrs. of Army, 1869. 42 ARTICLES OF WAR. [60 embezzlement (the embezzlement now prohibited by this Article). XXTT. 54S, Jxuie, 1867. 115. Where a quartermaster used temporarily with his private car- riage a pair of government horses in his charge; held that he was not properly chargeable with embezzlement, but with the offence (now under this Article) of knowingly applying to his own use and benefit property of the United States, furnished for the military service. IV, 421, DeceiiJ}er, 1863. 116. The inmqyjyropriatlon specified in the Article need not be an appropriation for the personal profit of the accused. The words "to his own use or benefit," qualify only the term "applies." XXIII, 77, June, 1866. 117. Held that under the concluding provision 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, provided of course the two years' limitation of Art. 103 had not expired. XXXI, 34, Wovemher, ^870; 1. 673, July, 1883. 118. 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. 1658, Rev. Sts., lield that a volunteer or militia oflicer or soldier could be tried, after his discharge 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, 670, July, 1866; XXVI, 166, JSfovetnlx')'., 1867. 119. In charging embezzlement under this Article, it is not necessary, if the fact sufficiently appears from other allegations, to aver in terms in the specification that the money or property was "furnished or intended for the military service of the United States." XLVII, 476, September., 1881^. 120. Repeated false statements of the accused relative to the public moneys for which he was accountable are competent evidence going to sustain a charge of embezzlement under this Article. XLVII, 475, SejJtemlM', 1881^. 121. The application or operation of this Article is in no manner ^ Whether this provision, in subjecting officers and soldiers discharged, mustered- out, &.C., and become civiUans, to trial l)y court martial in the same manner as if they were a part of the army, is constitutional, is a question which is believed not to have been judicially passed upon. Probably originally inserted in the act of March 2, j8(m (from which the Article is repeated), as in the nature of a trar measure, it was in fact relied upon, as giving jurisdiction, in but a small number of cases even during the war, and since that period the excejitional jurisdiction conferred has been rarely taken advantage of. See § 1931, and note to § 1031, post. 60, 61] ARTICLES OF WAR. 43 affected by the enactment of March 3, 1875, c. 144, constituting embezzlement of public property a felony and making it triable by a U. S. court, such act being a purely civil statute. XL VI, 101, July^ 1S82. 122. Where an officer, for the purpose of obtaining the allowance of a fraudulent claim against the United States, wilfully induced another to make to the United States a lease of premises for public use, con- taining a false and fraudulent statement, /teld that he was chargeable with an offence of the class specified in the 4th paragraph of this Article. 42, 189, Jult/, 1890. SIXTY-FIKST ARTICLE. Any officer who is convicted of conduct unbecoming an officer and a gentleman shall be dismissed from the service. 123. To constitute an offence under this Article, the conduct need not be "scandalous and infamous." These words, contained in the original article of 1775, were dropped in the form adopted in 1806. Nor is it essential that the act should compromise the honor of the offi- cer.^ It is only necessary that the conduct should be such as is at once disgraceful or disreputable and manifestly unbefitting both an officer of the army and a gentleman.^ An act, however, which is only slightly discreditable is not, in practice, made the subject of a charge under this Article. The Article, in making the j)iinistinient of dismissal imperative in all cases, evidently contemplates that the conduct, while unfitting the party for the society of men of a scrupulous sense of decency and honor, shall exhibit him as unworthy to hold a commis- sion in the army. II, 52, MarcK^ 1863. 124. Knowingly making to a superior a false official report held chargeable under this Article. I, 365, October, 1862; XXVII, 123, August., 1868. So of a deliberately false official certificate as to the truth or correctness of an official voucher, roll, return, &c. XXVII, 290, Octoher, 1868. So of any deliberately false official statement, written or verbal, of a material character. XXVII, 123, supra. So, where an officer caused the sergeant of the guard to enter in the guard book a false official report that he (the officer) had dulv visited the guard at certain hours as officer of the day (when he had in fact not done so), and thereupon himself signed such report and submitted ^G. 0. 25, Dept. of the Missouri, 1867. ^ "An officer of the army is bound by the law to be a gentleman." Atty. Gen. Gushing, 6 Opins. 413, 417. See definitions or partial definitions of the class of offences contemplated by this Article, in G. O. 45, Armv of the Potomac, 1864; do. 29, Dept. of California, 1865; do. 7, Dept. of the Lakes, 1872; G. C. M. O. 69, Dept. of the East, 1870; do. 41, Hdqrs. of Army, 1879. See also G. O. 12, Dept. of the East, 1895. 44 ARTICLES OF WAR. [61 it to his post commander; held that his conduct was chargeable as an offence under this Article. XLII, 585, A])ril^ 1880. 125. The following acts, committed in a particular case, held to be offences within this Article: — preferring false accusations against an officer; attempting to induce an officer to join in a fraud upon the United States; attempt at subornation of perjury. XXVII, 435, Decevnher, 1868. 126. An attempt, by corrupt means, to induce an officer to give a vote, as a member of a post council of administration, in favor of a particular candidate for the tradership of the post, Jield properly charged under this Article. XXXVIII, 671, July, 1877. 127. JIt'ld that a surgeon who appropriated to his own personal use, and to that of his private mess, food furnished by the Government for hospital patients, was guilty of an offence under this Article. II, 33, Fehnuwy, 1863. 128. The violation b}- an officer of a promise or pledge on honor, given Ijy him to a superior — in consideration of the withdrawal by the latter of charges preferred for drunkenness — that he would abstain for the future, or for a certain period from the use of intoxicating drink; held chargeable under this Article. XXVII, 297, October, 1868; XXIX, 151, Augiid, 1869. 129. Where an officer appeared in uniform at a theatre drunk, and conducted himself in such a disorderly manner as to attract the atten- tion of officers and soldiers who were present, as well as the audience generally; /^t/rZ that he was properly convicted of a violation of this Article. ' XXV, 479, Aj>ril, 1868. 130. Engaging, when intoxicated, in a fight with another officer, in the l)illiard room at a post trader's establishment, in the presence of other officers and of civilians, held in the particular case, an offence within this Article. XLII, 478, January, 1880. So held of an engag- ing in a disorderly and violent altercation and fight with another officer in a pulilic place at a military post in sight of officers and soldiers. XXVII, 635, April, 1869. So heldoi an exhibition of him- self by an officer, distinguishable b}' his uniform, in a public place, in a grossly drunken condition. XXXVIII, 140, July, 1876. 131. Gambling with enlisted men (in a public place in this case), held an offence within this Article.^ XXXVII, 127, March, 1873. And so of visiting in uniform a disreputable gambling house and gambling with gamesters. XLII, 633, 3fay, 1880. 132. To justif}^ a charge under this Article, it is not necessar}- that the act or conduct of the officer should be immediatelv connected with or should directly affect the militarj^ service. It is sufficient that it is 'To the same effect, as an early precedent, see G. 0. 1, War Dept., 1847. 61] ARTICLES OF WAR. 45 morally wrong and of such a nature that, while dishonoring- or disgra- cing him as a gentleman, it compromises his character and position as an officer of the army. V, 148, October, 1863; XXIV, 555, May, 1867; XXVI 0, 649, Jime, 1869. 133. Thus, though a mere neglect on the part of an officer to satisfy his private pecuniary obligations will not ordinarily furnish sufficient ground for charges against him (XXVI, 551, 2[ay, 1868), yet where the debt has been dishonorably incurred, — as Avhere money has been •borrowed under false promises or representations as to payment or security, or where the non-payment has been accompanied by such circumstances of fraud, deceit, evasion, denial of indebtedness, &c., as to amount to dishonorable conduct,— the continued non-paj^ment, in connection with the facts or circumstances rendering it dishonorable, may properly be deemed to constitute an offence chargeable under this Article.' XIII, 425, February, 1865; XXIII, 564, July, 1867; XXVII, 430, Deceinber, 1868; XXVIII, 328, January, 1869; XXIX, 208, Augmt, 1869; XXXIV, 307, June, 1873. 134. 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 fact, as he was well aware, he had none; Jield that he was amenable to a charge under this Article. XIII, 207, January, 1865. 135. Neglect or refusal to pay honest debts may constitute an offence under this Article, where so repeated or persistent as to furnish reason- able 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, 635, September, 1866; XLII, 54, Mveniber, 1873. 136. An indifference on the part of an officer to his pecuniary o])li- gations, 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 discredit and scandal upon the military service, held to constitute an offence within the purview of this Article.' XXIII, 566, July, 1867. 137. Where certain officers of a colored regiment made a practice of ^ Cases of officers made amenable to trial by court-martial, under this Article, for the non-fulfilment of pecuniary obligations to other officers, enlisted men, post traders and civilians, are found in the following General Orders of the War Dept., and Hdqrs. of Army:— No. 87, of 1866; do. 3, 55, 64, of 1869; do. 15, of 1870; do. 17, of 1871; do. 22, 46, of 1872; do. 10, of 1873; do. 25, 50, 68, 82, of 1874; do. 25, of 1875; do. 100, of 1876; do. 46, of 1877; do. 39, 124, of 1885; do. 31, of 1887; do. 54, of 1888; do. 20, of 1890; do. 3, 85,of 1891; do. 45, 65, 106, of 1893; do. 53, of 1894; do. 20, of 1895; do. 38, of 1896, and do. 5, of 1897. For English precedents see James Courts Martial (Collection, Charges, &c. ), pp. 303, 395, 510, 618, 622, 696, 797, 802. ^See, on the subject of these complaints, 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 61st Article of War, "any officer who, after due notice, shall fail to quiet such claims against him." 46 ARTICLES OF WAR. [61 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; held that they were properly convicted of a violation of this Article. XXIII, 260, Octoher, 1866; XXIV, 72, December^ 1866. 138. Held that a continued neglect, without adequate excuse, to sat- isfy a pecuniary obligation long overdue, after specilic assurances given of speed}^ payment, was a dishonorable act constituting an offence under this Article.' 59, 261, 3£ay, 1893. 139. Where an officer stationed in Utah was married there by a Mor- mon official to a female with whom he lived as his wife, although hav- ing at the same time a legal wife residing in the States; held thai he might properly be brought to trial by general court martial for a vio- lation of this article. XXIII, 164, August, 1866. So held of an officer who committed bigamy b}^ publicly contracting marriage in the United States, while having a legal wife living in Scotland whom he had abandoned. XLII, 98, Jannary., 1879. 140. Abusing, assaulting, and beating his wife by an officer held chargeable as an offence under this Article. XXXI, 400, May., 1871. 141. 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 provide for her support, held to constitute "conduct unbecoming an officer and a gentleman " in the sense of this Article. XLIII, 21, Octoher, 1879; L, 392, 431, June, 1886. Similarly held with respect to failure on the part of an officer to support his wife and children without adequate excuse therefor. 59, 348, May, 1893. 142. According to the accepted principle of interpretation, hj which Articles of War enjoining a specific punishment or punishments, are held to be in this particular both mandatory and exclusive, no sentence other than one of simple dismissal can legally be adjudged upon a con- viction under this Article. A sentence which adds to dismissal any other penalty or penalties — as disqualification for office, forfeiture of pay, imprisonment, &c., is valid and operative only as to the dismissal, and as to the rest, should be formally disapproved as being unauthorized and of no effect. IV, 283, October, 1863; IX, 672, Ocfobe/-, 186 J^; XIV, 330, March, 1865. 143. The use of aliusiv^e language toward a connnanding officer may constitute an offence under this Article. But, ))oth as a matter of cor- rect pleading, and because the 20th Article authorizes a punishment ^See the recent ruling to a similar effect by the Supreme Court in Fletcher tJ. U. S., 148 U. S., 84, 91-92; also the same case in 26 Ct. Cls., 541. 61] ARTICLES OF WAR. 4? less than dismissal, the language should be so particularized as to show that it constituted an offence more grav^e than the mere disrespect which is the subject of the latter Article. A specification not thus setting forth and characterizing the epithets or words employed will be sub- ject to a motion to make definite or strike out. LVI, 562, Septemher^ 1888. 144. The mere acceptance by an officer of compensation from private parties (civilians) whom, by permission of his superior, he assists in a private undertaking, though it may be an indelicate act, is not an offence under this Article. Of the propriety of such conduct an officer must judge for himself. 52, 322, March, 1892; 53, 25, March, 1893. 145. The duplication of a "pay account," or claim for monthly pay, is always an offence under this Article. It is no defence that the trans- fer was made before the pay was actually due and paj^able, i. e, before the end of the month. While such a transfer may be inoperative in view of par. 1440, A. R. (1300 of 1895),^ in so far as that the Government may refuse to recognize it, it is valid as between the oflicer and the party, and to allow the former to shelter himself behind the regulation would be to permit him to take advantage of his own wrongful and fraudulent act. 51, 370, January, 1892; 50, 45, Octoher, 1891. 146. The regulation— par. 1440, A. R. (1300 of 1895) i— does not assume to invalidate, as between the parties, a transfer made or dated before the last day of the month, nor could it do so. Nor, though the money ma}^ not be payable thereon by the paymaster, is the offence of the officer, under this or the 60th Article, any the less. An officer has no right to present for payment and procure to be paid to him- self a pay account of which a duplicate remains outstanding in the hands of a hona fide transferee. The latter has an equitable, if not a legal, claim to the pay, and this claim can not be ignored by the offi- cer without dishonor. Moreover an officer of the Army has no right to place the military authorities in the position of thus refusing to pa}' a hona fide holder of a draft upon the Treasury. Such an act com- promises and discredits the United States and the Government, and is especially an offence in a public officer. 50, 219, Nommher, 1891. 147. It is no defence whatever to a charge under this Article that between the date of the refusal by the United States to pay the assignee of a duplicated voucher and the date of the arraignment of the officer or of the service of the charges, the money due has been paid, or somehow secured or made good to the assignee, or that he has been induced to withdraw or suspend his claim against the officer.^ 50, 45, Octoher, 1891. » A. R. 1447 of 1901. ^ See the remarks of the reviewing authority in the cases pubUshed in G. C. M. O. 88 of 1886 and 56 of 1893. 48 ARTICLES OF WAR. [62 SIXTY-SECOND ARTICLE. All crimes not capital, and all disorders and neglects, which officers and soldiers may be guilty of, to the prejudice of good order and military discipline, though not mentioned in the foregoing Articles of "War, are to ])e taken cognizance of by a gen- eral or a regimental, garrison, or field-officers' court-maitial, according to the nature and degree of the offence, and punished at the discretion of such court. 148. The word " crimes" in this Article, distinguished as it is from " neglects" and " disorders," means military offences of a more serious character than these, including such as are also civil crimes — as homi- cide, robbery, arson, larceny, &c. "Capital" crimes {L e. crimes capitally punishable), including murder, or any grade of murder made capital by statute, can not be taken cognizance of by courts martial under this Article. 1, 473, December, 1862; VII, 429, 465, March and Aj)ril, 1861).; XI, 176, JVovemher, 1861^; XXIX, 257, September, 1869; XXXII, 478, 522, April, 1872; XXXIV, 350, 447, July and September, 1873; XXXV, 385, September, 187 J^; XXXVI, 364, April, 1875; XLI, 50, November, 1877. A crime which is in fact murder, 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 simpl}^ as "conduct to the prejudice," &c.^ If the specitication, or the proof, shows that the crime was murder and a capital offence, the court should refuse to take jurisdiction, or to lind or sentence. If it assume to do so, the proceedings should be disap- proved as unauthorized and void. XXXIII, 155, July, 1872; XXXIV , 250, May, 1873; XLII, 451, December, 1879. 149. The term "to the prejudice of good order and military disci- pline," qualifies, according to the accepted interpretation, the word "crimes" as well as the words "disorders and neglects." Thus, the crime of larceny (sometimes charged as "theft" or "stealing") is held chargeable under this Article, when it clearly affects the order and discipline of the military service. Stealing, for example, from a fellow soldier or from an officer (or stealing of public money or other public property, where the offence is not more properly a violation of Art. 60) is generally so chargeable. XXIV, 441, April, 1867; XXVI, 23, 439, 487, September, 1867, to March, 1868; XXXVI, 214, January, 1875; XXXIX, 47, Decemher, 1876. And so of any other crime (not capital), the commission of which has prejudiced militar}^ discipline. As for example, manslaughter (or homicide not amounting to murder — ^ 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 Dept., 1871; also the simi- lar rulings in (1. C. M. O. 28, Dept. of Texas, 1875; (I. O. 14, Dei)t. of Dakota, 1868; do. 104, Army of the Potomac, 1862. As to the jurisdiction of courts martial in cases of murder, &c., m time of war, see Fifty-eightu Article. 62] ARTICLES OF WAR. 49 see § 14S, ajitr) of a soldier (XXV, 592, June, 1S6S; XXXI, 87, Decend)ei\ 1S70; 21S, Ap,'iL 1871; XXXni,155,JaIi/, 1S72; XXXVI, 667, SeptcmlM/; 1875; XXXVII, 380, March, 1876; XLI, 188, April, 1878); assault with intent to kill a fellow soldier (XXVII, 587, 654, March and May, 1869); forgery of the name of a disbursing or other military officer to a government cheek or draft (XXIX, 36i», October, 1869); or forgery of an officer's name to a check on a bank (XXXII, 623, May, 1872) whether or not anything was in fact lost by the Goy- ernment or the bank or officer; forgery in signing the name of a fellow soldier to a certificate of indebtedness to a sutler (IX, 328, July, 1864); or to an order on a paymaster (XLII, 562, March, 1880); embezzlement or misappropriation of the property of an officer or soldier. XXXIX, 201, Ocioler, 1877. 150. JJeM that for an officer to print and pulilish to the army a criti- cism upon an official report, made by another officer in the course of his duty to a common superior, charging that such report was erroneous and made with an improper and interested motive, was gravely unmilitary conduct to the prejudice of good order and mili- tary discipline. An officer who deems himself wronged b}^ 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 resort to any form of puljlication of his strictures or grievances. XXXIX, 431, February, 1878. So held that for an officer to publish or allow to be published in a newspaper of general circulation, charges and insinuations against a brother officer by which his character tor courage and honesty is aspersed and he is held up to odium and ridi- cule before the army and the community — was a highl}^ unmilitary proceeding and one calling for a serious punishment upon a conviction under this Article, and this whether or not the charges as published were true. XLII, 284, 2Iay, 1879. 151. A crime, disorder, or neglect, cognizable under this Article, may be charged either by its name simply, as "larceny," "di-unken- ness," "neglect of duty," &c.; or by its name wdth the addition of the words, "to the prejudice 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 imma- terial in which form the charge is expressed, provided the specifica- tion sets forth facts constituting an act prejudicial to good order and military discipline. VII, 485, March, 186^; IX, 328, March, 1864; XI, 228, December, 1864; XXVIII. 4S6, AprlL I860. Whenever the charge and specification take)t together make out a statement of an act clearh' thus prejudicial, &c,, the pleading will be regarded as substan- 16906—01 4 50 ARTICLES OF WAR. [62 tially sufficient iiiidei- this general Article. XVI, 316, 551, June and 8epteml>ei', 1S65. 152. A charge of "conduct to the prejudice,-'' c^c, with a specitica- tion setting forth merely trials and convictions of the accused for pre- vious offences, is not a pleading of an offence under this Article, or of any militar}' offence. XXVII, 331, jVov('nihei\ ISGS. So of a charge of "habitual drunkenness to the prejudice, *" &c., with a specifica- tion setting forth instances ih which the accused has been sentenced for acts of drunkenness. XXXIII. 175. Juh/^ 1872. Such charges indeed are in contravention of the principle 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 simply the result of an aggregation of similar offeiices, is insufficient in law. XXXVI, 432, May., 1875. Where the specifica- tions to such a charge, in a case of an officer, set forth that the accused was "frequentl}^" drunk, " f requentl}' " absented himself without authority from his command, &c., Jidd 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 Article, with specifications setting forth — each separately — some par- ticular and specific instance of offence. XXXVIII, 211, August, 1876. 153. Ileld that a specification alleging homicide, I )ut not adding *■ ' with malice aforethought,"''' or in terms to that effect, was a pleading of man- slaughter only and thus within this Article. XLVII, 385, July, 1884- 154. The withdrawing by a disbursing officer of the Army from an authorized depository of public funds for a purpose not prescribed or authorized by law — as for personal use, or to pay claims not due from the United Stattes or pa3"able by such officer — being a form of embez- zlement defined by section 5488, Rev. Sts., is properly charged as embezzlement under this article. XXV, 588, 3Jay, 1868; XXVII, 414, Decemher, 1868; XXXIII, 291, 495, Sepemher and November, 1872; XXXVIII, 96, May, 1876. Though the offence may in terms be laid as a violation of the act of 1866 (5488. Rev. Sts.), it is, indeed, only a form of a charge of violation of the 99th (now 62nd) Article of War,^ the act of Congress merely furnishing a definition of the •^An examination of the opinions in the cases upon which the text is based dis- closes the fact that the distinction between the character of the general offence of embezzlement and the particular embezzlement defined in the act of June 14, iSBfi, now sec. 5488, Rev. Sts., is clearly set out and defined, the difference l)eingso markecl that it would be an error to charge the acts set out in the lattei' statute as a violation of the 60th article of war. Thest> opinions were rendered with reference to the trials of officers, which trials were pubHslied in the following general court-martial ordera of the War Department: 43, 8(), of 18(>8; 27, ;54, of 187L', and 7, of 187.3. In all of the.se cases, excei)t the last one, the ofHcers were tried, among other offences, for illegally withdrawing from the authorized depositories or applying to a ])urpose not authorized by law, money intrusted to them, and in each of these cases the money so withdrawn or misapplied was furnished or intended for the military 62] ARTICLES OF WAR. 51 offence. The act, it may be added, furnishes also a measure of punish- ment which may properly aid, though it need not necessarih" govern, service, but the offences were charged under the act of June 14, 1866, now f-ec. 5488, Rev. Sts., and not under what is now suljdivision 9 of the 60th article of war. The othcer named in the last order was tried under the act of ^March 2, 1863, now the 60th article of war, for emliezzlement, and not for any acts legitimately charge- aljle under the act of June 14, 1866. In remarking upon the general offence of embezzlement as then set out in the o9th Article of War of the articles of 1806, and up(jn the embezzlement detined in the act of June 14, 1S66, Judge- Advocate General Holt, iu his opinion upon the case in G. C. M. O., 34, supra, says: "* * * The court may well be supi^osed to have construed the 39th Article as contemplating an embezzlement or misapplication with fraudulent intent, and to have acquitted on the ground that there was upon the testimony a reasonable doubt as to the existence of such intent. But if this con- clusion be accepted, the fact remains that no such construction could jjroperly govern in connection with the other charge (embezzlement under the act of June 14, 1866). The statute of 1866, in view of which it was preferred, is the expression of extreme vigilance in regard to the proper use and disposition of the i)ul)lic moneys, found by the experience of the Government to have become imperatively necessary to be observed. It provides an additional safeguard of the public treasury by enacting that any disbursing officer who shall withdraw, transfer, or apply any of the public funds intrusted to him for any purpose not authorized by law shall be deemed guilty of a felonious embezzlement and be punished accordingly. The intent ot the officer, whether innocent or fraudulent, enters in no manner into the statutory offence. If his act of withdrawal, application, etc., of the funds is simply one not authorized by existing law, he is guilty of the crime here defined by Congress. His intent, if innocent, may perhaps be considered in mitigation of jjunishment, but can not be relied upon as a legal bar against conviction. The offence created by this act belongs to the class known as uiala prohilnta, but it is upon the repression of this class of offences that the safety of the public treasury largely depends." In the publication to the Army of this case, the Secretary of War, approving the views of Judge- Advocate General Holt, said: "In the opinion of the Secretary of AVar, they might well have convicted the accused of at least a portion of the charged violations of the act of June 14, 1866 (now sec. 5488, Rev. Sts.), a statute enacted for the more complete protection of the Treasury, * * * and which without regard to the i)dent of the offender denounces all withdrawals from a i^dblic depository or dispositions of public moneys not authorized by express law." As a rule, therefore, acts defined in sec. 5488, Rev. Sts., have been brought to trial as embezzlement under this section in violation of the 62d article of war, and not under the 60th article of war. See in this connection in addition to the cases already cited those pulilished in the following general court-martial orders (War Department): 5, of 1869; 21, 58, 81, of 1874; 52, of 1877; 5, of 1881; 30, of 1883. See also S. O. 172, A. G. O., of 1899 (order publishing case of Capt. 0. ]M. Carter, Corps of Engineers). See further, O. M. Carter r. ^IcLaughry (105 Fed. Reporter, p. 614). In the latter case the court, inter alia, said: " It is also contended that under the sixty-second article of war no charge can be ])referred that is embraced in any other article, and that as the charge is that of eml)ezzlement it is covered by either the first, fourth, or ninth paragrai)h of the sixtieth article of war. Assuming, but not deciding, that no charge can be laid under the Sixty-second Article of War if it is mentioned in any preceding article, still it is apparent that the embezzlement defined in section 5488, Revised Statutes, is not the offence denounced in either the first or fourth paragraph referred to, and I am also of the opinion that it is a species of end)ezzlement different from that defined in the ninth i)aragraph of the Sixtieth Article of War, since the mone}' which is the sul)ject of eml)ezzlement under the lat- ter article is money 'furnished for military service,' whereas under section 5488, the term 'money' comprehends anj' iiublic money, whether appropriated for the mili- tary service or for other ])urposes. The offence denounced in section 5488 is much broader and more comprehensive than tlie other, the former being the application by a disbursing officer of money to any unauthorized purpose, whilst under the ninth paragraph mentioned the money which is the subject of the em1)ezzlement is money aj)propriated specifically for tlie military service, and it is quite probaljle from the context of the entire paragraph that the term 'embezzlement,' as there employed, means such an offence as is generally understood where one havinsj the money of another in his custody ajipropriate-) it to his own use with felonious intent, intending to deprive the true owner thereof." 52 ARTICLES OF WAR. [62 the discretion of a court iiuirtiul in imposing sentence. XXXIII, 495, Noveniher^ 187^. But Jicld. that to constitute such embezzlement it is not necessary that there should have been a personal conversion 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 pur- pose of public moneys, and the intent of the offender, whether fraudu- lent or not, enters in no respect into the statutory crime. ^ If the withdrawal or application of the funds is simply one not prescribed or authorized by law, the offence is complete.- XXV, 588, 2Iay^ 1868; XXVII, 116, July, 1868; XXXIII, 4<>1. Xovemhcr, 1872; XXXVIII, 06, 2ray^ 1876. An absence, however, of criminal motive in the illegal act ma}^ be shown in mitigation of sentence in a military case. XXXIII, 494, supra. So, held, that it constituted no defense to a charge of an embezzlement of this class (though it might be shown in mitigation of punishment) that the otticer had restored to the public depository the funds illegally withdrawn by him before a formal demand was made for the same. XXV, 588, supra. 155. It is a defence to a charge (under this Article) of the embezzle- ment defined in Sec. 5490, Revised Statutes, as consisting in a failure to safely keep public moneys by an officer charged with the safe- keeping of the same, that the funds allfeged to have been embezzled were, without fault on the part of the accused, lost in transportation or fraudulently or feloniously abstracted. I, 435, JVovemher, 1862. 156. In view of the injunction and definition of Sees. 3622 and 5491, Rev. Sts., an officer who, in his official capacity, receives public money (not pay or an allowance) which he fails duly to account for to the United States, is guilty of embezzlement. The statute makes no dis- tinction as to the sources from which the money is derived or the circum- stances of its receipt. Nor is it material whether or not the officer actually converted it to his own use or what was the motive of his dis- position of it. So held that an officer who, having claimed and exacted certain moneys of the United States from government contractors, failed to pay the same into the Treasury, or to duly account therefor, was guilty of embezzlement under this Article. 52, 138, February, 1802. 157. Where an ofiiccr allowed to an (Milisted man and j)aid to him. out of certain public funds consisting of the proceeds of a public sale of condenmed ((uartermastcr stores, an amount of ten per centum on tlie total of such proceeds, as a compensation for the services of such man as auctioneer at the sale, held that such payment was illegal and unau- ^See remarks of the Secretary of War in (J. C. ^I. O., 34, War Department, 1871', quoted in precedinj^ note. ^Compare 14 Oj)ins. At. (ien., 47;>. 62] ARTICLES OF WAR. 53 thorized ^ and constituted an embezzlement of public money charoeal)le under this Article. 59, 201, ApriL 1893. 158. Whether acts committed against (?/^v7/<:«^s are offences within this Ai:ticle is a question to be determined by the circumstances of each case, and in regard to which no general ]-ule can be laid down. If the offence be committed on a military reservation, or other premises occupied by the arm}"; or in its neighl)orhood so as to be — so to speak — in the constructive presence of the army; or if committed by an officer or soldier while on duty, particular!}' if the injury is done to a member of the community whom the offender is specially required to protect; or if committed in the presence of other soldiers, or while the offender is in uniform; or if the offender use his military position or that of another for the purpose of intimidation or other unlawful influence or object — the offence will in general properly be regarded as an act prejudicial to good order and military discipline and cogni- zable by a court martial under this Article. The judgment on the subject of a court of militar}" officers, experts as to such cases, con- firmed T)y the proper reviewing commander, should be reluctantly disturbed.' XLIX, 'im, Angmt, 18S5; 28, 207, N(>ven>her, 1888; 34, 381, August, 1889; 36, 151, Octoher, 1889. 159. The following offences have been held properly charged or chargeable under this Article, as disoi'ders ov neglects ''to the preju- dice of good order and militar}- discipline:" Drunkenness or drunken and disorderly conduct, at a post or in public, committed l)y a soldier or officer when not "on duty," and when the act (in the case pf an officer) does not more properl}- fall within the description of Art. (31. I, 463, Decemher, 1862; VIII, 366, 2fay, 186.'^; XXIV, 79, Decernher, 1866; XXVIII, 575, 2Iay., 1869. Escape from military confinement or custody (where not amounting to desertion — see S 1057. jMsf.) X, 57-1, November, 186 J^.. Breach of arrest (where not properly chargeable under Art. 65). XXIX, 175, August, 1869. Disclosing a finding or sentence of a court martial in contravention of the oaih prescribed in Art. 81 or 85. XXI, ^'2S. Septemher, 1866. Refusal by an officer or soldier to testif}^, when duly required to attend and give evidence as a witness before a court martial. XLII. 596, Aj}/'!/, 1880. Joining with other inferior officers of a regiment in a letter to the colonel, asking him to resign. XLI, 226, JIfU/, 1878. Neglecting, by a senior officer "present for duty*" with his regiment, to assume the command of the same when properly devolved upon him, and allowing such command to be exercised by a junior. XI, ^See opinion of the Second Comptroller of the Treasury pul)lished in Ciro. No. 3, A. G. 0., 1894. ■^ See par. 7, p. 17, Court-.Martial Manual of 19U1. 54 AKTICLEfl OF WAR. [62 17^, KoreniheVs I8OJ4. Culpable malpractice hy a medical officer in the course of his regular military duty. II, 378, Maij^ 186S. Colluding- with bounty brokers in procuring fraudulent enlistments to be made and bounties to be paid thereon. XIV, 326, May^ 1865. Violations, by an officer, of armj'- regulations,^ in bidding-in and purchasing, through another party, public property sold at auction by himself as quartermaster; also, in purchasing subsistence stores, ostensibly for domestic use, l)ut really for purposes of traffic. XXXIX, 283, Novemhti^ 1877. Causing (by a quartermaster) troops to be trans- ported upon a steamer known by him to be unsafe. XV, 301, June, 186-'. Paying money due under a contract (for military supplies) to a party to whom, with the knowledge of the accused, the contract had been transferred in contravention of Sec. 3737, Rev. Sts. XLII, 44, Xovi'inher, 1878. Inciting (by an officer) another officer to chal- lenge him to tight a duel. XXVIII, HoO, June, 1869. Assuming {hj a soldier) to be a corporal in the recruiting service, and as such enlist- ing recruits and obtaining l)oard and lodging for himself and recruits without paying for same. XXXI X, 229, Ocfoher, 1877. Procuring (by a soldier) whiskey from the post trader by forging an order for the same in the name of a laundress. XXXVII, 270, January, 1876. 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 guar- anteed or approved by the company commander upon the condition that the amounts should be paid on the next paj^-day. XXVII, 282, 8eptt !!)}>,■ i\ 1868; 563, March, 1869; XXVIII, "^298, January, 1869; XXIX, 574, January, 1870. Gaml)ling by officers or soldiers under such circumstances as to impair military discipline (where the conduct, in the case of an officer, does not rather constitute an oflfence under Art. 61). XXXI, 404, 21ay, 1871. Striking a soldier, or using any unnec- essary violence against a soldier — b}' an officer. 39, 25, Fchruary, 1890. Neglect on the part of an officer of engineers to oversee the execution of a contract for a public work placed under his charge, the due fulfill- ment of such charge being a military dut}^.' 31, 357, AprH, 1889. A public criticism in a newspaper, by an officer, of a case which had been investigated by a court martial and was awaiting the action of the President. L. 86, March, 1886. Assuming, by an officer, to copyright as owner, and thus asserting the exclusive right to publish, in an abridged form, the Infantry Drill Regulations, property of the United States, and the formal official publication of which had already" been announced in orders by the Secretary of War. 50, 373, December, 1891; ^ Violations of Army RegnlatioiiH in <;em'ral are properly fharu;eable as neglects (or disorders) to the i)reju(lice of good order and military discipline. ^See Runkle v. U. S., 19 Ct. Cls., 39(5, 411, 412. 62] ARTICLES OB" WAR. 55 62, 15(), ()ctol)('t\ 189S. SeHiniL>- condenined military stores, by an officer, without due notice, and not suspending the sale when better prices could have been obtained by deferring it, in violation of army regu- lations. 50, 44H, I)('C(iiih(t\ 1891. Misconduct by a soldier at target practice, consisting of ])reaches of the pu]>lished instructions, false statements or markings with a view fraudulently to increase a score, &c. 20, 357, Noi^euibc, 1887; 21, 25(5, IkccjJjc}', 1887. Violation, ])y a sol- dier, of a pledge given, to his commanding officer to abstain from intoxi- cating liquors, on the faith of which a previous offence was condoned. 44, 11, Xocciiihtv., 1890. Bigam}-, by a soldier, committed at a military post. 21, 430, Janaanj. 1888. 160. The following acts have been held not to Ije cognizable as offences under this Article: A mere breach of the peace committed by a soldier (wdiile absent alone and at a distance from his post') in a street of a city, and in violation of a nnmicipal ordinance. XXXIII, 277, AtK/vst^ 187'2. Pecuniary transactions ])etween enlisted men of a cul- pable character, but in their private capacity and not directly affecting the service or impairing military discipline. XI, 490, Fihruary^ 18G5; XVIII. 380, ]Srovemht)\ 1865; XXXVI, 480, 2fuy, 1875. Speculating and gambling in stocks by a disbursing officer, the proper performance of whose militar}" duty was not affected. (But rrcoinmended that he l)e relieved from the duty of disl)ursing public money.) XVII, 22, Julij, 1865. Refnlisting by the procurement of the recrvuting officer, after having been discharged for :i disability' still continuing; the act being in good faith, and the alleged offence being committed l)efore the party could be said to have fullv come into the service. VI, 203, Jiuu\ 186Jf. A resort to civil proceedings by suit against a superior officer on account of acts done in the performance of military duty. But held that, if the verdict should be for the defendant, and it should appear that the suit was without prol)a])le cause and malicious, a charge und(>r this Article miglit perhaps l)e sustainable. 48, 3. Jan uanj^ 1891. The mere loaning of money at usurious or excessive rates of interest l)y a nonconmiissioned officer to privates, unless it should clearly be made to appeal* that such conduct promoted desertions or other results prejudicial to the discipline of the command; but as the practice in this case had ])een long continued", and was clearly demoraliziiig, advhed that the noncommissioned officer be summarily discharged. 53, 173, Apr!!, 1892. The liecoming infected, ])v a soldier, with a disease unfitting him for service, as the result of vicious con- duct. 61, 396, Septemher, 1893. ' See 8. O. 206, Dept. Mo., 1895; do. 5, id., 1896, and the order prescribing maximum punishments. Court-Martial Manual (1901), p. 54. 5(> ARTrcLp:s of war. [63 SIXTY-THIRD ARTICLE. All retaiuern to the caiui), and all persons serving with the armies of the United States in the field, though not enlisted soldiers, are to be subject to f)rders, according to the rules and discipline of war. 161. The accepted interpretation of this ^Vrticle is that it subjects (ill (ini(^ of war) the classes of persons specified, not only to military discipline and o-overnnient in g'eneral. hut also to the jurisdiction of courts martial, upon the theory, prol)ahly. that they are thus made for the time being- u purt of the army. Individuals, however, of the class termed '"'' retatncrs to tJic co///j),'' or officers'' servants and the like, as well as camp followers generally, have rarely been subjected to trial in our service. For breaches of discipline committed by them, the piniishment has generally been expulsion from the limits of the camp, and dismissal from employment. XXIII. 331, Noveml)ei\ 1SG6. 162. The discipline authorized by the Article has mainly been applied to the description of ''persons serving with the armies of the United States in the field," — that is to say, civilians serving in a quasi military capacity in connection with troops, in time of war and on its theatre. Thus, during the war of the rebellion, civilians of the fol- lowing- classes were, in repeated cases, held amenable, under this Arti- cle, to the militar}' jurisdiction, and subjected to trial and punishment by courts martial: — Teamsters employed with wagon trains, watchmen, laborers and other employees of the quartermaster, subsistence, engi- neer, ordnance, provost-marshal, &c., departments; ambulance drivers; telegraph operators; interpreters; guides; paymasters' clerks; veter- inary surgeons; "contract"" surgeons; nurses and hospital attendants; conductors and engineers of railroad trains operated upon the thinitre of war for military purposes; officers and men employed on govern- ment transports, &c. VII, 116, Jteh'tiary, ISGJ^; IX, 111, 146, May, ISO J,: XI, 493, March, 1^05; XII, 376, ^farch, 1865; XIII, 459, MdvcJi^ 1805. But the mere fact of employment l)y the govern- ment pending a general war, does not render the civil employee so amenable'. The (Muployment nuist l)e in coiuiection with the army in the field and on the theatre of hostilities. Vll, 453, Septern})ei\ 1863; 511, Apr!!, I86J4.. The forfeitures adjudged by courts martial against such civilian employees shoidd bewithhtdd from their pay and allowed to remain in the appropriation to which such })ay jwrtains. Card 9326, ]^oveirJ)e'i\ 1900. 163. TL'hl (June, 1S63) that the force employed in the "Ram Fleet" on western waters was properlv a contingent of the army rather than of the navy, and accordingly that civilian commander.^, pilots and engi- neers employed upon such fleet during the war and l)efore the enemy, were persons serving with the armies in the field in the sense of this 1)3] ARTICLES ()B^ WAR. 57 Article, and, therefore, amenable to trial ])y court martial. II, 570. June, ISGS. 164. Civil emploj^ees of the United States serving- with the army in the held during- active warfare with hostile Indian tribes, Iwld amena- ble to trial by court-martial under this Article. XXXII, 386, Murch^ 187'2. A civilian who acted as guide to a command operating in a hostile movement during an Indian war, held so triable. XXXVI. 435. J/^/y. 1875. 165. The jurisdiction authorized by this Article cannot be extended to civilians employed in connection with the army in thneof jxHice., nor to civilians employed in such connection during the period of an Indian war but not on the theatre of such war. XXXVIII, 557, xipi'^h 1877. In view of the limited theatre of Indian wars, this exceptional jurisdic- tion is to be extended to civilians, on account of oti'ences committed during such wars, with even greater caution than in a general war. XXXVIII, ()41, June, 1877. 166. Civilians cannot legally be subjected to militar}^ jurisdiction by the authority of this Article after the war (whether general or against Indians), pending which their oti'ences were committed, has terminated. The jurisdiction, to be lawfully exercised, must be exercised during the status belli. XXXVIII, 641," sujyra. 167. A civil empWee of the United States in time of peace is most clearly not made amenable to the military jurisdiction and trial by court martial b}- the fact that he is emploj-ed in an office connected with the administration cf the militaiy branch of the government. Such emplovment does not make him a part of the militarv establishment, nor is his ofi'ence, however nearl}' it may ali'ect the military service, "a case arising in the land forces" in the sense of Article V of the Amendments to the Constitution. So held., that a civilian clerk employed in time of peace in the office of the chief quartermaster at San Francisco was manifestly not amenable, under this Article or other- wise, to trial by court martial for the eml^ezzlement or misapplication of government funds appropriated for the Quartermaster Department.' And remarked that if this official could be made liable to such juris- diction, all the male and female clerks employed in the War Depart- ment might upon the same principle be held thus amenable for oti'ences against the Government committed in connection with their duties. XXXVIII, 559,^lj»v7, 1877. And so held in the case of a civilian clerk employed at Camp Robinson, Nebraska, charged with conspiring with contractors to defraud the United States; the post not being SSee the confirinatorv opinion in tliis case of the Attorney General of May 15, 1878—16 Opins. 13. 58 ARTICLES OF WAR. [63-65 within the theatre of any Indian war or hostilities pending at the period of the otience/ XXXVlll, 641, June, 1877. 168. Held, that superintendents of national cemeteries, being no part of the army, but civilians (see Sec. 4874, Rev. Sts.) were clearly not amenal)le to military jurisdiction or trial under this Article or other- wise." XXXV III, 557, April, 1877. SIXTY-FOURTH ARTICLE. The officers and soldiers of any troops, whether mihtia or others, mustered and in pay of the United States, shall, at all times and in all places, be governed by the articles of war, and shall be subject to be tried by courts-martial. 169. It is a general principle, conlirmed by this Article, that mili- tary oticnces are not territorial.'' So, held that an officer who exhib- ited himself in an intoxicated condition at a public ball in Mexico, though not present in any military capacity, was amenable for hisi offence to the jurisdiction of a court martial in Texas. 48, 52, Jan- uary, 1891. SIXTY-FIFTH ARTICLE. Officers charged with crime shall be arrested and confined in their barracks, cjuar- ters, or tents, and deprived of their swords by the commanding officer. And any officer who leaves his confinement before he is set at liberty by his commanding officer shall be dismissed from the service. 170. The term '•crime'"' is here employed in a general sense, refer- ring to offences of a military character, as well as to those of a civil character which are cognizable b}' court martial.* An offence in vio- lation of this Article is only committed when an officer, contined in "close arrest" to his quarters, leaves the same without authority. VII, 143, Fehriutry. 1861^; XXV, 518, 2fay, 1868. A breach of any arrest, not accompanied by confinement to quarters, would be an offence not within this Article, but under Art. 0:^. V, 122, Octoher, 1863; XI, 127, Nommher, 1861^. 171. Simply disobeying an order to proceed and report in arrest to a certain connnander, lield not an offence chargeable under this Arti- cle. XXXI, 606, Auijud, 1871. 172. "Where an officer in close arrest was permitted by his command- ing officer to leave temporarily his conffnement, Iteld, that his delaying his return, foi' a brief period beyond the time fixed therefor, did not ^See opinion, to a similar effect, of the Attorney General, of June 15, 1878 — 16 Opins. 48. ^See, to the same effect, the (jpinion of the Attorney General referred to in note 1, supra. ■'See Manual for Courts-jNIartial (1901), par. 3, p. 14. * Compare Wolton v. Gavin, 16 Ad. & EL, 66, 68; Simmons, § ofK). 65-68] ARTICLES OF WAR. 59 propei'l}^ constitute an offence under this Article. XXX. 562, August^ 1870. 173. Though any unauthorized leaving of his confinement by an officer in close arrest is, strictly, a ^■iolation of the Article, it would seem, in view of the severe mandatory punishment prescribed, that an officer should not in general be brought to trial under the same unless his act was of a reckless or deliberatel}^ insubordinate charac- ter.^ V, 122, Octobe,', 1S6S; XXVII, 136, Augud, 1868. 174. The requirement of this Article, that an offender "" shall be dismissed,'' is held to be exclusive of any other punishment. A sen- tence of dismissal, with forfeiture of pay, is unauthorized and inop- erative as to the forfeiture, and as to this, should be disapproved. VIII. 296, AjyriL 186.'^. SIXTY-SIXTH ARTICLE. Soldiers charged with crimes shall lie confined until tried by court-martial, or released l)y proper authority. 175. Soldiers held in military arrest, while they may be subjected to such restraint as may l)e necessary to prevent their escaping or committing violence, cannot legally be subjected to any punishment; the imposition of punishment upon soldiers while thus detained has been on several occasions emphatically denounced by department com- manders." XXXI, 597, August, 1871. 176. The word "crimes," as used in this Article, is construed to mean serious military offences. So that a soldier should not ordinarily be '"'■ confined" when not charged with one of the more serious of the military offences — in other words, when charged only with an offence of a minor character. 36, 78, Octohr, 1889; 50, 141, Mvemher, 1891. SIXTY-SEVENTH ARTICLE. No provost marshal, or officer commanding a guard, shall refuse to receive or keep any prisoner committed to his charge by an officer belonging to the forces of the United States; provided the officer committing shall, at the same time, deliver an account in writing, signed by himself, of the crime charged against the prisoner. SIXTY-EIGHTH ARTICLE. Every officer to whose chaj-ge a prisoner is committed shall, within twenty-four hours after such commitment, or as soon as he is relieved from his guard, report in ^ It is no defence to a charge of breat'h of arrest in violation of this Article, that the accused is innocent of the offence for which he was arrested. Hough (Practice), 494; id. (Precedents), 19. * See, for example, the remarks of such commanders in G. O. 23, Dept. of the East, 1863; do. 26, Dept. of California, 1866; do. 23, Dept. of the Lakes, 1870; do. 106, Dept. of Dakota, 1871. And compare remarks of Justice Story in Steere r. Field, 2 Mason, 48(), .^16. 60 AETICLES OF WAR. [68-71 writing, to the commanding officer, the name of such prisoner, the crime charged against him, and the name of the officer committing him; and if he fails to make such report, he shall l)e punished as a court-martial may direct. SIXTY-NINTH ARTICLE. Any officer who presumes, without proper authority, to release any prisoner com- mitted to his charge, or suffers any 2)risoner so committed to escape, shall be pun- ished as a court-martial may direct. SEVENTIETH ARTICLE. No officer or soldier put in arrest shall ]je continued in confinement more than eight days, or until such time as a court-martial can be assembled. 177. Detaining soldiers in arrest for long- and unreasonable periods, when it is practicable to bring them to trial, is arbitrary and oppress- ive, and in contravention l)oth of the letter and spirit of this Article. Whether the delaj^in any case is to be regarded as so far unreasonable as properly to subject the commander responsible therefor to military charges or a civil action, nnist depend upon the circumstances of the situation , and the exigencies of the service at the time. ^ XXX, 405, Jioie, 1S70: XXXT. 5{>T, August, 1871. SEVENTY-FIRST ARTICLE. When an officer is put in arrest for the purpose of trial, except at remote military posts or stations, the officer by whose order he is arrested shall see that a copy of the charges on which he is to be tried is served upon him within eight days after his arrest, and that he is l)rought to trial within ten days thereafter, unless the necessi- ties of the service i)revent such trial; and then he shall be Ijrought to trial within thirty days after the expiration of said ten days. If a copy of the charges be not served, or the arrested officer be not lirought to trial, as herein required, the arrest shall cease. But officers released from arrest, under the provisions of this article, may be tried, whenever the exigencies of the service shall ]>ermit, within twelve months after such release from arrest. 178. Though an officer, in whose case the provisions of this Article in regard to service of charges and trial have not been complied with, is entitled to be released from arrest, he is not authorized to release himself therefrom. If he be not released in accordance with the Arti- cle, he should apply for his discharge from arrest, through the proper channels, to the authority l)v whose order the arrest was imposed, or other proper superior. VII, 163, Fehruar^y^ 1861^; VIII, 01, March^ 1861^; IX, 467, 550, Antember, 1865; XXIV, 387, 580, ^farch and May, 1867. 179. The term "within ten days thereafter," Juld to mean aftei- his arrest. IX, 572, Sejytemher., 186]^. 180. Held a sufficient compliance with the requirement as to the 1 Compare Blake's Case, 2 IVIaule & Sel., 428; Bailey v. Warden, 4 ?W., 400. 71, 72] ARTICLES OF WAR. 61 service of charges, to have served a true copy of the existing charges and specifications, though the list of witnesses appended to the orig- inal charges was omitted (see Charge); and though the charges them- selves were not in sufficient legal form, and were intended to be amended and re-drawn. XXV, 350, Fthruanj^ ISOS. 181. 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 power of arrest in these cases. And where, in such a case, an arrest, considering the facilities of com- munication with the department headquarters and other circumstances, was in fact unreasonabl}" protracted without trial, lu'Id that the officer was entitled to be released from arrest upon a proper application sub- mitted for the purpose. XXXII, 195, 484:, January and April. 1872. SEVENTY-SECOND ARTICLE. Any general officer commanding an army, a Territorial Division or a Department, or colonel commanding a separate Dei:)artment, may appoint general courts-martial, whenever necessary. But when any such commander is the accuser or prosecutor of any officer under his command, 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. 182. This Article specifies by what military officers a general court- martial may be constituted. The President of the United States has the power to order such a court, as the constitutional Commander- in-chief of the Army, irrespective of this Article or other statute.^ XXXIIl, 603, Decmiher, 1872. (See §§ 2038 and 2039, j^o-st-) 183. This Article, in empowering certain commanders to constitute the superior courts martial, makes them the judges in general of the expediency of ordering such courts in particular instances. Except where specially authorized to do so by law or regulation, an officer or soldier can not demand a court-martial in his own case. XXXIV, 413, August, 187 S. 184. Where a commander empowered by this Article to convene 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, his decision should in general be regarded as final. XXXII, 323, Fthruary, 1872. 185. The authority to order a court under this Article is an attribute of conimand. Thus a department conmiander, detached and absent from his command for any 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 ^See Swaim r. U. S., 28 Ct. Cls., 173; and 165, U. S., 553, 559. 62 ARTICLES OF WAR. [72 member of a court or ])oard convened outside his department, for exiimple), is held to be in a status incompatible witli a full and leg-al exercise of such authorit}^ and therefore incompetent during- such aljsence to order a g-eneral court martial as department commander, even though no other officer has been assig-ned or has succeeded to the command of the department/ XLIV, 63, JuJy^ 1880. (See One HUNDRED AND FOURTH ARTICLE.) Nor Can a department commander thus absent, delegate such authority to a stall" officer or other sulwrdi- nate, to be exercised by him. XLIII, 204, 279, March and April ^ 1880 ; Card 14:99, July, 1895. Nor, where a general court martial duly con- vened ])y a department conunander. has, at a time when the commander is thus absent from his command, been reduced, by an incident of the service, ))elow five members, can another member legally be detailed upon the court, by the assistant adjutant general, or other subordinate officer remaining in charge of the headquarters; since such a detnil would be an exercise of a portion of the authority vested l)}^ this Arti- cle in the commander, and which can in no part be delegated. XLIII, dS^, June, 1880. (See Seventy-fifth Article.) 186. It is not essential that the commander who convenes the court- martial for the trial of an officer should sign the charges to make him the "accuser or prosecutor" within the meaning of this Article. Nor is the fact that they have ])een signed by another conclusive on the question whether the convening conunander is the actual accuser or prosecutor. The objection that such commander is such calls in ques- tion the legal constitution of the court, and while, such objection, if known or believed to exist, should regularly be interposed at or before the arraignment, it may be taken during the trial at any stage of the proceedings.^ If not admitted by the prosecution to exist, the accused is entitled to prove it like any other issue. I, 430, JVovember, 1862; VIII, 38, March, 1861^. 187. Whether the conunander who convened the court is to be regarded as the ""^ accuser or prosecutor" in the sense of the Article in question, where he has had to do with the preparing and prefer- ring of the charges, is mainly to l)e determined by his aniiaus in the matter. He may like any other officer hu't/ate an investigation of an officer's conduct and formally prefer, as his individual act, chai'ges against such officer; or by reason of a personal interest adverse to the accused he may adopt practically as his own, charges initiated by 'See G. C. M. O. 9, Dept. of Columbia, 1880; and par. 195, A. R.,as amended l)v G. 0. 20,A. G. O., 1901. (A. R. 218 of 1901. ) ■■^ Or itniay be taken to the reviewinj^ otticer Avith a view to his disapproving; the sentence, or" may be made to the President after the ajji^roval and execution of tlie sentence with a view to having the same declared invalid or to the obtaining of other ai>i)ropriate relief. 72] ARTICLES OF WAR. 63 another; in which cases he is clearly the accuser or prosecutor within the Article. On the other hand, it is his duty to determine when the facts are brought to his knowledg-e, whether an officer within his command charged with a military offence, shall in the interest of dis- cipline and for the good of the service be brought to trial. To this end he may formally refer or revise or cause to be revised and then for- mally referred charges preferred against such officer l)y another; or when the facts of an alleged offence arc communicated to him, ho may direct a suitable officer, as a mem])er of his staff', or the proper com- mander of the accused, to investigate the matter, formulate and pre- fer such charges as the facts may warrant, and having been su1)mitted to him. he may revise and refer them for trial as in other cases; all this he may do in the proper performance of his official duty without becoming the accuser or prosecutor in the case.^ Of course, he can- not be deemed such accuser or prosecutor where he causes charges to be preferred and proceeds to convene the court l^y direction of the Secretary of War or a competent military superior. VII, 5, Janv- anj, 18g\; XIV, 285, March, 1SG5; XXX,"^170, 2Iarck, 1870; XXXII, 78, Octoher, 1871; 278, Jiihj, 1872; XXXIV, 104, FSniary, 1873; XXX VII, 189, Deeemler, 1875; XLII, 626, Maij, 1880; LV, 220, Decemler, 1887; 369, March, 1888; Cards 2240, 2faij, 1896; 3913, March, 1898. 188. But where the officer who made an investigation recommended that charges be not preferred and the department commander never- theless directed that charges be prepared and l)rought the accused officer to trial thereon, held, That such action, taken in connection ' "In a certain sense the commanding general is the prosecntor in nearly every case that comes before a military court -within the limits of his connnand; for in almost every case charges are submitted to his examination, approval, and, if nec- essary, amendment, and there is always an informal preliminary adjudication by him to determine that the case is one which is proper for trial by a court-martial before he orders the court-martial, and the accused to appear before it. It is quite api»arent that in such case he is not an accuser or prosecutor in the sense of the Article of War. * * * He does not alter his position as commanding officer and becomeaccuserorprosecutor in thesense of the * * * Article * * * , because he himself sees that the charges are in jn'oper and definite legal form, and to that extent superintemls their preparation. In the ]iresent case, the charges were not actually signed by General . He had no personal relation to, or knowledge of, the matter out of which the charges grevr, so as to have created in him any personal feeling or interest in the conviction of the j^risoner. In considering alike the question of the propriety of a court-martial and the preferment of charges, he dealt with the matter, as a commanding officer must deal in a large number of instances, upon the state- ments and allegations of others, and decided the matter in his own mind no further than to pronounce that upon the information before him the alleged offender should be l)rought before a court-martial." Opinion of Atlnriiey General Derens, August 1, JS7S, \'nl. 76", ji. 109. It is also held in this opinion that where the record of the trial fails to indicate that the cdiivening officer was the "accuser or prosecutor" of the accused, the latter, in applying to the Secretary of War to have the proceedings pro- nounced invalid 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. 64 ARTICLES OF WAR. [72, 73 with the further fact that official reports previously made by the Department Commander and the nature of the offences alleg-ed manifestly disclosed on his part an interest and aninms adverse to the accused, rendered him the accuser in the case. Card 2240, May^ 1896. 189. The provision 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 hig-her commander,'' being- expressly restricted to general courts, has of course no application to regimental or garrison courts. The same prlnci2)le^ however, should properly ])e applied to proceedings before these courts, if it can be done without serious embarrassment to the service. XXXIV, 353, 598, July and Nommher, 1873; XXXV, 138, January, 1871^; XLIl, 231, ApnJ, 1879. 190. A general court martial, convened b}' the division commander (a major-general), duly acting as department commander in the absence of the regular department commander, is legalh" convened by a general officer commanding a department in the sense of this Article. 26, 418, Se2)teml)er, 1888. 191. A corps commander is held by the Secretary of War, to be a conmiander of an army in the field, and may convene a court-martial under the authority of this Article.' A corps conmmnder may also con- vene such court where the division or separate brigade commander is the accuser or prosecutor, l)v authority of the act of December 24, 1861. VII, 237, Fehrnary^ 18(1/^. But sound principles of public policy require that only the highest milita'T authority in any army should be vested with the final power of the confirmation and execution of sentences of death and dismissal, and the act of December 24, 1861, has never been construed as conferring this power upon a corps comuiandcr when his command is not a separate and distinct army, but only, as in the case of corps of the Army of the Potomac, a constituent part of a larger Ixxly.' XI, 543, j/arc/>, 1865; Card 4710, July, 1898. SE V E NT Y-TI II RD A KTICLE. Ill time of war the connuander of a division, or of a separate brigade of troops, shall he competent to appoint a general court-martial. But when such coininander is the accuser or prosecutor of any person under his coniinand, the court shall be appointed by the next higher connnander. 192. According to the general definition given in the act of March ' This refers to the old ()5th, now the 72d Article, but both contain the expression "a general oliicer coiiiniandiiig an arinv." - I'li.lerdateof August 5, isiis, the Secretary of War decided (circ. 80, A. G. O., 1S98) that "under till' iOTth Article of War a corjis commander is lii'ld to be a commander of an army in the lieM when his corjis is not a constituent i)art of a larger liody and he may * * * contirm sentences of dismissal of otlicers. A corps commander may also convene such I'ourt where the division or separate brigade commander is the accuser or prosecutor." 73] ARTICLES OF WAE. 65 3. 1T99 (Sec. 1114, Rev. Sts.), a division is an organized command con- sisting of at least two brigades, and a brigade an organized command consisting of at least two regiments of infantry or cavalry, A brigade, however, to be a '"' separate hrigade''' 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 discon- nected with an}' division and be operating as a distinct 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, 11th Army Corps," hdd that it was cpiite clear that such colonel did not command a ".se/xt^>' se^ invalidate the proceedings or sentence. XIX, 280, Dtcehiber, 1865; 081, September, 1866. 195. Where the caption of the orders appointing two general courts- martial were respectively, "Headquarters 2d Detachment, Philippine Expedition, Steamer 'China' at sea," and "Headquarters Philippine Island Expeditionary Forces, -Ith Expedition (2d Section), Steamer 'Rio de Janeiro' at sea"", and there being nothing with the records to show that the detachment or section had been designated or was in facta "separate brigade," held that the sentences were void. Cards 4817, Auyust, 1898; 5086, SejJtemher, 1898. 196. Held, that "a military governor of a district" has no authorit}'' as such to convene a court martial. The record of a court martial appointed by such officer under this Article should show that the court wascouA^ened and the sentence approved ))y him in his capacity as a division or separate brigade commander. Cards 7776, 7777, 7778, Mtrch, 1900. 197. Held (January, 1866), that until the status helU had been formally declared to be terminated b}- the President or Congress, such status must be held to be subsisting;^ and that, till such declaration, ^As to the date (or dates) of the legal termination of the civil war, and so of the operation, for the time, of this Article, see §§ 2457, 2458, 2)ost. 73-75] ARTICLES OF WAR. 67 the authority vested by the act of Dec. 24, 1861, ch. 3 (now Art. 73), in commanders of divisions and sepai'ate brigades might lawfully con- tinue to be exercised. XXI, 136, January^ 1866. 198. Held, that sect. 1114, R. S., and the Act of April 22, 1898, taken together prescribe that brigades of infantry and cavalry shall ordinarily, both in peace and war, consist of two regiments, except when in time of war or when war is imminent, it is practicable to oroanize them with three or more regiments each. To this extent only did the act of 1898 modify the existing laws and practice. As to the contrary ruling of the comptroller (Vol. V, 3.5.5), Teinar'ked that the view of the Comptroller of the Treasury as to matters of army administration are not conclusive on the War Department except so far as they are applied to matters within his jurisdiction.^ As to the constitution of a brigade he ma_v hold one wa}^ for the purpose of" fixing pay and the War Department may hold differently for other purposes. Card 8196, May, 1900. SEVENTY-FOURTH ARTICLE. Officers who may appoint a court-martial shall be com])etent to ajipoint a judge- advocate for the same. See judge ADVOCATE. SEVENTY-FIFTH ARTICLE. 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. 199. Under this Article all officers of the active list of the arm}' are eligible to be detailed as memliers of general courts-martial. Chap- lains, though eligible, are not so detailed in practice. XXXVI, 151, 2fay. 1875; XLI, 306, Jidy, 1878. Retired officers, in view of Sees. 1259, 1260, Rev. Sts. , cannot legally be assigned to court-martial duty. 200. But only officers can be so detailed: courts-martial composed in whole or in part of enlisted men are unknown to our law. XLII, 311, May, 1879. So an '" acting assistant surgeon," being a civilian, is not qualified to sit on a court martial. XXII, 512, Decemher., 1866. Though any officer may legally be detailed, it is desirable that no offi- cer should be selected who, from having preferred the charges or other known reason, may be presumed to be biased or interested in the case. XXXIX, 210,'. Octolwr, 1877. 201. Where, in the course of a trial, the number of the members of a general court martial is reduced l)y reason of absence, challenge, or the relieving of members, the court ma}' legally proceed with its busi- ness so long as, /^y.? members — i\iQ minimum (\noY\\i\\ — remain: Other- ^ See § 2302, iwst, and note. 68 ARTICLES OF WAR. [75, 76 wise, where the number is thus reduced below five. XVI, 549, Sep- teml>ei\ 1865. 202. While a number of members less than five cannot be organized as a court or proceed with a trial, the}^ may perform such acts as are preliminarj^ 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 sufiiciency of the objection. V, 319, Novemher., 1863. 203. A court reduced to four members and thereupon adjourning for an indefinite period, does not dissolve itself. In adjourning it should report the facts to the convening authority and wait his orders. He may at any time complete it l),y the addition of a new member or members, and order it to reassemble for business. V, 319, si/jjra; XXXIX, 328, JVovemher, 1877. 204. Where a court, though reduced by the absence of members, 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, 450, May, 1863; VII, 440, April, 186^. 205. An assistant adjutant general, or other staff officer of a depart- ment connnander, is not empowered, of his own authority, in the absence of the commander, to relieve an officer duly detailed upon a court-martial by such commander, any more than he is so empowered to detail a new officer as a member of such a court. XLIII, 332, June, 1880. See Seventy-second Article. 206. It is for the convening authority under this Article to deter- mine what number of officers can be convened without manifest injury to the service, and his decision in the matter is conclusive.^ Ill, 82, June, 1863. 207. Where a court martial is reduced l)elow its original number — thirteen — by a subsequent order relieving a member or members, it is not essential nor has it ever been the practice to state, in effect, in such order that no other officers than those remaining can be convened with- out manifest injurv to the service." XI, 108, Deceinhei\ 186^. SEVENTY-SIXTH ARTICLE. When the requisite number of ofhcers to form a general court-martial is not present in any post or detachment, the commanding officer shall, in cases which reciuire the ^ It was thus held from an early period by the U. S. Supreme Court. See ]\Iartin V. Mott, 12 Wheaton, 19, 34-37 (1827) ; Mullan v. U. S., 140 U. S., 240; Swaim v. U. S., 165 U.S., 553, 559. ■■* While the order convening a general court-martial of less than thirteen members usually contains the statement that "no other ollicers" (or "no greater number" ) "than tho.se named can be asseml)led without manifest injury to the service," such statement is not essential to the vaHdity of the proceedings. 76-79] ARTICLES OF WAR. 69 cognizance of such a court, rej^ort to the commanding officer of the department, wlio yhall thereupon order a court to be assembled at the nearest post or dei)artment at which there may be .«uch a requisite number of officers, and shall order the party accused, with necessary witnesses, to be transported to the place where the said court shall be assembled. SEVENTY-SEVENTH ARTICLE. Officers of the Regular Army shall not be competent to sit on courts-martial to try the officers or soldiers of other forces, except as provided in Article 78. 208. Although officers and soldiers of volunteers, not being militia, ai"e as much a part of the Army of the United States as are regular officers (see § 2-t-l:-J:, jjost), 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 volun- teer 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, Jidi/, 1866. 209. As the act "'"to provide for temporarily increasing the military establishment of the United States in time of war,"' approved April 22^ 1898, declares that the army of the United States in time of war shall consist of both the regular arm}" and the volunteer army, held that such volunteer arm}" is not with respect to the regular army ''other forces" within the meaning of this Article, and that therefore officers of the regular army are competent to sit on courts -martial for the trial of officers or soldiers of such volunteer armv.^ Cards 4457, 4480, Jitne^ 1898. SEVENTY-EIGHTH ARTICLE. Officers of the Marine Corps, detached for service with the Army by order cf the President, may be associated with officers of the Regular Army on courts-martial for the trial of offenders belonging to the Regular Army, or to forces of the INIarine Corps so detached; and in such cases the orders of the senior officer of either corps who may be present and duly authorized, shall be obeyed. SEVENTY-NINTH ARTICLE. Officers shall be tried only by general courts-martial; and no officer shall, when it can be avoided, be tried by officers inferior to him in rank. 210. 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 convening order) upon this point, as u])()n that of the number of members to be detailed, is conclusive.* Ill, 8i>, June, 1863; LVI, 604, Septemher, 1888. 211. At the opening of a trial by court martial it was objected by the accused that nine of the thirteen members as detailed were his * See this opinion published in circular 21, A. G. O., 1898. * See § 206, ante, and note. 70 ARTICLES OF WAR. [79-81 inferiors in rank, and tiiat the detailing- of such inferiors could have been "avoided" without prejudice to the service. Held that the objection was properly overruled b}' the court. Whether such a detail "can be avoided" is a question to be determined by the con- vening authority alone, and one upon which his determination is con- clusive. ^ LVl, 604, Septemher, 1888. EIGHTIETH ARTICLE.^ In time of war a field officer may be detailed in every regiment to try soldiers thereof for offenses 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. EIGHTY-FIRST ARTICLE. Every officer commanding a regiment or corps shall, subject to the provisions of article eighty, be competent to appoint, for his own regiment or corps, courts- martial, consisting of three officers, to try offenses not capital. 212. Held that the Chief of Engineers was authorized to order a court under this Article for the trial of soldiers of the engineer bat- talion; the same, in connection with the engineer officers of 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, Deceml)ei\ 1866. So held that the Chief of Ordnance was author- ized 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 constitute, with the ordnance officers, such a separate and distinct branch of the military establishment as to come within the general designation of "corps" employed in the Article. XXXVIII, 546, April, 1877. So held that the Chief Signal Officer, under the provi- sions of the acts of July 24, 1876; June 20, 1878, &c., relating to his branch of the service, was authorized to order courts martial, as com- manding a "corps" in the sense of this Article.^ XXX, 509, Jidy., 1870. 213. Under par. 898, Army Regulations of 1861, it devolved upon a department commander to supervise the proceedings of regimentiil and garrison courts martial transmitted to his headquarters, and if he discovered any material error, defect or omission in a record or in the action taken in the case by the inferior commander, to l)ring the same to his attention. The latter could then proceed (in case of an absolute illegality) to issue an order declaring the sentence void, or (in case of ^ See authorities cited in note to § 206, ante; but see § 240, poKt. "Repealed by sec. 2 of the act of June 18, 1898, establishing the summary court. ^See Manual for Courts Martial (1901), par. 2, \). 11. 81, 82] ARTICLES OF WAR. 7l a defect of a material character) to remit the punishment so far as not executed/ XXXV, 174, Fehruary, 187 1^. EIGHTY-SECOND ARTICLE. Every officer commanding a garrison, fort, or other place, where the troops consist of different corps, shall, sul)ject to the provisions of article eighty, be competent to appoint, for such garrison or other place, courts-martial, consisting of three officers, to try offenses not capital. 214. It is not essential that the "officer commanding" should be of the rank of held 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, May^ 186^. 215. A commanding officer is not authorized to detail lum8c\f\ with two other officers, as a court under this, (or the preceding,) Article. XXIV, 263, January^ 1867. An "acting assistant surgeon," not being an officer of the army, cannot be detailed on such court. XXX, 109, February., 1870. 216. The general term "other place," is deemed to be intended to cover and include any situation or locality whatever — post, station, camp, halting-place, &c., at which there may remain or be, however temporarily, a separate command or detachment in which different corps of the army are represented, as indicated in the next paragraph. If such command, so situated, contains enough officers, other than the commander, available for service on court martial, the commander will be competent to exercise the authority conferred by this Article. XLIV, 32, Jmie, 1880. 217. Held, in view of the early orders" relating to the subject and of the practice thereunder, that the presence on duty with 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 representa- tive, officer or soldier, of a corps, arm, or branch of the service other than that of which the Ijulk of the command is composed, — as an officer of the quartermaster, subsistence, or medical department, a chaplain, an ordnance sergeant or hospital steward, an officer or soldier of artil- lery where the command consists of infantry or cavalry, or r/tv ve?'sa, &c., — might be deemed sufficient to fix upon the command the char- acter of one "where the troops consist of different corps," in the sense of this Article, and to empower the commanding officer to order a ^ The paragraph of regulations cited was omitted from the regulations of 1889 and subsequent editions; Vmt independently of any regulation on the subject, department commanders, in practice, properly exercise a supervision over the records of inferior courts-martial transmitted to their headquarters, to the extent indicated in the text. ^The original order is G. O. 5, Hdqrs. of Army, 1843. And see the law as announced later in G. O. 13, Fourth Mil. Dist., 1867.' 72 ARTICLES OF WAR. [82, 83 court martial under the same. VII, 174, February^ 1861^.; XIV, 48, Fehruanj. 1865; XXI, 118, December, 1805; XXVI, 254, Decemher, 1867. The presence, however, with the coniniand, of a chrll employee of the army (as an "acting assistant surgeon''), could have no such effect. Vlil, 483, May, 1861^. 218. Where, after a garrison court had tried the cases referred to it but before its proceedings had been acted upon, the command of the post was devolved upon the officer who had been president of the court, Jidd that such officer would legally and properly act upon the proceedings; the case not being one in which the action of the depart- ment or other higher commander was required b}' the lOyth Article of war. XLIIl, 268, 31arch, 1880. EIGHTY-THIRD ARTICLE. Regimental and garrison courts-martial, and field-officers detailed to try offenders, shall not have 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 ahy non-commis- sioned officer or soldier for a longer time than one month.' 219. Capital offences {i. e., offences capitally punishable), not being within the jurisdiction of inferior courts, such courts cannot take cognizance of acts speciticalh' made punishable by Art. 21, however slight be the offences actually committed." II, 189, ^j9n7, 1863; XI, 210, December, 1861,.; XXIV, ^95, January, 1867; XXVI, 533, Ajyril, 1868; XXVIII, 53, A'ujast, 1868; XXXII, 334. February, 1872. 220. 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, 401, Noi-nnbvT, 1869. 221. A sentence, adjudged ])v a garrison court, of confinement, " till the expiration of the term of service " of a soldier, held unauthorized unless the soldier had not more than one month left to serve. XXVII, 483, January, 1869. ^Amended March 2, 1901, to read as follows: "Regimental and garrison courts- martial and summary courts detailed under existing laws to try enlisted men shall not have i)0\ver to try capital cases or conmiissioned officers, hut shall have power to award punishment not to exceed confinement at hard lalxjr for three months or for- feiture of three months' pay, or both, and in addition thereto, in the case of non- commissioned officers reduction to the ranks and in the case of first-class privates reduction to second-class i)rivates: Prorided, That a sunnnary court shall not adjudge confinement and forfeiture in excess of a period of one month, unless the accused shall before trial consent in writing to trial by saiil court, but in any case of refusal to so consent, the trial may be ha(l cither l)y general, regimental, or garrison court- martial, or by said summary court, but in case of trial by said summary court with- out consent as aforesaid, the court shall not adjudge confinement or forfeiture of pay for more than one month." '' G. O. 21, Hdqrs. of Army, 1858. And see G. 0. 18, War Dept., 1859; do. 9, Dept. of Utah, 1858, where the j^roceedings of garrison courts in cases of capital offences are pronounced void. 83, 84] ARTICLES OF WAR. 73 222. The limitation of the authority of inferior courts in regard to sentences of imprisonment and line, held not to preclude the imposi- tion 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 expressh' mentioned.^ XXX, 667, Octoher, 1870; XLIV, 659, January, 1882; Card 1397, Sej)- temler, 1895. 223. The limitations imposed b\^ 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 several penalties of forfeiture and imprison- ment, or of either, exceeding tog-ether the limit affixed by the Article for a single sentence."^ XXXI, 3, Fehruary, 1870. 224. While inferior courts have, equall}' with general courts, ,7?/;v'6'- diction of all military offences not capital, committed by enlisted men, yet, in view of the limitations upon their authority to sentence, it is in general inexpedient to resort to them for the trial of the graver offences, — such as larcenies, aggravated acts of drunkenness, pro- tracted absences without leave, &c., a proper and adequate punishment for which would be beyond the power of such tribunals. The more serious offences should, where practicable, be referred for trial to general courts which alone are vested svith a full discretion to impose punishment in proportion to the gravity of the offence. VII, 36, 207, January and February, 1861^; XI, 210, December, 1861^; XVI, 2>\^.June, 1865; XXVI, 487, 533, J/r//'c// and .l;//v7, 1868; XLII, 33, Noveiiiber, 18'/8. An inferior court cannot, however, legally decline to tr_y or sentence an offender on the ground that it is not empowered under this Article to impose a punishment adequate to his actual offence. XXVIII, 57, August, 1868. EIGHTY-FOURTH ARTICLE. The judge-advocate shall administer to each member of the court, before they pro- ceed upon any trial, the following oath, which shall also be taken by all mem))ers 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 partialit)', favor, or affection, according to the provisions of the rules and articles for the government of the armies of the United States, and if any doubts should arise, not explained by said articles, 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 ^See Manual for Courts-Martial (1901), p. 74, par. 13. The summary court act approved June 18, 1898, specifically recognizes and authorizes reduction to the ranks as a punishment by such com-t. See also, amended 83d Article, note 1, ante. ^See G. 0. 18, War Department, 1859. 74 ARTICLES OF WAR. [84 be published by the proper authority, except to the judge advocate; neither will you disclose or discover the vote or opinion of any particular 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." 225. 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 specified, the court is not c|ualified "to try and determine." XXXVIII, 190, July, 1876. The arraign- ment of a prisoner and reception of his plea — which is the commence- ment of the trial — before the court is sworn, is without legal effect. IX, 293, June, ISGJ^; XI, 323, Decemher, 1861,.. The Article requires that the oath shall be taken not b}^ the court as a whole, but by "each member." Where, therefore, all the members are sworn at the same time, the judge advocate will preferably address each member by name, thus ^^ you A. B. , C. D. , E. F. , &c. , do swear," &c. XIII, 483, 2Jarch, 1865. A member added to the court, after the members originally detailed have been duly sworn, should be separately sworn by the judge advocate in the full form prescribed by the Article; otherwise he is not qualified to act as a member of the court. X, 563, JS'ovtrn'her, 186 Jf.; XIV, 350, April., 1865. A member who prefers it may be afiirmed instead of sworn." II, 562, June, 1863. 226. The memliers are sworn to try and determine the matter hefore them at the time of the administering of the oath. In a case, there- fore, where, after the court had been sworn and the accused had been arraigned and had pleaded, an additional charge, setting forth a new and distinct offence was introduced into the case, and the accused was tried and convicted upon the same; — held that, as to this charge, the proceedings were fatally defective, the court not having been sworn to try and determine such charge.^ XXIV, 513, May, 1867. 227. Where the vote of each member of the court upon one of sev- eral 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 proceed- ings or sentence. II, 59, March, I860. A statement in the record of trial to the effect that all the members concurred in the finding or in ^The words "a court of justice" are deemed to mean a civil or criminal court of tlie United States, or of a State, &c., and not to include a court martial. A case can hardly be supposed in which it would become proper or desirable for a court martial to intiuire into the votes or opinions given in closed court by the members of another similar tribunal. The only case which has been met with 'in which the members of a court martial have been required to disclose their votes by the process of a civil court, is that of In re Mackenzie, 1 Pa. Law J. R. 356, in which the members of a naval court martial were compelled, against their objections, to state their votes as given upon the findings at a particular trial. In the present corresponding British Article, the words "or a court martial" are added after the words "a court of justice." ^SeeSec. l,Kev. Sts. ^See G. C. M. 0. 39, War Dept., 1867; G. 0. 13, Northern Dept., 1S64. 84-8 (>] ARTICLES OF WAR. 75 the sentence, while it does not vitiate the proceedings or sentence, is a direct violation of the oath prescribed by this Article. II, 76, Marcli.^ 1803; VII, 3, JairiKinj, ISG.'^. 228. The object of the secrecy in regard to the vote of a member is to place him, when voting-, beyond the reach of influences w^hich might induce him to act contrary to his judgment on the merits of the case. 63, 263, Jannary. ISD'^. 229. The disclosing of the finding and sentence to a clerk b}^ per- mitting him to remain with the court at the final deliberation and enter the judgment in the record, is a violation of the oath and a grave irregularity, though one which does not afl'ect the validity of the pro- ceedings or sentence. XXVIII, 146, Octohei^ 1868. EIGHTY -FIFTH ARTICLE. When the oath has been administered to the members of a court-martial, the presi- dent of the court shall administer to the judge-advocate, or person officiating as such, an oath in the following form: " You, A B, do swear that you will not disclose or discover the vote or opinion of any particular member of the court-martial, unless required to give evidence thereof, as a witness, by a court of justice, in due course of law; nor divulge the sentence of the court to any but the proper authority, until it shall be duly disclosed by the same. So help you God." EIGHTY-SIXTH ARTICLE. A court-martial may punish, at discretion, any person who uses any menacing words, signs, or gestures, in its presence, or who disturbs its proceedings, by any riot or disorder. 230. The power of a court martial to punish, under this Article, being contined practically to acts done in its immediate presence,^ such a court can have no authority to punish, as for a contempt, a neglect by an officer or soldier to attend as a witness in compliance with a sum- mons.- V, 172, Octohtr, 1863. 231. A court martial has none of the common-law power to punish for contempt vested in the ordinary courts of justice, but only such authority as is given it by this Article. Thus held that a court-martial was not authorized to punish, as for a contempt, under this Article (or otherwise), a civilian witness duly summoned and appearing before it, but, when put on the stand, declining (without disorder) to testify.' XLII, 595, April, 1880; XLIX, 30G, August, 1885. ' It was held by the Secretary of AVar in the case of Lt. Col. Backenstos — G. O. 14, War Dept., 1850, — that a court martial had, under this Article, no power to punish its own members. ^ As to the power of courts of iinjuiri/ to punish for contempt, see note to One hun- dred AND EIGHTEENTH ARTICLE, p, 107, JlOst. ^ By sec. 1 of the act of IMarch 2, 190i, "to prevent the failure of military justice," &c., provision is made for the punishment by civil authority of civilians refusing to appear or testify before general courts-martial. 7(5 ARTICLES OF WAR. [8(1-88 232. The authority of the judge-advocate (under sec. 1202, Rev. Stats.) to issue "" like process to compel witnesses to appear and testify which courts of criminal jurisdiction within the State, Territory, or district where such militar}' courts may be ordered to sit, may lawfully issue," does not vest the court martial with power to punish a civilian witness for contempt who refuses to testify. XLIX, Hoti. Augnst^ 1885. 233. AVhere a contempt within the description of this Article has been committed, and the court deems it proper that the offender shall be punished, the proper course is to suspend the reg-ular business, and after giving the party an opportunity to be heard, explain, &c.,^ to proceed — if the explanation is insufhcient — to impose a punishment; resuming thereupon the original proceedings. The action taken is properly summary, a formal trial not being called for. Close confine- ment in quarters or in the guard house during the trial of the pending case, or forfeiture of a reasonable amount of pay, has l)een the more usual punishment." XXX, 361, 570, 2fay and Au(/>/sf, 1870. EIGHTY-SEVENTH ARTICLE. All members of a court-martial are to behave with decency and calmness. EIGHTY-EIGHTH ARTICLE. Members of a court-martial may be challenged by a prisoner, but only for cause stated to the court. The court shall determine the relevancy and validity thereof, and shall not receive a challenge to more than one member at a time. 234. This Article authorizes the exercise of the right of challenge before all courts except field ofiicers' courts and summary courts.'' These courts are not subject to be challenged, because, being com- posed of but one member, there is no authority provided which is competent to pass upon the validity of the challenge. XI, 210, Decem- 1h-i% 186J^. 235. It is ordinarily a sufficient ground of challenge to a member that he is the author of the charges and is a material witness in the case. II, 581:, June, 1863; XX, 18, Octohe)', 1865; XXXI, 210, March, 1871; XXXYII, 43, Septemher, 1875; 315, February, 1876; XXXIX, 2-10, October, 1877. The mere fact that he is to be a witness is not in general to be held suflicient. II, 584, supra; XXXIII, 137, July, 1872. ' See G. C. M. O. 37, Fourth Mil. Dist., 1868. ■^ Instead of jiroceeding against a military person for a contempt in the mode con- temi)lated 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. 62. Compare Samuel, 634; Simmons, § 434. The latter course has not unfrequently been adopted in our practice. •' Manual for Courts-Martial (1901) , page 27, note 3. 88] ARTICLES OF WAR. 77 236. The mere fact that a member sig-ned or formal!}^ preferred the charges is not sufficient ground of objection, since he may have done so ministerially or by the order of a superior. IX, 258, June^ 180 J^. But whei'e 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, he is properly subject to challenge. XXXIII, 204, July, 1872; XXXVII, 315, February, 1876. Thus, that a mem- ber had originated and preferred the charge for a disobedience of his own order, was held good cause of challenge. XXXVI, 257, Fd)- ruary, 1875. 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 witness, was a member of the court, was held to constitute complete cause of challenge to him as member. XXXIII, 257, August, 1872. 237. That a member is the regimental or company commander of the accused does not, j)'^'" ^''-'i constitute sufficient ground of challenge. But such ground may exist where the commander has preferred the charges, or where the relations between him and the accused have been such as to give rise to a presumption of prejudice. VII, 634, June, 186 J^; XXII, 631, March, 1867. 238. Where a member, before the trial, had expressed an opinion, based upon a knowledge of the facts, that the accused would be con- victed whichever way he might plead, held that he had clearly pre- judged 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.' XXXVII, 491, April, 1876. 239. A member, on being challenged for prejudice, 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 prejudiced for or against him. Held, especially as one of the charges was "conduct unbecoming an officer and a gentleman," that the challenge was improperly overruled by the court. XXIV, 584, Ifarch, 1867. 240. 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 promotion if the accused is dismissed. It is however a sufficient cause of challenge to a member, that, if the accused (an officer) be convicted and sentenced to be dismissed, the member will be forthwith entitled to promotion. XXXIII, 137, July, 1872; XXXVII, 189, Becemher, 1875; XXXVIII, 366, 376, October ?indi November, 1876; LV, 220, December, 1887. ^ See G. C. M. O. 66, Hdqrs. of Army, 1879. 78 ARTICLES OF WAR. [88 241. Held sufficient ground of challenoe to a member of a court martial, that he has previously taken part in an investigation of the same case before a court of inquiry, though such court did not express a formal opinion. XXIII, 406, Aj^ril,, 1867. 242. Held good ground of challenge to a member of a court martial, in a case of alleged theft hy a soldier, that such member had been a member of a board of survey which had investigated the case and lixed the misappropriation of the property upon the accused. XXXVI, 599, July, 1875. 243. Held that the members of a court martial who had composed a previous court by which the same accused had been tried for the same act though under a different charge, w^ere all subject to be set aside on challenge. XXVIII, ISl, Octoher, 1868. 244. It is not necessary (though usual and proper) for a member to withdraw from the court room on being challenged and pending the deliberation on the ol)jection. V, 99, October., 186S. 245. Courts should be liberal in passing upon challenges, but should not entertain an objection which is not sj)ecljic, or allow one upon its mere assertion b}^ the accused without proof, and in the al^sence of any admission on the part of the member.^ XXIV, 584, 2fay., 1867; XXXVI, 578, July, 1875. A positive declaration by the challenged member to the effect that he has no prejudice or interest in the case, will, in general, in the absence of material evidence in support of the objection, justify the court in overruling it. XVII, 405, Septeinher, 1865. 246. Where, before arraignment, the accused (an officer), without having personal knowledge of the existence of a ground of challenge to a member, had credible information of its existence, held that he should properly have raised the objection before the members were sworn, and that the court was not in error in refusing to allow him to take it at a subsequent stage of the trial. XLI, 414, Sepfcmher, 1878. 247. 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 overruled by the court, can affect in no manner the validit}" in law of the proceedings or sen- tence, though it may sometimes properlj^ furnish occasion for a dis- approval of the proceedings, &c. , or a remission in whole or in part 'See G. C. M. 0. 66, War Dept., 1875. The challenge, the allowance of which by the court in Gen. Twiggs' ca,se was disapproved m (t. O. 4, War Dopt., 1858, was Sinii^ly a general objection to the member by the accused on account of "some Unpleasant circumstances growing out of their oflicial i'elati(Mis;" no sjiecitic allega- tion of bias being made, and the member himself expressly disclaiming any feeling of i)rejudice. 88] ARTICLES OF WAR. 79 of the sentence.^ VIII, 534, June, 1861^; IX, 2^^,Juve, ISGJ^.; XX, 18, Odoher, 1865; XXXVII, 315. 491, Fehrunry and AprU, 1876; XXXIX, 240, Octoher, 1877. 248. The Article imposes no limitation upon the exercise of the right of challenge other than that the challenge shall be for "cause stated," and that more than one member shall not be challenged at a time. Thus while the panel, or the court as a whole, is not sul)ject to chal- lenge, yet all the meml^ers may be challenged provided they are chal- lenged 'separately. XXVIII, 632, May, 1869; XXX, 361, 3fatj, 1870; XXXVIII, 53, llanuary, 1876. The Article contains no authority for challenging the judge advocate. XXXV, 618, Octoher, 1874- 249. The Court, of itself, cannot excuse a member, in the absence of a challenge. A member, not challenged, but considering himself dis- qualitied, can be relieved only by application to the convening author- ity.'' XXXVII, 34, Sejjtemher, 1875. 250. An accused challenged the entire court on the ground that the convening officer was ^ accuser." Held properly overruled: the army cannot be challenged at military law. The Article declares that "the court * * * shall not receive a challenge to more than one mem- ber at a time." LIII, 225, April, 1887. 251. A court-martial cannot relieve or "excuse" a member except upon a challenge dulj" interposed and sustained under this Article. The fact that a member has been absent from a session of the court, and has not heard the testimony meanwhile taken, constitutes no legal ground for excusing him l\v the court, provided such testimonj'^ is read to him and no objection to his continuing as a member in the case is interposed b}'' the accused.^ LI, 540, Fehniary, 1887. 252. An accused objected to a member on the ground that some time before he had had a disagreement with the member and thought that he ^See Opinion of the Attorney General of January 19, 1878 (15 Opins. 432), in which the opinion, expressed 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 charges upon which the accused was convicted was preferred by a member of the court who also testified as a witness on the trial (l)ut who, though clearly subject to objection, was not challenged by the accused), could not affect the validity of the sentence of dismissal after the same had been duly confirmed — is concurred in ])y the Attorney (lencral. And, to a similar effect, see Keyes v. United States, 15 Ct. Cls., 532. In G. C. INI. O. 88, Dept. of Dakota, 1878, the point is noticed that where a chal- lenge interposed by the accused has been improperly disallowed, a subsequent plea of guilty is not to be treated as a tvaiver of the advantage to w^hicli he may be entitled bv reason of the improper ruling. " ■■' S. 0. 19, Dept. of Colo. , 1896. ^The practice here indicated no longer obtains — see par. 4, p. 28, Manual for Courts- INIartial (1901), which prescribes that "no member who has been absent during the taking of evidence shall thereafter take part in the trial;" but that "this provision shall not l)e construed as invalidating the proceedings of courts martial when not complied with and no objection is made, but is to be regarded as' a requirement which should always be com2)lied with when practicable." 80 ARTICLES OF WAR. [88-91 '"might be prejudiced." The member declared that he was conscious of no prejudice whatever, but that, on the contrary, his feelings toward the accused were friendly. ILld that the court erred in sustaining the chtdlenge. LIII, 22.\ Apr'>K 1SS7. 253. The accused were Indian scouts charged with mutiny. Some of the members of the court, though disclaiming any prejudice against the accused personally, were aware that they were present at the outbreak, and were fully apprized, from their own personal presence or knowl- edge of the circumstances, that the nuitiny, which had involved homi- cide, constituted a most aggravated offence of the class. Held that, as these members could scarcely avoid apph'ing their impressions to the accused, when shown to be connected with the disorder, they would fairly have been subject to ol)jection as triers. LV, 520, Ajynl., 1888. 254. A mere general opinion in regard to the impropriet}" of acts such as those charged against the accused, unaccompanied by any opinion as to his guilt or innocence on the charges, is not a sufficient ground of objection under this Article. 64, 174, 2LircJi^ 1894- 255. Under the custom of the service the Judge- Advocate may also challenge for cause. Card 2059, Fchrucvry^ 1896. EIGHTY-NINTH ARTICLE. When a prisoner, arraigned lief ore a general court-martial, from obstinacy and deliberate design, stands mute, or answers foreign to the purpose, the court may ])ro- ceed to trial and judgment as if the prisoner had pleaded not guilty. NINETIETH ARTICLE. The judge-advocate, or some person deputed by him, or by the general or officer commanding the Army, detachment, or garrison, shall prosecute in the name of the United States, but when the prisoner has made his plea, he shall so far consider himself counsel for the prisoner as to object to any leading question to any of the witnesses, and to any question to the prisoner the answer to which might tend to criminate himself. NINETY-FIRST ARTICLE. The depositions of witnesses residing beyond the limits of the State, Territory, or District in which 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. 256. A deposition i-annot l)e read in evidence in a capital case (that is, in a case Avhere the offence charged is punishable capitally) — as in a case of a violation of Art. 21, or a case of a sp}', or one of desertion in time of war: otherwise in a case of desertion in time of peace. Ill, 485, Augmt, 1863; IX, UQ, S<'2>teinler, 1861^; XXXII, «;, June, 1871; XLII, ilT, 361, February and July, 1879. Nor is the deposition 91] ARTICLES OF WAR. 81 admissible of a witness who resides in the State, &c., within which the court is helcP (XLII, 361, supra), except by consent of the parties.^ Card 1S29, jyovemher, 1895, 257. Where the evidence of high otiicers or public officials — as a department commander, or chief of a bureau of the War Department — is required before a court martial, the same, especially if the court is assembled at a distant point, should be taken by deposition, if author ized under this Article. Such officers should not be required to leave their public duties to attend as witnesses, except where their depositions will not be admissible, and where the case is one of special importance and their testimony is essential, VII, 5, January,, ISG]^.. The Secre- tary of War should not be required to attend as a witness, or to give his deposition in a militar}^ case, where the chief of a staff corps or other oificer, in w^hose 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, 50,5, July,, 187 J^. 258. The party at whose instance a deposition has been taken, should not be permitted to introduce only such parts of the deposition as are favorable to him or as he may elect to use: he must offer the deposi- tion in evidence as a whole or not offer it at all. XXXVI, 236, Feb- rxKvry, 1875. 259. If the party 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) without the consent of the other, XXXVII, 9, Fehru- (rry, 1875. 260. JIdd that the deposition of a witness residing in a foreign country, and taken before a tiualitied person, as an American consul, would be admissible in evidence under this Article equall}^ with the dc[)osition of a resident of the United States. XLII, 114, Janvary., 1870. 261. Where the judge-advocate offered in evidence, on the part of the prosecution, a deposition which proved to have been given by a person other than the one to whom the interrogatories were addressed, and the accused objected to its inti'oduction. but the objection was overruled by the court, htld error; 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, 140, January., 1879. ^Note the remarks of the reviewing anthoritj- in G. C. 31, O. 102, Dept. of the East, 1S71; do. 1, Division uf Soutli, ISZo. 'See Manual for Courts-Martial (1901), note 1, p. IGl. » See G. C. M. O. 9, Hdqrs. of Army, 1879. 16906—01 6 82 ARTICLES OF WAR. [91 262. This Artich". in any case within its terms and in which its condi- tions are complied with, entitles either party to have depositions taken and "read in evidence." The court alone has no power to decide that a deposition, where legal and material, shall not l)e taken. ^ 48, 59, J>uu\ 1891; Card 0739^ July, 1899. 263. A deposition, introduced b}^ either partv, which is not "duly authenticated,'' should not be admitted in evidence b}- the court, although the other party may not ol)iect. 34, 75, July. 1889. A deposition JieJd irregular and inadmissible where it failed to show that the officer by whom it was taken was authorized to take it, or that he was qualified to administer the oath to the witness. 14, 285, January^ 1887. 264. The Article, in specifying that the deposition, to be admissible in evidence, shall be "duly authenticated," makes it essential that the same shall be sworn to before, i. e. taken under an oath administered by, an official competent to administer oaths for such purpose. A deposition should now be sworn to before one of the militar}' officers specified in the act of July 27, 1892, s. -1, or, if such an officer be not accessible, by a civil official competent to administer oaths in general. An official, empowered to administer oaths only for a certain special purpose or purposes, can not legall}' qualify a witness whose deposition is sought to be taken under this Article. 34, 75, July, 1889; 57, 61, neccniher, 1892. 265. A court-martial has no power to quality or authorize a com- manding officer, or an}^ other officer or person, to take a deposition or administer an oath. LY, -±80, March, 1888. 266. A deposition is not in general satisfactory evidence for pur- poses of personal identification by description, and should not be resorted to for the identification of an accused where reliable oral testimony can be obtained. 60, 339, Ju/y, 1893. 267. The depositions of civilian witnesses, while their taking gen- erall}^ involves less expense than would the personal attendance of the parties, are usually quite sufficient as testimony, except when the pur- pose of the evidence is to personally identify the accused before the court. 64, 4(56, Hay, 189J,. 268. Where a deposition, introduced by the |)r()secution, though legal, was incomplete, ))ut the defect was waived by the accused, held that the prosecution was estopped fi'om afterwards (juestioning it as competent evidence. LI, 500, Fthruary, 1887. 269. The officer detailed to have a deposition taken, /. e., to sec to ^ Where, however, the matter has been submitted to the court, it might in a proper case decide that oral testiiiionv alone would answer. 91, 92] AETICLES OF WAR. 83 its being- taken, should, liefore serving the subpoena, complete it, if necessary, by insei'ting the name and official desio-nation of the notary (or other official having authority to administer the oath), before whom it is to be taken, and the date on which and the place where it is proposed to take it. And when the deposition has l>een duly taken, he should certify it as so taken, and transmit it in a sealed package to the president of the court. 65, 57, May^ ISOJf. 270. Civilian witnesses who duly give their depositions under this Article arc entitled to the same fees and allowances as are witnesses who duly attend the court in person.^ The voucher, to enable such a witness to obtain his dues, should simply set forth the facts as to his service, substituting, for the usual statement in regard to attendance before the court, a statement that he duly attended as a witness at a certain time and place, and duly gave his deposition before a certain official named. 64, 33f), A2rr!J. 1894. 271. J/eJd that a sum of three dollars, disbursed by an officer ordered to procure a deposition to l)e taken, as a payment to a justice of the peace before whom the deposition was given, would legally be reiml)ursed, on the presentation of a proper voucher, by the quarter- master department, out of the appropriation for the expenses of witnesses before courts-martial. 64, (>(», Fehruarii^ 1^9 4. 272. A deposition duly taken, under the Article, on the part of the prosecution, is not subject to ol^jection h\ the accused, and cannot be rejected by the court, merely upon the ground that it is declared in the Vlth Amendment to the Constitution that — "'in all criminal pros- ecutions the accused shall enjoy the right * * * to be confronted with the witnesses against him." This constitutional provision has no application to courts martial: the "criminal prosecutions" referred to are prosecutions in the U. S. civil courts. LIT, 118, March, 1887; LV. 4S«:)-41>3, March, 1888; 44,351, December, 1890; 52, 2()-^.Fehrnary, 1892; 55, 493, October, 1892. 273. The provisions of Sees. 866-870, Rev. Sts., relate to depositions in the U. S. courts and have no application to courts martial which are no part of the U. S. judiciar3\ Held therefore that there was no authority whatever for prescribing, as was done in G. O. 2, Dept. of Texas, 1888, that the laws of Texas in regard to the taking of deposi- tions >^nould govern depositions in military courts held within that State. LV, 486, 586, March and May, 1888. NINETY-SECOND ARTICLE. All persoiiH who give evidence before a court-martial shall be examined on oath, or affirmation, in the following form: "You swear (or affirm) that the evidence you iSeeCirc.9,A.G.O.,1883. 84 ARTICLES OF WAR. [92, 93 shall give, in the case now in hearing, Hhall be the truth, the whole truth, and nothing but the truth. So help you God." ^ 274. This 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 president of the court. XLII, 260, Hay, 1879. NINETY-THIRD ARTICLE. A court-martial nhall, for reasonable cause, grant a continuance to either party, for such time, and as often, as may apjjear to be just: Provided, That if the prisoner be in close confinement, the trial shall not be delayed for a period longer than sixty days. 275. The court should in all cases require that the desired evidence appear or be shown to be material, and not merel}' cumulative,^ and that to await its production 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 part of the applicant.* This feature, however, will not be so much insisted upon in militar}" as in civil cases.'' VIII, 662, July., 186 J^. 276. Where "reasona])le cause" 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 inval- idate the proceedings, but, if the accused has thus been prejudiced in his defence, may properly constitute good ground for disapproving ' That a witness testified withuut being sworn is not ground for new trial, when no objection was made at the trial and witness was cross-examined, see Moore v. State, 83 S. W. Kept., 1046. ^See now sec. 4, act of July 27, 1892, which confers power to administer such oaths upon the judge-advocate. This Article prescribes a single specific form of oath to be taken by all witnesses. The Constitution, however ( Art. I of Amendments), has provided that Congress shall make no law pr()hi1)iting the free exercise of religion. Where, therefore, the pre- scribed form is nut in accordance with the religious tenets of a witness, he should be permitted to be sworn according to the ceremonies of his own faith or as he may deem binding on his conscience. See 1 Greenl. Ev., § 371; O'Brien, 260. A witness who has once been sworn and has testified, is not required to be re-sworn on l)eing su])sequently recalled to the stand by either party. In practice he is usually reminded that he is still under oath. The re-swearing, however, of such a witness will not affect the validity of the i)roceedings or sentence. ■U'ompare People r. Tliomjtson, 4 Cal., 2.39; Parker ;-. State, 55 Miss., 414. * See par. 2, "Postponement," i>age 30, Manual for Courts-Martial. It is not, how- ever, the practii-e of courts-martial to admit counter affidavits from the opposite party as to what tiie absent witness would testify. As to the civil practice, see AVilliams V. State, 6 Nebraska, 334. * A military accused can not be charged with laches in not ]>rocuring the attend- ance at his trial of a witness who is prevented from being present by superior mili- tary authority. Tims in a case in G. O. 63, Dept. of Dakota, 1872, an accused soldier was held entitled to a continuance till the return of material witnesses then absent on an Indian expedition. 93, 94] AETICLES OF WAR. 85 the sentence,^ or for mitigating- or partially remitting the punishment. XXII, 503, Decemhev 1866; XXXIII, G16, Drcemh^\ 1872; XXXIX, 13. May. 1876. 277. Where an accused soldier, b}- reason of his regiment having ])een moved a long distance since his arrest, was separated at his trial, from certain witnesses material to his defence, /<( /r/, that he was entitled to a reasonable continuance for the purpose of procuring their attend- ance or their depositions. XXIV, 559, May, 1867. 278. That the charges and specifications upon which an accused is arraigned difl'er in a material particular from those contained in the copy served upon him before ai'raignment, ma}" well constitute a suffi- cient ground for granting him additional time for the preparation of his defence. XXIV, 514, May, 1867. 279. Where after arraignment a material and suljstantial amendment is allowed by the court to be made by the judge advocate in a specifi- cation, the eflect of which amendment is to necessitate or make desir- able a further preparation for his defence on the part of the accused, a reasonable postponement for this purpose will in general properly be granted by the court. XXII, 58, Ajjril, 1866. 280. It is in general good ground for a reasonable continuance, that the accused needs time to procure the assistance of counsel,^ 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, J^eb- ruary, 1865. NINETY-FOURTH ARTICLE.' 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, require immediate example. 281. This Article is imperative upon the point that no proceedings of trials shall be carried on ])efore eight o'clock a. m. or after three o'clock p. m. , except in the class of cases specifically indicated. Where, therefore, the record shows affirmatively that any particular material proceeding of the trial was had ])y 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 permission in the convening order, that the court "will," or "may, sit without regard to hours"), ^ See G. C. M. 0. 35, War Dept., 1867; do. 128, Hdqrs. of Army, 1876; G. O. 24, Dept. of Arizona, 1874. 2 (i. C. M. O. 25, War Dept., 1875. ^Note the different reasons for this enactment assigned by Attorney General Speed (11 Opins. 137, 141 ), and Coppce (p. 50). And see, on this point, Hough (Prac- tice), 377. This Article was repealed by act of March 2, 1901 (G. 0.27, A.G.O., 1901). 86 ARTICLES OF WAR. [94, 95 such proceeding must be held unauthorized and of no legal effect/ And if the proceeding, thus futile, was one necessary to the complete- ness of the trial, or otherwise important, it should be repeated^ or taken de novo, within legal hours. II, 123, Mnxh, 1863; VII, 433, April, 186^; XXIII, 62T, August, 1867; XXXVI, 496, J/«y, 1875. 44, 143, JDecemher, 1890. 282. The Article, however, does not require that the record shall show in terms that the hours indicated were o)>served. It is proper, indeed, and the best practcie, to state the hour of each meeting and adjourn- ment; but where no such entr}^ 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 tlio record,' that the court did not sit except between the prescril)ed hours. XXII, 635, March, 1867 ; XXIII, 627, Augud, 1867; XXX, 144, ^Larch, 1870. 283. 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 properl}' & proceed! ikj of a trial in the sense of the Article. XXVIII, 180, Octoher, 1868. 284. Where neither in the order convening a court-martial, nor in any supplementary" order, is authority given for its sitting beyond oi" out- side of the hours prescribed by this Article, and its record affirma- tively shows that the trial or a portion of the trial of a case was not con- ducted within such hours, the proceedings had outside the prescribed hours, are unauthorized and inoperative, and the sentence, if an}^ is nullified, unless by a reconvening of the court the defect may be reme- died. 44, 77, jYore/idHr, 1890. Thus, where it appeared from the record that a court martial, on a certain day, without any authority given it, completed a trial after 3 o'clock p. m., advised that the error might ))e corrected by continuing the trial anew, within legal hours, from the point reached at three oMcx'lv on that day; and recommended that the court be reconven(Kl for this purpose. 44, 143, Decemher, 1890. NINETY-FIFTH ARTICLE. Members of a court-martial, in giving their votes^, shall begin with the j'oungest in commission. ^ In some cases where the trials have, without express authority, been commenced before 8 a. m., or continued after 3 p. m., the entire proceedings and sentences have been disapproved as fatally defective. See G. O. 2, Dept. of the South, 1873; do. 94, Dept. of the Gulf, 1864; S. (). 281, Dept. of Washington, 1861. Strictly, however, it is only the proceeding had during the inhibited interval that is unauthorized and inoperative, and t\\\ see ])receding note. ^As to the j)resumption in favor of the regularity of judicial proceedings, see 1 Greenl. Ev., § 19; also § 21o8, poai^ and note. 96, 97] ARTICLES OF WAR. 87 NINETY-SIXTH ARTICLE. No person shall be sentenced to suffer death, except by the concurrence of two- thirds of the members of a general court-martial, and in the cases herein expressly mentioned. 285. A sentence of death imposed b}^ a court martial, upon a convic- tion of several distinct offences, will be authorized and legal if any one of such offences is made capitally punishable by the Articles of War, although the other offences may not be so punishable. Ill, 253, 276, 480, July and August, 1863. 286. A court martial, in imposing a death sentence, should not desig- nate a time or place for its execution, such a designation not being within its province but pertaining to that of the reviewing authority. If it does so designate, this part of the sentence may be disregarded, and a different time or place ffxed by the commanding general. Ill, 650, September, 1863. 287. Where a death sentence imposed by a court-martial has been directed hy the proper authority to be executed on a particular day, and this da}^ owing to some exigency of the service, has gone by with- out 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, 650, September, 1863; V, 22, Sej)tcmhr,\ 1863. NINETY-SEVENTH ARTICLE. No person in the military service shall, under the sentence of a court martial, be 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 be committed, or by the common law, as the same exists in such State, Territory, or District, subject such convict to such punishment. 288. This Article, by necessary implication, prohibits the imposition of conffnement in a penitentiary as a punishment for offences of a purely or exclusively military character — such as desertion for exam- ' It was held by the Supreme Court in Coleman v. Tennessee (7 Otto, 509, 519-520), 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 pendency of civil proceedings in his case, might at the date of the ruling (October Term, 1878) "be delivered up to the mili- tary authorities of the United States, to be dealt with as required by law." ]\Iore recently (3Iay, 1879, 16 Opins., 349), 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 dis- charge, while formally separating the party from the army, l)eing viewed as not affecting his legal atatm as a military 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. 88 ARTICLES OF WAR. [97 pie. ' V, 500, Decemlei', ISGS; VII, 53S, Ajrrll, 1861^; XXIII, 415, April, 1867; XXVIII, 126, Septemler, 1868; XXIX, 250, SejAemle)\ 1869; XXXI, 296, Apr'd, 1871; XXXII, 255, J[anuary, 1872; XXXin, 175, July, 1872. 289. A .sentent'e of penitentiary confinement in a case of a purel}^ military oftence is wholly unauthorized and should be disapproved. Effect cannot be given to such a sentence by comriiutin3 and 1359, 7>asY. 305. Held that there was no "second" trial, in the sense of the Article, in the following cases, viz: Where the party, after being arraigned or tried before a court which was illegally constituted or composed, or was without jurisdiction, was again brought to trial before a competent tribunal. IX, 261, Jane^ 186Jf.; XVIII, 214, Sep- temher, 1865; XXVIII, 'oS, August, 1868; Cards 1645, September, 1895; 4036, April, 1898. Where the accused, having been arraigned upon and having pleaded to certain charges, was rearraigned upon a new set of charges substituted for the others which were withdrawn. XIX, 212, October, 1865. Where one of several distinct charges upon which the accused had been arraigned was withdrawn pending the trial, and the accused, after a trial and finding by the court upon the other charges, was brought to trial anew upon the charge thus withdrawn. V, 213, October, 1863. Where, after proceedings commenced but dis- continued without a finding, the accused was brought to trial anew upon the same charge. V, 192, October, 1863. Where, after having been » United States v. Haskell, 4 Wash. C. C, 402, 409. And see United States r. Shoe- maker, 2 McLean, 114; United States r. Gilbert, 2 Sumner, 19; United States v. Perez, 9 Wheaton, 579; 1 Opins. At. Gen., 294. ^ 1 Opins. At. Gen., 233. And see also 6 ((/. , 200, 205. 92 ARTICLES OF WAR. [102 acquitted or convicted upon a certain charge which did not in fact state the real offence committed, the accused was In-ought to trial for the same act but upon a charge setting forth the true offence. XXV, 675, June, 1868; XXV II, 604, Ajyril, 1869. Where the accused was brought to trial after having had his case fully investigated b}^ a dif- ferent court which however failed to agree in a finding and was con- sequently dissolved.^ XXV, 73, Septeiiiber, 1867. Where the first court was dissolved because reduced below five members by the casu- alties of the service pending the trial. VI, 62, March., 1861^. Where, for any cause, without fault of the prosecution, there was a "mistrial,'" or the trial first entered upon was terminated, or the court dissolved, at any stage of the proceedings before a final acquittal or conviction. V, 192, Octobet\ 1863; 32, 29, April, 1889. 306. Where an oflicer or soldier, having been acquitted or convicted of a criminal ofl'ence by a civil court, is brought to trial by a court- martial for a military offence involved in his criminal act, he can not plead "a former trial," in the sense of this Article. So where the trial for the military offence has preceded, he can not plead autrefois acquit or convict to an indictment for the civil crime committed in and by the same act.' V, 140, Octd>er, 1863. 307. Where the accused has been once duly convicted or acquitted, he has been "tried" in the sense of the Article, and can not be tried again, against his will, though no action whatever be taken upon the proceedings by the reviewing authority (XXXI, 300, A])ril, 1871); or, though the proceedings, findings (and sentence, if any) be whollj^ disapproved by him.^ IX, 611, Septe?nher, 186J^; XXVII, 348, Novemher, 1868; 605, AprU, 1869; XXXVIII, 38, Apinl, 1876; 60, 177, June, 1893. It is immaterial whether the former conviction or acquittal was approved or disapproved. 36, 259, JS'ovemher, 1889. 308. That an accused has been, in the opinion of the reviewing authority, inadequately sentenced, either b)^ a general or an inferior court, cannot except his case from the application of this Article; though insufliciently punished, he cannot be tried again for the same offence. VII, 17, January, 1861^; XXVIII, 69, August, 1868. 309. Where an officer, who had killed a superior officer in an alter- cation at a military post, was brought to trial before a civil court on a charge of murder and acquitted, and was su))sequently arraigned before a court martial for an offence against military discipline involved in his criminal act, held that a plea of former trial interposed by him was properly overruled by the court. 65, 268, 269, June, 189Ji.. iSee United States r. Perez, 9 Wheat., 579. ^See 6 Opins. At. Gen., 4i;^, 506. ■'Compare Macomb, § 159; O'Brien, 277; Rules for Bombay Army, 45; McNaugh- ton, 132-133. 102, 103] ARTICLES OF WAR. 98 310. A .soldier was convicted of " manslaughter,'' but the hndin^^-s and sentence \Yere disapproved. He was then brought to trial on a charge of mutiny, as committed on the occasion of the homicide, the latter being alluded to in the specification as an incidental circum- stance of aggravation, and was found guilty and sentenced. IMd that the accused was not, in the .sense of this Article, '"tried a second time for the same ofl'ence,'' the mutiny not consisting in the act of homicide but constituting a distinct offence. 26, 2S4, Sepfcinhrr^ 18SS. 311. There cannot, in view of this Article, be a second trial where the ofi'ence is really the same though it may be charged under a difi'erent description and under a different article of war. Thus, where the Government elects to try a soldier under the 32d Article for "'absence without leave," or under the ISd for ''lying out of quarters," and the te.stimony introduced develops the fact that the offence was desertion, the accused, after an acquittal or conviction, cannot legally l)e brought a second time to trial for the same absence charged as a desertion. 34, 101. Augmt, 1889. 312. It is not misrepresentation or concealment by an applicant for enlistment, but the procuring of his enlistment by means of mis- representation or concealment, together with the receipt of pay or allowance, which constitutes the military offence of fraudulent enlist- ment under the act of Congress approved July 27, 1892. Held., therefore, where a soldier was tried for and convicted of fraudulent enlistment in procuring his enlistment by means of a misrepresenta- tion or concealment, that to again try him for the same enlistment on account of another misrepresentation or concealment subsequently discovered would be a second trial for the same offence within the meaning of this Article. Card 2768, January., 1897. 313. The reconsideration by a court martial of a finding, whether of guilty or not guilty, when duly reconvened for that purpose, is not a second trial within the meaning of this Article. The original and revised proceedings are merely parts of one and the same trial. ^ Card 5054, July, 1899. ONE HUNDRED AND THIRD ARTICLE. No person shall be liable to be tried and i^unished by a general court-martial for any offence which appears to have been committed more than two years before the issuing of the order for such trial, unless, by reason of having absented himself, or of some other manifest impediment, he shall not have been amenable to justice within that period. No person shall be tried or punished by a court-martial for desertion in time of peace and not in the face of an enemy, committed more than two years before the arraignment of such person for such offence, unless he shall >See 6 Opins. At. Gen., 200, 204, 7 id., 338; 18 id., 113; Swaim v. U. S., 165, U. S., 553. 94 ARTICLES OF WAR. [103 meanwhile have absented himself from the United States, in wliieh case the time of his absence shall be excluded in comijuting the period of the limitation: Pro- vided, That said limitation shall not begin until the end of the term for which said person was mustered into the servi(;e. 314. The "order for such trial,'' within the meaning of this Article, is the reference of the charges to the court for trial, and not the order appointing- the court. Card 1646, August^ 1895. 315. The mere fact that the oli'ence 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, 635, Se:ptemhei\ 1866; L, 638, Augrust, 1886. 316. A mere allegation in a specification, to the ett'ect that the where- abouts of the offender was unknown to the military authorities during the interval of more than two years which had elapsed since the oflenpe, is not a good averment of a "manifest impediment" in the sense of the Article. XXXV, 640, Octoher, 1874. 317. The liability to trial after discharge, imposed ])y the last clause of Art. 60, /leld subject to the limitation prescri))ed in Art. 103.^ Xll, 481, 536, Jtfit/ and August, I860; XV, 133. Ajyil, I860; XXI. 4, Xovemhej\ I860; XXVI, 670, July. 1868. And so held as to the lia- bilit}^ to trial after the expiration of the term of enlistment, under Art."^48.' XXXI, 384, ]\Iai/, 1871. 318. The prohibition of the Article relates only to prosecutions before general courts martial; it does not apply to trials by inferior courts. So, courts of inquiry ma}' be convened without regard to the period which has elapsed since the date or dates of the act or acts to be investigated.* XLII. 213, March., 1879. Noi" does the rule of limita- tion apply to the hearing of complaints hy regimental courts under Art. 30. XXXI, 452. June, 1871. 319. In view of this Article it is the duty of the Government to prose- cute an offender within a reasonable time after the commission of the oiience. 21, 156, Deccmhcr, 1887. 320. The limitation is properly a matter of defence to be specially pleaded and proved."^ 21, 156, Becemher, 1887; 40, 476, 2Lnj. 1890; 59, 278, 2Iay, 1893; 65, 346, June, 189^. By a plea of guilty the accused is assumed to waive the right to plead the limitation by a special plea in bar. LVI, 75, April, 1888. But under a plea of not n4 0pins. At. Gen., 52, 266-268. ■M4 0pins. At. (ieii., .52. •'See, to a similar effect, 13 Opins. At. Gen., 462; 15 id., 152; 16 id., 170; al.-^o, //* re Bird, 2 Sawyer, 33. ;'See 6 Opins. At. Gen. 2.39. ''hire Bogart, 2 Sawyer, 396, .397; //* re White, 17 Fed. Rep., 723; In re Davison, 21 Fed. Rep., 618; In ?r Zinuuerman, 30 Fed. Rep., 176; G. O. 22 of 1893. And com- pare U. S. V. Cooke, 17 Wallace, 168. 103, 104] ARTICLES OF WAR. 95 guilty the limitation may bo taken achantag-e of 1)}' evidejice showing that it has taken effect. 21, 156, s>//>ra: 55, 200, 8<'pteml)ei\ 1892. 321. By the absence referred to in the original Article, in the term — "unless by reason of having absented himself" — is believed to be intended, not necessarily an absence from the United States, but an absence by reason of a "fleeing from justice,'"' analogous to that specified in Sec. 1045, Rev. Sts., which has been held to mean leaving one\s home, residence or known abode within the district, or conceal- ing one's self therein, with intent to avoid detection or punishment for the offence against the United States.' Thus held that, in a case other than desertion, it was not essential for the prosecution to be prepared to prove that the accused had been l)e_yond the territorial jurisdiction of the United States in order to save the case from the opiM-ation of the limitation. 58, 208, 3farcJu 1893; 64, 4S, Fclwunnj^ 189]^. 322. A court martial, in a case of an offence other than desertion, sustained a plea of the statute of limitations in bar of trial for the reason that the judge-advocate could produce no evidence to show that the accused was not within the territorial jurisdiction of the United States during his al>sence. ILld that such showing was not necessary, and that it was sufficient that the absence should be an}' unauthorized absence from the military service whereby the absentee evades and for the time escapes trial. This construction of the term "absented him- self" in the Article corresponds to that placed on the words "fleeing from justice," as used in the statutes of the U. S. to designate those wliom the statutes of limitation for the prosecution of crimes do not protect.- 64, 137, 151, Murch. 1891^. ONE HUNDRED AND FOURTH ARTICLE. No sentence of a court-martial shall l)e carried into execution until the same shall have been approved by the officer ordering the court, or liy the officer com- manding for the time being. 323. This Article is properly to ])e coiuplied with ])y an approval of the sentence (where the same is approved in fact) by "the officer ordering the court," &c., although — as in a case of a sentence of dis- missal in time of peace — he may not be empowered fitalhj 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, May, 1861^. 324. The approval of the sentence indicated ]»y this Article should 'U. S. V. O'Brien, 3 Dillon, 381; U. S. r. White, 5 Cranch C. C, 38, 73: Gould & Tucker, Notes on Rev. Sts., 349. •'See G. C. M. 0. 19, A. G. O., 1894. 96 ARTICLES OB' WAR. [104 properly be of a fonmd character. An endorsement, signed by the coDiuiander, of the singh^ word "approved," — a form not unfrequently emplo3'ed during the civil war — though, strictly, sufficient in law (XXVI, 511, xipr'd^ 186S% is irregular and objectionable. So, held that a mere statement, written in or upon the proceedings, in trans- mitting them to the President, that the record was "forwarded'' for the action of superior authority, was insufficient as not implying the requisite approval according to the Article. II, 99, March., 1863,' VII, 176, Aj/ril, IS64. And simihirly held of a mere recommendation that the proceedings l)c approved by such authority. IX, 50, 54, 2fay, 1864- Card 2844, January^ 1897. The article requires the sentence to be "approved." JLld, therefore, where a sentence had been duly adjudged, that a formal approval of the "findings" only, did not meet the requirement of the Article. Card 5095, Octoher, 1898. 325. Iltid that a department commander could not legally depute a stall' or other officer to act for him, while absent from his headquar- ters on an expedition against Indians, in approving, &c., the sentences of courts nuu'tial previously duly convened by him.^ XXXVII, 429, March, 1876. 326. The "officer commanding for the time being,'' indicated in this Article, is an officer who has succeeded to the command of the officer who convened the court; as where the latter has been regu- larly relieved and another officer assigned to the connnand; or where the command of the convening officer has been discontinued, and merged in a larger or other command, at some time before the pro- ceedings 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 organization and been merged in a division, or a division has been similarly merged in an army or department, the conmiander of the division in the one case and of the army or department in the other, is "the officer commanding for the time being," in the sense of the Article. VIII, 033, July, 1864; IX, 621, Septemher, 1861^; XIII, 2\)d>, January, 1865; XX, 153, 194, NomirJ}er,1865; Cards 5231, Odo- her, 1898; 52T4, 6294, Wovemher, 1898; 5471, December, 1898. 327. Where, pending action upon the sentence of a general court- martial convened by a division conmiander, the division was discon- tinued and the organizations composing it were distributed among the divisions of a corps, Juld that the commander of such corps was the "officer connnanding for the time being" and the proper officer to act upon the sentence. Cards 5274, 5294, Novemher, 1898. 328. Where, pending action upon the sentence of a general court ' See A. R. 195, as amended (213 of 1901). 104] ARTICLES OF WAR. 97 iiiartijil by :i department coniniiuuler, the reofiment to which the accused l)elong'ed was transferred to an army corps outside the department, held, as the department command still existed, that the commander thereof remained the proper authorit}- to act upon the sentence. Cards 4942, September, 1898; 7166, Oct(jber, 1809. 329. Where a separate brigade was merged in a division, advised that a court convened by the commander of the separate brigade need not be dissolved on account of the merger, but may legally try all the cases which have been referred to it, the division commander becoming the reviewing authority. Card 5151, Octoher, 1898. 330. Where, before the proceedings of a garrison court convened l)y a post commander were completed, the post command had ceased to exist, and the command become distributed in the department, Iteld that the department commander, as the legal successor of the post commander, was the proper authority to approve the sentence under this Article. XLII, 48, JVovemher, 1878. 331. The fact that the officer who approves the sentence is the "officer commanding for the time ])eing,'' /. e., has succeeded to the connuand of the officer who convened the court, should be disclosed by his action on the case as reviewing authority. Cards 5078, 5(}79, 5080, Septeni- l>ei\ 1898. 332. The officer authorized to act upon the sentence is the proper authority to pronuilgate by order the proceedings of the court and his action thereon. If the regiment of the accused has moved outside the limits of the command at the date of such promulgation, a copy of the order promulgating the findings and sentence should be forwarded to the commanding officer of the accused. Card 5235, N^ovemher\ 1898. 333. Where a department command was discontinued, without being transferred to or included in any other specific command, held that the General in connuand of the Arm}^ was ''the officer commanding for the time being,'' and the proper authority to act, under this Article and the I09th, upon the proceedings and sentence of a court which had ])een ordered l)y the department commander but whose judgment had not been completed at the time of the discontinuance of the command. XV, 503, JnJy, 1865. 334. A. K. 187 (205 of 1901) prescribes that the military establishment is under the orders of the Commanding General of the Arm}" in that which pertains to its discipline and military control. A. R. 189 (207 of 1901) prescribes that territorial departments are established and their commanders assigned by direction of the President, and the 104th Article of War declares that no sentence of a court-martial shall be carried into execution luitil the same shall have been approved by the 16906—01 7 98 ARTICLES OF WAR. [104-106 officer ordering the court, or bj" the officer commanding for the time })eing. Where, therefore, a department commander was relieved from command of a department and no successor had been assigned thereto by the President, Iwld that until such assignment the Commanding General of the Army was as such, though not expressl}" assigned to the command of the department, the "'officer commanding for the tmie being" within the meaning of the KMth Article of War. Card 3142, April, 1897. 335. The "officer commanding for the time being" must, to legally act, have the necessary qualifications. Thus, where the sentence is one of a general court-martial, this officer must have the same rank and status as the convening officer must have had under the 72d Article, i. t-., he must be either a general officer commanding the army, division or department, or a colonel commanding the department. XLVII, 92, June, 1883. ONE HUNDRED AND FIFTH ARTICLE. No sentence of a court-martial, inflicting the punishment of death, shall be car- ried into execution until it shall have been confirmed by the President; except in the cases of persons convicted, in time of war, as spies, mutineers, deserters, or mur- derers, and in the cases of guerrilla marauders, convicted, in time of war, of robbery, burglary, arson, rape, assault with intent to commit rape, or of violation of the laws and customs of war; and in such excepted cases the sentence of death may be car- ried into execution upon confirmation by the commanding general in the field, or the commander of the department, as the case may be. ONE HUNDRED AND SIXTH ARTICLE. In time of peace no sentence of a court-martial directing the dismissal of an ofl&cer, shall be carried into execution, until it shall have been confirmed by the President. 336. The word "approved," 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 connection. XLI, 12, September, 1877. 337. The Article does not require that the contirmation of the sen- tence shall be signed by the President, nor does it prescribe anj^ form in which the contirmation shall l>e declared. Held, therefore, that a written approval of a sentence of dismissal authenticated l)y the sig- nature of the Secretary of War or expressed to be by his order, was a sufficient contirmation witliin 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 sufficient for the purpose; the assent of the President to his order or direction being presumed, and his act being 106-109] ARTICLES OF WAR. 99 deemed in law the act of the President whom he represents/ IX, 44, 3fai/, lS6i; XXIII, 654, August, 1867; XXXVII. 650, June, 1876; XXXVIII, 107 and 243, e/^meand Augmt, 1876; XXXIX, 296, Mvem- her, 1877; XLI, 25, Septemher, 1877; XLII, 209, March, 1879; XLIII, 106, Decemhei^ 1879. ONE HUNDRED AND SEVENTH ARTICLE. No sentence of a court-martial appointed by the commander of a division or of a separate brigade of troops, directing the dismissal of an officer, shall be carried into execution until it shall have been confirmed by the general commanding the army in the field to Avhich the division or brigade belongs. 338. In view of the provisions of the l06th and this Article, held, that when In time of war a department commander is the reviewing- authority^ no confirmation of a sentence of dismissal by higher author- ity is necessary,^ but when a division or separate brigade conmiander is the reviewing authority, such sentence must be confirmed by the gen- eral commanding the army in the field to which the division or brigade belongs. Card 6240, April, 1899. And in the latter case if the divi- sion or brigade does not belong to a separate arm}' in the field, the commanding general of the Army of the United States would be the proper confirming authority, within the meaning of this Article. Card 4980, September, 1898. ONE HUNDRED AND EIGHTH ARTICLE. No sentence of a court-martial, either in time of peace or in time of war, respecting a general officer, shall be carried into execution until it shall have been confirmed by the President. ONE HUNDRED AND NINTH 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 commanding general in the field, or com- mander of the department, is not required by these articles. See one HUNDRED AND FOURTH ARTICLE. ^ This view has been sustained by an opinion of the Attorney-General of June 6, 1877 (15 Opins., 290), and by a Report of the Judiciary Committee of the Senate of INIarch 3, 1879, — Rep. No. 868, 45th Cong., 3d Ses. From this report, indeed, two members of the committee dissented in a subseciuent report of April 7, 1879, — Mis. Doc. No. 21, 46th Cong., 1st Ses. This subject has been more recently considered bv the U. S. Supreme Court in a succession of cases (Runkle v. U. S., 122 U. S., 543; U. S. r. Page, 137 U. S., 673; U. S. r. Fletcher, 148 U. S., 84), the effect of which is that a statement of approval of a sen- tence of dismissal, authenticated by the Secretary of War, is legally sufficient, pro- vided that it appear, by clear presumption therefrom, that the proceedings have actu- ally l)een submitted to the President. In an opinion of the Attorney General of April 1, 1879 (16 Opins., 298), it was held that a confirmation of a sentence of dismissal of an officer, thougli irregularly and unduly authenticated, would be ratified by an appointment l)y the President of another officer to till the supposed vacancy, and that the appointment thus made would be valid and operative. ^ As to dismissal of general officers, however, see 108th Article. 100 ARTICLES OF WAR. [110-112 ONE HUNDRED AND TENTH ARTICLE/ No sentence adjudged by a field officer, detailed to try soldiers of his regiment, shall be carried into execution until the same shall have been approved by the brigade commander, or, in case there be no brigade commander, by the command- ing officer of the post or camp. 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. 339. An officer suspending the execution of a sentence for the action of the President under this Article should first formally apiyrove the same. Simply to forward the proceedings stating- that the sentence has been suspended, is incomplete and irregular. IV, 337, Noveml)€i\ 1863; IX, 15, May, ISGJf. If the commander discqyproves the sentence, he should not of course suspend and transmit under this Article, since there remains nothing for the President to act upon. II, 50, March, J863. 340. 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 approving, may exercise the power of remission or miti- gation. Ill, 492, August, 1863; VII, 594, ^4jt>r^7, 1861,.. ONE HUNDRED AND TWELFTH ARTICLE. Every officer who is authorized to order a general court-martial shall have power to pardon or mitigate any punishment adjudged by it, except the jjunishment of death or of dismissal of an officer. Every officer connnanding a regunent or garri- son in which a regimental or garrison court-martial may be held, shall have power to pardon or mitigate any punishment which such court may adjudge. 341. The power to remit or commute sentences of death and disinis- sal remains with the President. A military commander cannot exer- cise such power, even where, in time of war, he is authorized to approve and execute the sentence. He may then, however, if he thinks that the sentence should be remitted or commuted, suspend its execution for the action of the President (with a recommendation to clemency) under the precednig Article.' II, 67, Mnr/t, 1863. 342. A military commander vested with the power of pardon or mitigation under this Article is not authorized to delegate the same to an inferior. Thits /le/d that a department conunander could not legall}'" authorize a post commander to remit in part, upon good behavior, the 1 Repealed bv section 2, act of June 18, 1898, establishing the summary court. 2 See 6 Opins. At. Gen., 123., 124-125. 112] ARTICLES OF WAR. 101 punishment of a soldier under sentence at the post of the latter, who had been convieted by a general court, convened, and whose proceed- ings had ])een acted upon, ])y the former. XXXIII, Hi), Ju)u% 1S7''2. 343. A punishment cannot be pardoned or mitigated under this Article where it has been once duh^ executed. Where, however, a sentence has been executed only in part, it may be remitted as to the portion remaining unexecuted. II, 29, February^ 1863. 344. The pardoning power here given is not limited in its exercise to the moment of the approving of the sentence, but may be employed 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 liis comraand under a sentence imposed l>y a court-martial convened by him or b}' a predecessor in the command. V, Tl, Septemher, 1863; VI, 35, 3farch, 1861^; VIII, 582, June, 1861^; XXI, 49, NovemheT, 1865; XXVI, 463, February, 1868; XXVII, 243, iSejjteniher, 1868. 345. The reviewing authorit3% in approving the punishment adjudged by the court and ordering its enforcement, 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 mitigatio7i. yi^^Yll, 22, Jime, 1875; XLI, 518, 3farch, 1879. Imprisonment, fine, forfeiture of pay, and suspension, are punishments capal)le of mitigation. As an instance of a mitigation both in quantity and quality, held that a sentence of imprisonment for three years in a penitentiary was mitigable to an imprisonment for two years in a military prison. XLI, 518, supra. 346. Held that it was not a due exercise of the power given by this Article, but irregular and unauthorized, for a post commander to sus- pend the execution of the sentence of a garrison court convened by him, during good behavior on the part of the soldiers sentenced. XXX, 115, February., 1870. 347. Held thixt xi reviewing officer other than the President, was not empowered b}^ this Article to conirnute a punishment; that tlie ' * pardon " here specified was retni^.'^ion, which, unlike the pardoning power vested in the President, did not include commutation or conditional ])ardon. So, held that a reviewing commander was not authorized to conumite the punishment of dishonorable discharge, and that, as such punishment was not susceptible of mitigation, it could not legally be reduced under this Article. LVII, 89, October, 1888; 32, 401, May, 1889. 348. The suljstitution of the punishment of confinement for that of dishonorable discharge, imposed by sentence of court martial, would 102 ARTICLES OF WAR. " [112 not, of course, be authorized by wsij of mitigation (which can not change the nature of the punishment), but may l)e effected by a com- mutation of the sentence by the President.' 32, 401, May, 1889; 34, 23T, Augiist, 1889. 349. Where a prisoner is serving out a sentence of imprisonment at a militar}" prison or place of confinement within the command of- the officer who approved the proceedings, such officer (or his successor in the command) may, under this Article, remit at anj^ time the unex- pired portion of the pending confinement,^ although the punishment of dishonorable discharge, imposed by the same sentence, ma}" meanwhile have been dul}" executed. 57, 371, January^ 1893. 350. Where a soldier was sentenced to a term of confinement and at the end of the term to be dishonorablv discharged, and pending the confinement the unexecuted portion of the sentence was remitted, held., that such remission included the dishonorable discharge, as the same under the terms of the sentence remained to be executed. XX, 460, March, 1866. 351. A soldier was sentenced to be confined for a term, and at the end of such term to be dishonorably discharged. At the end of the term he was at once restored to duty and continued on duty. Held that such restoration operated as a constructive pardon and remitted the unexecuted part of the sentence, to wit the punishment of dis- honorable discharge.^ 51, 126, December, 1891. 352. A punishment in itself illegal is not capable of mitigation. Thus where a sentence of imprisonment in a penitentiary is not legally authorized, it cannot l)e made valid by mitigating this imprisonment to confinement in a military prison. In such case the latter will be equally invalid and inoperative with the original punishment.* 29, 209, Jaiut- ary. 1889; 43, 151, Octoher, 1890; 53, ISl, April, 1892. 353. A substitution, for a punishment of dishonorable discharge with loss of all pay and allowances due and to become due, of a punishment of confinement at hard labor at the post for one year with forfeiture of ten dollars per month for the same period, hehi not a legitimate miti- gation, the confinement at hard labor being a su))stitution of an entirely difl'erent punishment from that awarded by the court. XLVIII, 'd^Q, January, 1885. So where the substitution for such a sentence was ^ See instance of such comniutation by the President in the case of Private Haves, oth Artillery, in G. C. M. (). 58 of 1888. ^The coun'ter opinion of the Attorney General, in 19 Opins., 106, was not adopted by the Secretary of War, or followed in practice — as is shown bv the terms of par. 9i6, A. R. (1017 of 1901), and par. 6, p. 62, Manual for Courts-Martial (1901). ^See 6 Opins. At. Gen., 714, 715. *But see A. R., 940, as amended (1041 of 1901), which provides that when a jienitentiary has been erroneously designated in the sentence the reviewing authority may disapprove that portion of the sentence and designate a proper ])lace. 112] ARTICLES OF WAR. 103 oontineinent at hard labor for six months and forfeiture of ten dollars per month for the same period, it was held that the eonhnement, and so much of the forfeiture, if an}", as exceeded the pay and allowances due the soldier, were illegal. Card 5887, Fihruary^ 1899. 354. Where a sentence of dishonorable discharge, with forfeiture of all pay and allowances and confinement at hard labor for four years, was iiutigated to confinement for one year with forfeiture of ten dol- lars per month for the same period, held that the same was regular and legal and not in contravention of Circ. No. 2, A. G. O. of 1885.^ L, 96, 2farch, 1886; Card 9328, Wovember, 1900. 355. Dishonorable discharge cannot legally be mitigated to "dis- charge without a character." The latter is not a recognized punish- ment. 43, 176, October, 1890. 356. Held that ''good conduct time" to a prisoner's credit should not be deducted from the shortened sentence in a case where it has been ordered that he "be released after he has been confined a certain num- ber of months." A mitigation so expressed is not e(juivalent to a reduction of the term to the number of months stated but it means that the prisoner will be released after he has been in actual confinement for that time. Card 3862, February, 1898. 357. The order prescribing maximum punishments was not intended to and does not affect the established principle that the reviewing authority, in the exercise of his power of mitigation, can not change the kind of punishment. The power of substitution which may be exercised b}^ the court under the order has no relation to the power of the reviewing officer. Thus held that the substitution by the reviewing officer of confinement for forfeiture, though the period of confinement proposed were less than the court could have substituted, would not be legal mitigation. Card 3-187, Sejjtendfer., 1897. 358. An officer under a sentence of suspension for five years, with for- feiture of one (juarter of his pay, applied to be allowed to receive his full pay for three months, the forfeiture imposed by the sentence for these months to be satisfied in one sum from the pay of the month next succeeding. Held that such action — for which there was no prec- edent — would have to be taken, if at all, by way of mitigation, but that the same would amount to ',i postponement of the execution (of a part) of the sentence, which w^ould not be legitimate mitigation. 61, 132, August, 1893. ' A legal sentence of dishonorable discharge, forfeiture of all pay and allowances due and confinenient at hard labor for a definite period, may be mitigated by the authority approving such sentence to confinement at hard labor and forfeiture of pay and allowances, for a period not to exceed the period of confinement awarded in the sentence. Court-Martial Manual of 1901, p. 63, par. 8. 1U4 ARTICLES OF WAR. [113, 114 ONE HUNDRED xVND THIRTEENTH ARTICLE. Every judge-advocate, or person acting as such, at any general court-martial, shall, with as much expedition as the opportunity of time and distance of place may admit, forward the original proceedings and sentence of such court to the Judge- Advocate- General of the Army, in whose office they shall be carefully preserved. ONE HUNDRED AND FOURTEENTH ARTICLE. Every party tried by a general court-martial shall, upon demand thereof, made by himself or by any person in his behalf, be entitled to a copy of the proceedings and sentence of such court. 359. A copy of the proceeding-.s and sentence cannot properly be furnished under this Article till the same have been tinall}" acted upon and such action has been promulgated in the usual manner. XIX, 624, and XXI, 386, May. 1S6G. 360. A person applying for the copy, '"in behalf " of the accused, should exhibit some satisfactor}^ evidence that he duly represents the accused, as his agent, attorney, or otherwise. Where it does not satis- factorily 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, 409, August, 1er, 1875. 362. The accused or other person entitled under this Article to ])e furnished with a copy of a record of trial, is not entitled to be furnished with a cop3^ of a report of the Judg-e-Advocate General made upon the case. To receive this, special authority must be obtained from the Secretary of War. XIX, 657, June, 1866; XXXII, 54, Octoher, 1871. 363. The furnishing of a copy of a record of a general court mar- tial to a person other than the accused and not applying 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 copy furnished will clearly subserve a good and desirable purpose. But this nmst be made certainl}^ to appear. XXI, 336, April., 1866. 364. It is only a party ""tried b}^ a general court martial" who is entitled by the Article to the cop3^ Parties desiring copies of records of courts of inquiry., for the use in evidence under Art. 121, or for other purpose, must apply to the Secretary of W^ar, as indicated in § 361, royision was unnecessary to entitle tlie ])arty to the privilege. 118, 119] ARTICLES OF WAR. 107 ONE HUNDRED AND EIGHTEENTH ARTICLE. A court of inquiry, and the recorder thereof, shall have the same power to sum- mon and examine witnesses as is given to courts-martial and the judge-advocates thereof. Such witnesses shall take the same oath which is taken by witnesses before courts-martials,^ and the party accused shall be permitted to examine and cross- examine them, so as fully to investigate the circumstances in question. ONE HUNDRED AND NINETEENTH ARTICLE. A court of inquiry shall not give an opinion on the merits of the case inquired of unless specially ordered to do so. 369. An opinion given bj^ a court of inquiry is not in the nature of a sentence or adjudication pronounced upon a trial. The accused, upon a subsequent trial, by court martial, of charges investigated by a court of inquiry, cannot plead the proceedings or opinion of the latter as a former trial, acquittal, or conviction. XVI, 389, July, 1865: XXIX, 98, July, 1869. 370. While it is of course desirable that the members of a court of inquiry, directed to express an opinion, .should concur in their conclu- sions, 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-martial. If a member or a minority of members cannot conscientiousl}" and without a weak yielding of independent convictions agree with the majority, it is better that such member or members should formally disagree and present a separate report (or reports) accordingly. The very disagreement 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 con- sideration of and action upon the same. XLI, 207, Ayril., 1878. 371. Where, as in the majorit}^ of cases, the inquiry is instituted with a view of assisting the determination by the President, or a military ^ A court of inquiry has no power to punish as for a contempt. Such power of this nature as is conferred by Art. 86 is restricted in terms to courts martial. Moreover a court of incfuiry, not being in a proper sense a court, cannot exercise the strictly judicial function of punishing contempts. A loose observation of Hough (Authori- ties, 10) that "contempts 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 ^Vlar. Law, 198) that a court of inquiry "has no power to punish them for contumacy or silence." The act of March 2, 1901 (G. O. 27, ' . G. O., 1901 ), providing for the punishment of civilian witnesses refusing to appear or testify, is limited by its terms to general courts-martial. -In the case of the court of inquiry (composed of seven general officers), on the Gintra Gonvention, in 1808, the members who dissented from the majority were reciuired by the convening authority to put on record their opinions, and three dis- henting opinions were accordingly given. A further instance, in which two of the live members of the court gave each a separate dissenting opinion, is cited by Hough ( Precedents) , 642. Mainly upon the authority of the former case, both Hough ( Prece- dents), 642, and Simmons, § :^39, hold that members non-concurring with the majority are entitled to have their opinions rejiorted in the record. 108 ARTICLES OF WAR. [119-122 commander, of the question whether the party should be brought to trials the opinion of the court will properh^ 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 will properly confine itself to the special question proposed and its legitimate mili- tary relations. A court of inquiry, composed as it is of military men, will rarely find itself called upon to express an opinion upon questions of a purely legal character. ' XVI, 389, July^ 18G5. ONE HUNDRED AND TWENTIETH ARTICLE. The proceedings of a court of inquiry must be authenticated l)y the signatures of the recorder and the president thereof, and delivered to the commanding officer. ONE HUNDRED AND TWENTY-FIRST ARTICLE. The proceedings of a court of inquiry may be admitted as evidence by a court mar- tial, in cases not capital, nor extending to the dismissal of an officer: Provided, That the circumstances are such that oral testimony cannot be obtained. 372. While the proceedings of a court of inquirj" cannot be admitted as evidence on the merits^ upon a trial before a court martial of an offence for which the sentence of dismissal will be mandatory upon conviction;'^ yet held that upon the trial of such ofl'ence, as upon any other, such proceedings, properly authenticated, w^ould be admissible in evidence for the purpose of impeaching the statements of a witness upon the trial who — it was proposed to show — had made quite differ- ent statements upon the hearing before the court of inquiry.^ XLIII, 339, Jime. 1880. ONE HUNDRED AND TWENTY-SECOND ARTICLE. If, upon marches, guards, or in quarters, different corps of the Army happen to join or do duty together, the officer highest in rank of the line of the Army, Marine Corps, or militia, by commission, there on duty or in quarters shall command the whole, and give orders for what is needful in the service, unless otherwise specially directed by the President, according to the nature of the case. ^ In an exceptional case, that of the special court of inquiry authorized by Congress in the Joint Resolution of Feb. 13, 1874, the court was required to express an opinion not only upon the "moral," but upon the "technical and legal responsibility" of the officer for the "offences" charged. It is not irregular, l)ut authorized, for a court of inquiry, in a i)r(iper case, to reflect, in connection witli its opinion, upon any improper language or conduct of the accused, prosecuting witness, or other person, a{)pearing before it during the investigation. Thus, the court of inquiry on the con- duct of the Seminole war, adverted, in its opinion, unlavoral)ly ujwn certain offensive and reprehensil)le language employed against each other by tlie two general officers concerned, thi> one in his statement to the court, and the other in his official com- munications wiiich were put in evidence. See G. 0. 13, Hd(irs. of Army, 1837. ^Compare (J. O. 33, Dept. of Arizona, 1871. ^See this ruling pu))lis]u'd, as adopted by the President, in (i. C. M. (). 40, Hdqrs. of Army, 1880. See also, G. C. M. O. 88, Navy Dept., 1895. 123-127] ARTICLES OF WAR. 109 ONE HUNDRED AND TWENTY-THIRD ARTICLE. In all matters pertaining to the rank, duties, and rights of officers the same rules and regulations shall apply to officers of the Regular Army and to volunteers com- missioned in, or mustered into said service, under the laws of the United States, for a limited period. ONE HUNDRED AND TWENTY-FOURTH ARTICLE. Officers of the militia of the several States, when called into the service ©f tlie United States, shall on all detachments, courts-martial, and other duty wherein they may be employed in conjunction with the regular or volunteer forces of the United States, take rank next after all officers of the like grade in said regular or volunteer forces, notwithstanding the commissions of such militia officers may be older than the com- missions of the said officers of the regular or volunteer forces of the United States. ONE HUNDRED AND TWENTY-FIFTH ARTICLE. In case of the death of any officer, the major of his regiment, or the officer doing the major's duty, or the second officer in command at any post or garrison, as the case may be, shall immediately secure all his effects then in camp or quarters, and shall make, and transmit to the office of the Department of War an inventory thereof. ONE HUNDRED AND TWENTY-SIXTH ARTICLE. In case of the death of any soldier, the commanding officer of his troop, battery, or company shall immediately secure all his effects then in camp or quarters, and shall, in the presence of two other officers, make an inventory thereof, which he shall transmit to the office of the Department of AVar. ONE HUNDRED AND TWENTY-SEVENTH ARTICLE. Officers charged with the care of the effects of deceased officers or soldiers shall account for and deliver the same, or the proceeds thereof, to the legal representa- tives of such deceased officers or soldiers. And no officer so charged shall ]>e per- mitted 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. , 373. This Article, in connection with the two preceding Articles, provides for the securing of the effects of deceased officers and sol- diers, making inventory of the same, and accounting for them to the proper legal representative, &c. These Articles have special refer- ence to cases of deaths of military persons while in active service in the field or at remote militar}" posts, and their provisions apply onl}'^ to such effects as are left by the deceased "in camp or quarters." An attempt by the commander, &c. , to secure effects left elsewhere would not be within the authority here given, and might subject the olficer to the liability of an administrator: such a proceeding would not there- fore be advisable. ^ Upon accounting to the duly qualified legal repre- sentative, as directed in the Article, the responsibility of the officer is ^Compare Samuel, 6.59; Hough (Practice), 558. 110 ABSENCE WITHOUT LEAVE. discharged, and it remains for the representative to dispose of the property according- to the law applical)le to the case. XLIII, 266, 2Iarch, ^1880. ONE HUNDRED AND TWENTY-EIGHTH ARTICLE. The foregoing articles shall l)e read and published, once in every six months, to every garrison, regiment, troop, or company in the service of the United States, and shall be duly observed and obeyed by all oflBcers and soldiers in said service. ABSENCE WITHOUT LEAVE. 374. An unauthorized absence from the quarters only, as from 11 p. m. inspection, held not properly chargeable under the 32d Article. This article contemplates an absence from the soldier's ''troop, battery, compan}^ or detachment" — an absence from the post or command. 47, 133, 2fay, 1891; 49, 100, 171, Sejytemher, 1891. 375. The statutory authority for the army regulation requiring that deserters restored to duty without trial shall make good time lost by desertion, is found in the 1:8th Article of War; but there is no such article or other statute with reference to absence without leave. Whether therefore a soldier can by a regulation alone be required to make good time lost by absence without leave is doubtful. 65, 338, June^ 189 If.. The soldier by virtue of his contract of enlistment fails to earn and therefore is not entitled to pay and allowances accruing during the period of his unauthorized absence, but it is considered that in the present state of the law his retention in the service to make up time so lost cannot legally be authorized.^ Cards 1485, Jime, 1895; 1191, July, 1896; 3741, December, 1897. 376. Violations of the 33d Article of War should not be charged as absence without leave under the 32d Article. Card 2838, Deceml)ei\ 1896. 377. Where an officer^ or soldier on his return from an unauthor- ized absence is, in consequence of his report of the facts and circum- stances of such absence, not proceeded against l)y his proper conmiander for the military offence involved, but is by the latter placed upon full duty, such action, under the general custom of the service, may )>e pleaded as a good defence, if the officer or soldier be subsequenth- brought to trial for the unauthorized absence. II, 376, 391, May, 1863. 378. An enlisted man forfeits his pay and allowances during the ^ This view is not in accordance with the Armv Regulations and practice. See A. R., 133 of 1895 (144 of 1901). '■'An absence without leave by an officer is laid under the 62d Article of \\i\v. ACCOUNTABILITY OF OFFICER. Ill period of an absence without leave, as provided in armv regulations. During- such absence he renders no service and therefore earns neither pay nor allowances. The forfeiture is thus by operation of law and accrues independently of the result of a trial for the militar}- offence involved in the unauthorized absence. One of the purposes of the muster and pay rolls is to show what service the soldier renders, and if the}- show that he has rendered none during- a particular period by reason of an absence without leave, he is not entitled to pay and allowances during such period.^ 36, 303, jVovernhet^ 1S89; 57, 24:(), Jamiary, 1893; Card 1404, June, 1895. For an absence without leave of less than a da}- the soldier may of course be tried by court martial and sentenced to suffer a forfeiture, l)ut such absence should not be noted on the muster and pay rolls. 47, 399, June^ 1891. ACCOMPLICE. 379. In general, where an accomplice offers and is admitted to tes- tify upon the part of the government against an accused person, he is called to the stand under an implied promise that no proceedings will be taken against himself, and that the question of his pardon will be favorabh- considered, provided he makes a full disclosure of the facts within his knowledge; and this whether or not the accused be convicted by means of his evidence.^ 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, however, ihe accused was acquitted by the court), was himself sub- sequently brought to trial for the same act, and convicted and sen- tenced for his part in the same, — reeomiaended that his sentence be remitted bv the President. XI, 590, and XIY, 259,- J/^//r//, 1866. ACCOUNTABILITY OF OFFICER. 380. There is neither law nor justice in holding an officer of the army pecuniarily accountable to the United States where the U. S. has lost nothing b}' his act; or in holding him so accountable where, though there has been such loss, the same was not occasioned by his act. He may indeed be amenable to court-martial for some neglect of dut}" 'U. S. V Landers, 92 U. S., 77, 79. ■•'See Kiufj; r. Rudd, Cowper, 331; United States v. Lee, 4 McLean, 103; Whiskey Cases, 9 Otto, 594; People r. Whipple, 9 Covven, 707; 1 Chitty Cr. L., 768-9; 1 Bishop Cr. Prof., § 1075-6, and notes; also Report (No. 352) of Committee on Judiciary of H. of Reps., 44th Cong., 1st Sess., March 31, 1876. 112 ACTING ASSISTANT STTRGEON. involved in the art and properly brought to trial therefor. })ut this is a wholly distinct liability. 46, 340, ApriL 1891. 381. A recruiting officer's clerk (a corporal), having access to blank transportation requests, filled out several in favor of a railroad com- pany, forged thereto the name of the officer and disposed of the same. The forged requests were paid b}'^ a disbursing officer. Held., that the latter having paid out money of the United States on forged vouchers was alone legally accountable for the loss. If the officer who per- mitted access to the blank requests thereby committed a militarv oflfence, his amenabilit}^ for such offence could be enforced only by means of a trial, conviction and punishment by court-martial. What- ever may be the legal effect of par. 35, Circular 7, A. G. O., 1892, the loss in question occurred prior to the promulgation of the circular. 56, 208, Octoher, 1892. 382. Where an officer, having had entrusted to him by another officer a medal of honor, intended for and to be delivered to an enlisted man, gave such care to its safe-keeping as he gave to his own property, locking it up in his trunk for the purpose of transportation — Juld that he was not legally accountable for the loss of the medal in transitu. He was simply a gratuitous bailee of whom is required only the lowest degree of care and w'ho is not liable for a loss which is not the result of gross negligence. 44, 382, Deceniber^ 1890. 383. A person who, as an officer of the army, has been subjected under Sec. 1304, Rev. Sts., to a charge, against his pa}-, of the money value of military stores deficient or damaged for which he has been held accountable, cannot, after he has ceased to be such officer and has left the army, be relieved from such liability h\ the Secretary of War under that Section. For such relief he must have recourse to Con- gress. 65, 137, 2L(y, 1891^. "ACTING ASSISTANT" OR "CONTRACT" SURGEON. 384. A "contract"' or ''acting assistant" surgeon is not a military officer and has no military rank or status. He is amenable indeed to the.military jurisdiction when employed with the army in the field in 2;/y>(!6^ cv/* '2^7ifr/' (see Sixty-third Article); but he is in fact no part of the military establishment; is simply a civilian employed by the United States, under a special contract for his personal services as a medical attendant to the troops. When not serving with troops before the enemy he has no other relation to the military organization or the government than that established bv the terms of his contract, made ACTING ASSISTANT SURGEON. 113 in accordiinco with the jirmy regulations, IX, 678, Octol:)ei% I86J1.; XXVI, 18, SepUrii}j>n\ 1867; XXVIII, 230, Noi^einher, 1868; XXXIV, 201, April, 1873; LII, 3(14, June, 1887. He is not subject to military orders in general, like an officer or soldier, but only to such orders or directions as properly pertain to the performance of his particular duties. XXVII, 212, Scpteinhtr, 18G8. He is of course not eligible for detail as a member of a military court, XXII, 512, Deeemhei\ 1866; XXX, 109, February, 1870. As a civilian, howevei-, he is entitled to the 2>(^'' diem allowance, &c,, when duly attending a court martial as a witness. XXIV, 186, Janiunvj, 1867. 385. Acting assistant or contract surgeons are neither privates, non-commis.'?ioned officers nor officers. Thej' were during the war of the rebellion and still are necessarily assimilated as to their duties, pay and status to assistant surgeons of the army. When serving- with the forces in the held they are subject to military discipline and to the jurisdiction of courts martial under the provisions of the 63d Article of War, The}^ were creatures solely of army regulations and orders, which are executive mandates wholly powerless to constitute them officers of the army. These regulations and orders could and did authorize commanders to "employ" civil or '"private"' physicians to render professional services in connection with the medical depart- ment of the army, but could not and did not commission or make them regular or volunteer officers, 52, 101, March, 1892; 53, 167, Ajrril, 1892; 65, 226, June, 189 1^; Card 1128, March, 1895. 386. As a contract surgeon was not an officer of the army, an enlisted man could legally be employed to act as one. So held that the emplo^'ment b}" the military authorities in 1862 of a "first class musi- cian "' of the band of a volunteer regiment (an enlisted man) to act as a contract surgeon, was not illegal.^ 65, 250, June, 1891^. 387. A contract surgeon, not being, in the legal or statutory sense, an officer of the army, held not entitled to the benefit of the act of March 3, 1885, c, 335, "to provide for the settlement of claims of officers and enlisted men of the army for the loss of private prop- erty." XLIX, 246, Jaly, 1885. 388. Jleld that a civilian phj^sician, employed (between 1866 and 1868) under contract, by the "Bureau of Refugees, Freedmen and Abandoned Lands ", was not a contract surgeon within the application of Sec. 4693, Rev. Sts., relating to pensions, inasmuch as he did not render service with a "military force in the field", or even in attend- ^See U. S. r. Saunders, 120 U. S., 126, to the effect that one person may legally hold two distinct offices, places, or employments, at the same time, under the United States. 16906—01 8 114 ADJOUENMENT. ing members of the military establishment; such bureau })eing no part of such establishment/ 63, 97, Decehthet^ 1893. 389. A contract suroeon was appointed under the provisions of the act of Congress approved May 12, 1898, and the contract provided, inter aJia^ that "when on duty at a post or station where there are no public quarters, he shall receive the commutation for (Quarters allowed by law to assistant surgeons of the rank of tirst lieutenant." Held that commutation of quarters was "compensation" within the mean- ing of the said act of Ma}' 12, 1898, and could not therefore be paid in addition to the one hundred and fifty dollars per month authorized by the act. Neither the terms of the contract nor the army regulations (par. 994) could authorize wdiat the statute law prohibited. Card 5142, Octoher, 1S98. 390. The contracts entered into with acting assistant surgeons ap- pointed under the act of Congress approved Ma}' 12, 1898, after speci- fying the money compensation contain the following provision: "All of which shall be his full compensation and in lieu of all allowances and emoluments." Held, that this provision did not deprive an acting assistant surgeon of the privilege of buying fuel from the quarter- master's department as provided in par. 999 of the Arm}' Regulations, this privilege not being an allowance or emolument. Card 4988, Sejj- temher, 1808. 391. A contract surgeon can not legally be compelled to remain in the service against his consent after the expiration of the term of his contract. Card 8618, July, 1900. ADJOURNMENT. 392. 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 president and judge-advocate, VIII, 507, Jime.^ 1864^. 393. While the practice 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 ^No specific appropriation for the pay, &c., of "contract surgeons" was made between 1891 and 1898. The act of February 12, 1895, provided however for the employment of "civil physicians" by the surgeon general. But the act of May 12, 1898, provides that in emergencies the Surgeon General of the Army, with the approval of the Secretary of War, may appoint as many contract surgeons as may ))e necessary at a compensation not to exceed one hundred and fifty dollars per montli. From 1888 to 1891 appropriations for mileage to contract surgeons was made in the annual ajipropriation acts, and again since 1898. That contract surgeons are not officers of the armv, see 26, Ct. Cls., 802, .306; Digest Second Comp. Dec, vol. 8, sees. 929, 9.32; 4 Comp. Dec. 629, 631. But General Order 151, A. G. ()., 1898, amending A. R., 85 (99 of 1901), relating to the burial expenses of officers of the Regular or Volunteer Army who are killi'd or wh(j die in the service, was construed by the War Department, December 14, 1898, to include contract surgeons. See also circulars 41 and 55, A. G. O., 1899. AID-DE-CAMP. 115 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 affect their validity. XXIII, 627, Awjust, 1867; XXXIII, 456, Novemher, 1872. 394. Where the order convening a militar}' court is in the more usual form, requiring it, generally, to try such cases as may be brought before it, an adjournment at some period of its sessions without a day tixed for its reassembling will not preclude its meeting again and con- tinuing its sessions till its business is terminated. XXI, 91, Decemher, 1865. 395. An adjournment ""sine die'' of a court martial is quite without legal significance, having no more legal effect than a simple adjourn- ment.^ Such an adjournment does not dissolve the court, since a military court has no power to terminate its own existence or divest its authority.-^ XXI, 679, Novenihev, 1866; XXVI, 58S, June, 1868; XLII, 158, February, 1879. AID-DE-CAMP. 396. The aids of the General of the Arm}-, though not holding the a})p()intment or office of colonel of the army, are invested by law (sec. 1096, Rev. Sts.) with the ranJi' of colonel upon their selection as aids and while acting as such.^ The}"^ are therefore entitled to sit upon courts-martial and boards according to this rank, as dating from their selection.* XXX, 168, March, 1870. 397. Held (December, 1861) that the "additional aids-de-camp," authorized by the act of August 5, 1861, were a part of the regular army. They were appointed hy the President and confirmed by the Senate, and the Act creating them provided that thev should "bear the rank and authority 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 militarv establishment of the United States, of July 29 of the same year, which provided for an increase of the regular army by the addition of new regiments. And although the act of Aug. 5, 1861, provided for the appointment of these >See Brown r. Root, Supreme Coiirt, D. C, 1900 (44087, Law). ^A court-martial in session at a military post or station is authorized to adjourn to the (piarters, at the same post or station, of a sick witness and there take his testi- monv, if he is in fact, as certified by the medical officer, too ill to come to the court rooni. 8ee (\. C. ^l. O. 37, Dept. of the East, 1870. •'This ruling is adopted in the opinion of the Attoi*ney General of August 11, 1880. Compare the opinion of the Court of Claims in Wood v. United States, 15 Ct. Cls., 151. * Similarly held by the Secretary of War in the case of an aid of the Lieut. General, of the rank ®f lieutenant colonel, detailed upon a court martial for the trial of a cadet in 1870. 116 ALIEN. aids only durintj the rebellion, and for their discharge when not employed in active service, and their reduction in number at the dis- cretion of the President, yet provisions of a similar character, appli- cable to regular officers, are contained in sec. of the principal act of July 29. It is not essential to an oifice in the "regular" army that its term be without statutory limit. XI, 267, IJecemher, ISG.'f. 398. It is substantially laid down as a general rule in Circ. No. 1 A. G. O., 1883, that aids-de-camp shall l)e entitled to be paid as such only from the day upon which iho^y rejxjrt in person for dut3^ It may however be too strict to insist upon such a rule in every case, since it is possible that duty ma}' be duly devolved upon an aid-de-camp by his General prior to his arriving and reporting at the headquarters. But exceptions to the general rule should not be admitted except where clearly jnstilied. 61, 237, August, 1893. 399. A civilian during the war of the rebellion, while with a general officer in the Army of the Potomac, often carried messages for him, voluntarily performing the duties usually performed Iw an aid-de- camp. Subsequent!}', in 1890, he asked that he be placed on the muster rolls and discharged. Held, that never having been mustered his name ought not be on the rolls. That never having been in the status of a soldier there was nothing upon which to l)ase a discharge from such status. Aflv/'sed, that his request could not be granted. Further /trid, tha't he was not, within the meaning of the proviso of Civil Service rule X, "a person who served in the military service of the United States in the war of the rebellion and was honorably discharged there- from." 37, 402, January, 1890. ALASKA. 400. By the treaty of cession with Russia, subjects of that nation inhabiting the Territory of Alaska at the date of the treaty and con- tinuing to remain such inhabitants for thi"ee years, became thereupon American citizens. But the treaty neithei' mentions nor refers to British subjects or the subjects of any foreign nation other than Rus- sia: such persons, therefore, residing in the Territory, can become citi- zens only in the mode and form prescribed by the U. S. naturalization laws. XXXVIII, 555, April, 1877. ALIEN. 401. 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, 1862, now Sec. APPEAL. 117 2166, Rev'. Sts.) to l)e admitted to })ecome citizens without previous declaration of intention, upon merely presenting to the proper court (see Sec. 2165, Rev. Sts.) a petition for the purpose, accompanied by proof of at least one year's residence within the United States pre- vious to the application, of good moral character, and of the fact of honorable discharge.' XXVII, 69, JxiJij, 1S6S; XXIX, 295, 369, SejJ- temher 2indi Octohei\ 1869; XXXI, 255, 2Iarch, 1871; 21, 108, Decem- l)e,\ 1887. 402. Held that Sec. 2166, Rev. Sts., 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) onl}'- to the military force proper." XLI, 613, July, 1879. 403. Under the act of July 30, 1892, an enlisted man, to be eligible for promotion as commissioned officer, must be a citizen of the United States. And, in order to be promptly naturalized, under Sec. 2166, Rev. Sts., he must first be honorably discharged. So, adnised that such alien, to be qualified for examination and appointment under the act, should be discharged and, after naturalization, be re-enlisted. 62, 186, Ovtoher, 1893. 404. Held that there was no law precluding an alien residing in the United States, the subject of a foreign government with which we are at peace, from displaj'ing the flag of his country on his dwelling. 15, 176, March, 1887. 405. The law does not prescribe that citizens or any other particular class of persons shall be the only competent bidders for government contracts or that aliens shall not be competent to bid. 49, 134, Sep- temher. 1891. 406. On the question whether a clause be inserted in future govern- ment contracts which would prohibit the emplojnuent of aliens on government work, Jteld. that there is no law which authorizes the insertion of such a provision in government contracts and that in the al)sence of such legislation the Secretary of War is without authority to require it. Card 2087, Fehruary, 1896. APPEAL. 407. Appeal, in the sense in which the term is emploved in the pro- cedure of the civil courts, is unknown to the military law. While there is such a thing as a new trial — a proceeding, however, of the rarest occurrence (see § 1796, ^x>6'?;), — a party legally sentenced by a competent court-martial has no right of appeal to a higher or other 'But see now the act of August 1, 1894, regulating enlistments in the army. ^Similarly held in In re Bailey, 2 Sawyer, 200. 118 APPOINTMENT. tribunal, but, in the great majority of cases, can obtain relief only by application to the pardoning power, or — where the sentence has been executed — to Congress. 1, 451, December^ 1862. APPOINTMENT. 408. An appointment (or commission) in order to take effect at all, must be aectj>ttd; but, when accepted, it takes effect in respect to rank as of and from its date, /. 6., the date on which it is completed by the signature of the appointing power, or that as and from which it pur- ports in terms to be operative.^ So hdd that certain assistant sur- geons, whose appointments were noted in the Army Register as dating from the dates of acceptance, were entitled to have such dates changed to those of the appointments as actually made; that, while the date of acceptance is important in lixing the time from which, according to par. 1448, Army Regulations, properly commences the right to pay, it is the date of the execution of the appointment itself (or the prior date, where it is made in terms to relate back) which properly fixes the relative rank of the officer. XXXIX, 609, July, 1878. 409. Where to certain appointments made on the same date a par- ticular order was given, with the intention of having the appointees rank in that order, but, subsequently, in sending the names to the Sen- ate for confirmation, this order was by mistake reversed; held^ after a confirmation of the appointees as thus sent, that this mistake and action could properl}^ have no effect to change the relative rank ot these officers as given ^n(\. fixed by the original act of appointment. XLII, 254, Ajyr'd, 1879. 410. The Constitution (Art. II, Sec. 2, par. 2) provides that " Congress ^SeeKANK, sees. 2122 to 2131, inclusive, pos<. That an appointment is complete when made out and signed by the appointing power, and confers on the appointee the right to the office, see Marburv v. Madison, 1 Cranch, 137; U. S. v. Bradley, 10 Peters, 343; U. S. r. Le Baron, 19 How., 73; Montgomery v. U. S., 5 Ct. Cls., 93. The office, however, cannot be considered as filled until the appointee has, in fact, accepted it. (Mechem on Public Officers, § 247; Am. & Eng. Ency. of Law, 1st Ed., vol 19, p. 437. ) In the absence of a statute requiring adjustment on a different basis, pay begins with the date of acceptance. (Dig. Second Comp. Dec, vol. 3, §§ 892, 908, 933. See, also, U. S. v. Flanders, 112 U. S., 88; U. S. v. Eaton, 169 id., 331; 16 Opins. Atty. Gen., 38; 4 Comp. Dec, 496; 6 id., 672.) The acceptance may be implied from the entry upon the discharge of the duties of the office (Am. & Eng. Ency. of Law, 1st Ed., vol. 19, p. 437), and such acceptance may, it seems, be of an anticipated appointment so that it will take effect and pay begin when the appointment is complete and prior to notice thereof. (5 Comp. Dec, 375. ) In cases of promotions in the Army pay is allowed by "immemorial customs and practice" from dates of vacancies. "This is the time fixed by the Army Regulations of 1863, which have been recognized and sanctioned by Congress." Dig. Second Comp. Dec, vol. 3, §§ 867, 882; 7 Comp. Dec (dated March 12, 1901). Par. 1306, A. R. of 1895 (1455 of 1901 ), provides: "A person appointed to the Army, or receiving an ai)pointment to a new office therein, is entitled to pay from date of accejjtance only. In all cases of promotion an officer is entitled to pay from date of vacancy." APPOINTMENT. 119 may by law vest the appointment of inferior officers in the President alone." So, where, in three several cases, Congress, by special legisla- tion, authorized the President to "restore," or "reinstate," in his former rank and office, an officer (who had been — as expressed in the act, or indicated 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 previous grade, held^ that such legislation empowered the President to reappoint the party without the concurrence of the Senate, and that the simple act of appointment by the President alone fully invested the part}^ with the military office.^ XLII, 178, 193, 216, 353, Fehruary and Julyj 1879. 411. The act of June 18, 1878, c. 263, s. 4, made eligible for appoint- ment, as second lieutenants, non-commissioned officers of the "com- mands" of the "chiefs of the staff corps" of the army. JIdd, under this provision, that a non-commissioned officer on detached service as a clerk in the office of the Adjutant General was eligible to such appoint- ment. XXXIX, 629, August., 1878. In a case of a principal musi- cian, who was also a lance sergeant, recommended for appointment as second lieutenant under s. 3 of the act of Jiuie 18, 1878, c. 203, hdd that neither a principal musician nor a lance sergeant was a non-com- missioned officer, and therefore that the soldier was not eligible to appointment under that statute. XLIIl, 373, July., 1880. 412. JIdd that a special authority given by an act of Congress to the President to appoint a certain civilian to '*any vacancy occurring in the grade of captain " in a certain regiment, empowered the Presi- dent to appoint the party to the next such vacancy, without regard to the claim thereto, of the senior first lieutenant.^ XXXIX, 525, May i, 1878. 413. It was provided b}^ the act of June 19, 1878, c. 263, s. 13, that no appointments or promotions should thereafter be made to fill any vacancy occurring in the army (except in certain inferior grades speci- fied) until the report of a certain joint committee on the reform and reorganization of the army, constituted by the same act, and required to make report to Congress by January 1st, 1879, should "be made and acted upon by Congress." The report was made prior to the date fixed and was considered in various forms b}^ both houses of Congress, but Congress finally adjourned, on March 1th, 1879, without specific- alh' adopting or rejecting the report as such. Held that the Congress intended by the act was the Congress by which the act was passed, ^See this ruling confirmed by the Court of Claims in Collins v. United States, 14 Ct. Cls., 568. The Solicitor General, however, in an opinion of April 10, 1879 (16 Opins., 624), had previously held contra. ^See 14 Opins. At. Gen., 499. 120 APPOINTMENT. viz., the Forty Fifth CongTess; that as this CongTess 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 militar}^ appointments might be considered at an end. But lield that the Presi- dent, in thereafter appointing- to vacancies which had in fact occurred during the period of prohibition fixed by this act, could not leg-ally date back the appointments to take etiect as of the dates of the vacan- cies, but that such appointments could take eti'ect only on or after the said March \i\\} XLII, i;>7, March, 1S79; XLIII, 85, Novetnher, 1879. 414. Ileld that the provision of sec. 6 of the act of March 3, 1869, prohibiting appointments and promotions in the medical and other stati' corps did not apply to or prevent the Jidvancement in rank of assistant surgeons from lieutenant to captain; the increased rank of these officers resulting by operation 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, March, 1871. 415. Held that a civilian (in this case a late captain who had been made a civilian bv the approval and execution of a sentence dismissing him from the army) could, under existing law, l)e appointed to the line of the army oidy in the grade of second lieutenant, in the a1)sence of express authoritj^ from Congress. For his appointment to his former grade, so as to except his case from the operation of the rule of pro- motion l)v seniority, the authority of Congress would be necessary.^ XXXVli, 363, Mn'ch, 1876; XXXVIII, 159, Juhj, 1876; XLIII, l?,i\ Jan aarij, 1880. 416. JleJd 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 power of the Executive, independ- entlv of authority from Congress; appointments to military office ]>y the President being in contemplation of law appointments for the active duties and service of the military life, which can properl}" be performed only bj^ men physically and mentally qualitied therefor. Congress, however, of course may, as it has done in several cases,* by a special enactment authorize the President to appoint an officer and thereupon place him on the retired list. XLIII, 130, January, 1880. ^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, 1(> ()j)ins. At. Gen., 651. ^'See 14 Oi)ins. At. CJen., 2, 164, 499. *See acts of Jmie 21, 1876, c. 143; June 19, 1878, c. 330; Mch. 3, 1879, c. 175; .^h-h. 3, 1879, c. 201. APPOINTMENT. 121 417. There can be no question as to the power of Congress to author- ize the appointment of an officer with both rank and pay from a back date.^ So the President (except where expressl^y prohibited by stat- ute) may, Avith the concurrence of the Senate, appoint an officer with rank from an earlier date, tliough not, except by express authority of Congress, with back pay." But where an appointment to a specific military office has Ijeen duly made and accepted and has taken effect, Jiehl that the appointing power, as to that office, is exhausted. The Executive ma}' indeed correct an erro)' (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 ])y his own action or by means of a re-nomination to the Senate, for the purpose of redressing an injury or grievance claimed ])y the officer to have resulted from the date originally given to the appointment. For such would be a granting of relief, and relief of a sort which can be accorded only b}" Congress. XLIII, 208, Fehruarij, 1880. . 418. The authority to ''appoint'' regimental staff officers, conferred upon regimental commanders ))y the Army Regulations, is no part of the constitutional appointing power, but is merely an authority to select and detail. As such it may be regulated by orders from the War Department, where desiralile to prevent its being so exercised as to prejudice the interests of the service. Thus it is competent for the Secretary of "V^''ar to direct by general order that such appointments shall not f)e dated back so as to take effect as of dates prior to those on which the}^ were actualh' made, as also that appointees shall not become entitled to the additional pay for a period prior to their enter- ing upon their duties.* XLI, 609, July, 1879. 419. The function of regimental quartermaster is not an ojfjce but merely a duty attached to the office of a first lieutenant appointed to exercise it. The authority given to the commander of a regiment, by the Army Regulations, to "nominate the regimental quarter- master to the Secretary of War for appointment if approved,"' is«sim- ply an authorit}^ 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 onl}' a power of selec- tion and detail. Under Art. II, Sec. 2, par. 2, of the Constitution, a head of an executive department cannot appoint to office without being empowered to do so by Congress. Thus, the appointment of a regi- »5 Opins. At.Gen., 101; 6 UL, 68, 74; 7 id., 709,712. 24Opins.At.Gen., 318, 603,608; 5 *r/., 1.32; 8 id., 223; United States v. Vinton, 2 Sumner, 299. •^See 3 Opins. At. Gen., 307. *See the subsequent G. O. 73, Mdqrs. of Army, 1879, in accordance witli tliis opinion. 122 APPOINTMENT. mental quartermaster being a mere detail, the Secretary of War is authorized at any time to withdraw or discontinue the appointment and service of a particular officer as regimental quartermaster, and to call upon the regimental commander to nominate another first lieutenant therefor. XLII, 567, April, 1880. 420. A regimental commander is not obliged by army regulations, to appoint to be sergeants or corporals of companies, the soldiers recommended to him for such appointments by the company com- manders. He is to be regarded as vested with a discretion in the matter, and though in the great majority of instances he will properly appoint as recommended, he may, and should, decline to appoint where he believes the nominee to be an unlit person. XXVII, 159, Septeiti- lei\ 18G8. 421. An enlisted man, beside being unmarried and not over 30 years of age, must have served honorably not less than two years, and be a citizen, to qualify him for examination and appointment as a commis- sioned officer. (Act July 30, 1892.) 57, 155, Decemher, 1892. Under Sec. 2166, Rev. Sts., an alien (of 21 years of age) who has been honorably discharged as a soldier, may be naturalized without previous declaration of intention and after ])ut one year's residence. But as the existing law contemplates that one applying for such examination shall be a soldier, such an alien, on being thus naturalized, would have to be reenlisted. Card 3366, July., 1897. The Belgian minister haying applied for the discharge from our military service of a Belgian gen- tleman who had enlisted with a view to promotion and who desired to become naturalized accordingly — advised that considerations of inter- national courtesy would justif}^ the Government in consenting to his discharge and reenlistment (after naturalization) in order to enable him to qualify himself for examination under the act of 1892. 62, 186, October, 1893. 422. The act of July 80, 1892, relating to the promotion of enlisted men to the grade of second lieutenant, provides that all soldiers under thirty years of age, having certain qualifications named, may compete for promotion under the system of examination to be prescribed by the President to determine their fitness for promotion. The act further provides for an order of merit of those successfully passing the final examination, and that they shall then be appointed in that order to the grade of second lieutenant, but that this right to appointment ma}^ be taken away by sentence of a general court-martial. Ou the question whether the President had the power in prescribing the sys- stem of examination to provide by regulation that a competitor who has obtained a place in the order of merit, shall have and retain for one year only his right to appointment Avhen reached in that order, held, APPOINTMENT. 123 that such a regulation was a limitation upon the right given the com- petitor or candidate hy statute, was not authorized by the statute and was therefoi-e invalid/ Card 3305, February, 1S98. 423. Sections 3 and 4 of the act of 1878, were expressly repealed by the act of June 30, 1892. The first act provided for a system of exam- ination by which the persons mentioned therein could be recommended to the President for appointment as second lieutenants, while the sec- ond provides an arrangement for making a list of eligil)les from which only, and in the order in which the names stand on the list, the Presi- dent can make appointments of enlisted men to the grade of second lieutenant. Card 1011, April, 1898. 424. Iltid, that under sec. 3 of the Army Appropriation Act of June 18, 1878, the filling of vacancies in the army by the appointment of meritorious non-commissioned officers to the grade of second lieuten- ant before all the graduates of the Military Academy have been assigned, would be at variance with the law. Card 3305, June, 1897. 425. The act of July 30, 1892, relating to the appointment of enlisted men as second lieutenant specifically requires two years previous serv- ice in the army. This requirement is mandatory and cannot be waived. Card 2O05, Fehruanj, 1896. 426. After his discharge from the service a non-commissioned officer no longer belongs to that class of enlisted men from which, under the act of July 30, 1892, vacancies in the grade of second lieutenant may be filled after the appointment of the Military Academy graduates. Card 3577, Octoher, 1897. 427. If an enlisted man, after having passed the final examination for appointment as second lieutenant under act of July 30, 1892, and before appointment, is, upon due examination by medical officers of the army found physically disqualified for such appointment, or an already existing plwsical disqualification is discovered or reported, the Secretary of War may and should withhold the appointment.^ Card 3577, Octohr, 1897. 428. ILJiJ, that when a soldier holding a "'certificate of eligibility" under the act of Juh^ 30, 1892, either marries or ceases to be a soldier he is no longer eligible for appointment under the act. Card 4118, May, 1898. 429. Sec. 3of the act of July 30, 1892 (G. O. 79, A. G. 0. 1892), provides ""that no more than two examinations shall be accorded to the same competitor." And par. 27, A. R. (30 of 1901), provides ''that an appli- cant who twice fails in competitive examination to obtain a certificate of eligibility as candidate for promotion cannot again compete for ^ To the same effect, see opinion of Attorney General of April 7, 1898. * See, opinion of Attorney General of June 16, 1898. 124 APPOINTMENT. that position. " Held that the regulation correctly interprets the statute as meaning- the competitive mental examination. The physical exami- nation required is merely preliminar}' to the mental, and a failure to pass it does not constitute an examination within the meaning of the statute. There must be two failures to pass the competitive mental examination to render the candidate ineligible for further examination. Card 9521, January, 1901. 430. A recess appointment is not continued b}' a new appointment and commission during a session of the Senate; the latter is a new and distinct appointment.^ Card 2805, Decemher, 1896. 431. Held that as the Volunteer Army Act of April 22, 1898, contains no express pi'ovision for the appointment b^^ any one of the regimental (field and staff) officers of a volunteer regiment composed of companies taken from two or more States, the President may under section 2 of Article 2 of the Constitution, appoint them.'~ Card 4624, Juhj^ 1898. 432. Held that as there is no law authorizing the transfer of a vol- unteer officer as such to a lieutenancy in the regular army, the words "" civil life" as used in section 5 of the act of March 2, 1899, pro- viding for the appointment of second lieutenants in the regular army, should be construed to include officers of the volunteer army; in other words the appointment of a volunteer officer as second lieutenant in the regular army would under this section be an appointment from civil life. Cards 6024, March, 1899; 6553, June, 1899. 433. Section T of the act of March 2, 1899, provides that ""no per- son in civil life shall hereafter be appointed a judge-advocate, paymas- ter or chaplain * * ^ who is more than fort^'-four years of age." The words "civil life" as here used should be given their usual sig- nification and therefore would not include persons in the military serv- ice as officers of the volunteer arm3\ In construing section 5 of this act as set forth in the preceding section it was necessary to depart from the ordinary rule that words are to be taken in their usual sig- nification, to avoid the absurd conclusion that officers of the volunteer army were, by reason of being such, ineligible for appointment as 19 Wheaton, 720, 721; 2 Opins. At. Gen., 336; 1 Fed. Rep. 104, 109; 20 Fed. Eep. 379, 382; Dig. Dec. 2d Comp. (1869), vol. 1, § 152, p. 22. ^ If a volunteer regiment is made up of separate counianies or ])attalions contributed by two or more States, the governor of each State would be entitled to appoint the officers of the com])anies or battalions by them respectively contributed in a body. He would not be entitled to apjioint the regimental officers to which the regiment is entitled by reason of its organization in that form. The same would apply to a bat- talion. If a battalion is made up of companies contril)uted by two or more States, the governors respectively of each State would be entitled to appoint the officers of the comi)anies, but the officers of the battalion as such would l)e ajipointed by the President of the United States. In all cases where appointments to such organiza- tions are to be made by the President, the same law as to munber and rank would applv that applies to regiments authorized by the laws and regulations applicable to the Regular Army. (Opin. At. Gen., Julv 20, 1898.) APPROPRIATION. 125 second lieutenants in the regular anny. But in construing section 7 of the act there is no such obstacle. Moreover, both of these statu- tory prov'isions affect the President's appointing power and should be construed most favoral)ly to it. Such was the construction placed on section 5, snpi'd, and such is the construction suggested for section 7. Before this legislation no restriction in the matter of the age of appointees for the offices of judge-advocates, pa3anasters, and chap- lains was imposed on tlie appointing power, and legislation to that effect should not be construed as creating any further restriction than the actual language demands. Ilcld^ therefore, that a person holding a commission as major and paymaster in the volunteer army who is past the age of forty-four years is eligible for appointment as major and paymaster in the regular army. Card 6553, June, 1899. APPROPRIATION.^ 434. It is a familiar general principle adopted and acted upon in the executive departments that appropriations made in conformity with estimates., and based upon them, imply an authority to expend the appropriated funds for the articles designated in the estimates and a legislative sanction of the objects for which the appropriations were asked. LI, mi), Mn/, 1887; 41, 105, 3fmj, 1890. 435. Estimates may be a legitimate means of construction of appro- priation acts based on them.'^ But an appropriation cannot be construed as appropriating for a certain article specified in the estimates^ unless it either names that article or designates a class of objects within which it ma}" be fairly and reasonably embraced.'' In the latter case it may })e presumed that Congress had in view the particular article and intended to make provision for it. 54, 112, June, 1892. 436. An appropriation made for a particular fiscal yeai- is available, for the payment of proper charges against it incurred during that year,* for a period of two years after the expiration of the fiscal year. It then lapses and is no longer available. 63, 337, January.^ 1891}.. Thus, where the annual Arnw Appropriation Act, of June 13, 1890, making appropriations for the fiscal year ending June 30, 1891, appro- priated as usual a certain sum for " barracks, quarters and other build- ings,"' held that, to have the benefit of this appropriation for the repair and reconstruction of the public buildings at Jefferson Barracks, ^ As to appropriations bv implication, see 4 Comp. Dec, 325; 6 id., 514. '^See Ohio v. Thomas, 173 U. S., 276-282. *See 6 Comp. Dec, 912. *See 1 Comp. Dec, 170; 2 id., 547, 615; 3 ("(/., 41, 623; 4 id., 553; 5 id., 318; 6 id., 815, 898. 126 APPROPRIATION. Mo., it would be necessaiy that such work should be contracted for within that fiscal 3"ear, and that the funds appropriated should be availed of and expended within two years from the date of expiration of the fiscal year.i 49, 320, Octoher] 1891. 437. Section 3690, Revised Statutes, provides that " all balances of appropriations contained in the annual appropriation bills and made specifically for the service of a fiscal year, and remaining unexpended at the expiration of such fiscal j^ear, shall only be applied to the pay- ment of expenses properly incurred during that year, oi to the fulfill- ment of contracts properl}' made within that 3'ear; and balances not needed for such purposes shall be carried to the surplus fund.^ This section, however, shall not appl}" to appropriations known as permanent or indefinite appropriations." Held., with respect to this section: (1) Where supplies are both ordered and delivered within the fiscal j'ear or a contract is made providing for their delivery within the year, the appropriations for that year are chargeable therefor, unless it clearl}^ appears that the amount was manifestl}" and largely in excess of the needs of the year, including in such needs the keeping of a reasonable stock on hand. (2) Where a contract is made within the fiscal year providing for deliveries within the year, the appropriation for that year would be chargeable therewith even if the actual deliveries were not made until after its close, subject to the limitation stated in (1). (3) Where a contract is made within a fiscal 3'ear, providing for deliv- er}' of supplies to begin in that year, and the deliveries are completed after its expiration, the appropriation for that year would be properly chargeable, if it appears that the supplies delivered after the expira- tion of the year were required to replace inroads made during the year on the '* reasonable stock on hand." In such a case the supplies could be considered as ''''for the service of that year-'''' (-1) If a non-pei^ishcible article is needed for a given fiscal year, either for actual use or to keep a reasonable stock on hand, its purchase during that 3"ear should be charged to the appropriation for that year, even though its use may be continued for several 3"ears. (5) Where a contract for a Iniilding is made and construction begun within a fiscal ^^ear, the appropriation for that year would seem to be properly chargeable therewith, even though the construction is not completed until some time after its expiration. Card 8525, June., 1900. 'See Sees. 3679, 3690, 3691, R. S., and sec. 5, act of June 20, 1874 (18 Stat. L. 110); Digest Dec. Second ('onip., Vol. 3, p. 31; Decisions of 1st Comptroller, p. 82 (1893-94). For a review of the laws and decisions relating to the covering into the Treasury of Ijalances of ai)propriations not used, see Decisions of the Comptroller of the Treasury, Vol. 3, p. 623. ^ "Congress intends that each annual apjiropriation should bear the burdens of the particular year for whicli it is granted, and that it should be for the x>i'oper use of that year, and no other." 6 Comp. Dec, 815, 819. APPROPRIATION. 127 438. Mone}' appropriated for the improvement of rivers and har- l)or.s is not available for the i)ayment of damages suffered bv individual citizens on account of injury to their property, caused by the neg-li- gence of the employees of the Government or the defective construc- tion of a pul)lic work.' 54, 800, JuJij. 1S92. 439. The River and Harbor Appropriation Act of July 13, 18!>2, con- tained the provision : ''Improving East River and Hellgate; removing obstructions" — a specified sum. ILAd^ in view of Sec. 3G7S, Rev. Sts., that such appropriation was not legall}' available for the pa3'ment of a claim, interposed by certain tug-owners for personal services in assist- ing to put out a lire on a dredge used by the Government in the improvement.' 63, 386, Fehruary^ 189 J^.. 440. Held that the funds appropriated by Congress for the improve - ment of the Ohio River were not legally available for the removal of an ice gorge closing a part of the river opposite Cincinnati and threat- ening the destruction of floating property. 57, 293, January^ 1893. 441. An appropriation act contained a simple appropriation — "for improving" a specilied part of a river named: so much. Held that such appropriation was not legall}' available for the reimbursement of U. S. employees for losses of personal effects caused b}" the sinking, without their fault, of a vessel employed in the improvement. 44, ST, Novemler, 1890. 442. Held that the expense of attending a congress of engineers in Paris, in July, 1869, incurred by an engineer officer detailed for the l)urpose as a representative of the Corps of Engineers of our Army, would clearh' not be a legal charge against the appropriation for the improvement of rivers and harbors in that officer's "district." 55, 131, Augutit, 1892. 443. Under an appropriation for the "improvement of the Yellow- stone National Park," ludd that the Secretary of War would be author- ized to purchase a bridge, the private property of a person who, befoi'e the park was reserved, had constructed the same over the Yellowstone River on one of the principal thoroughfares and where a l^ridge was indispensable; such bridge being in good condition and clearly an "improvement." 62, 15, Ocioher, 1893. 444. Under the appropriation in the army appropriation acts — "for expenses of courts martial and courts of inquir}", and compensa- tion of witnesses," Jield that the legal fee of the proper official for a certified copy of a marriage certificate, necessary to be used in ^That the United States is not legally responsible for such claims, see § 784, post. ^This claim was also of the class of claims for unliquidated amounts, the allowance of which is beyond the authority of the head of an Executive Department. See § 769, 2>o^t, and note. 128 APPROPRIATION. GA'idence in a case on trial by court martial, Vas a proper charge against the appropriation. 19, 4:'2o, Octohc/% 1887. Held otherwise as to the fees of a V . S. marshal for serving subpoenas for the prosecu- tion in such a case, there being no express authority for the employ- ment of such othcial by a judge-advocate for such a purpose; but advised that the amount charged might be paid from the appropriation for contingencies of the army. LIII, 399, Ajr/'/'l, 1887. Held that the appropriation under consideration referred to compensation of civilian witnesses only, and did not apply to retired otticers of the army ordered to appear as witnesses before courts-martial; but that the latter are entitled in such cases to the authorized mileage and to enable them to obtain the same proper orders should l)e issued in each case. 28, 291, Xorr/Nhcr, 1888. 445. Jleld thixt the appropriation for the recruiting service — "for expenses of recruiting and transportation of recruits" — was not avail- able for the payment of titileage of officers for travel while on recruit- ing service, but that the same was chargea))le to the general appro- priation for the mileage and cost of transportation of officers. 41, 105, Ifay, 1890. 446. ILld that the appropriation for the current year — ''for shelter, shooting galleries, ranges, repairs, and expenses incident thereto" — was intended for target practice with small arms, and would not cover the rental of a piece of ground for artillery practice, but that such rental, being of small amount (/. c, for the occupation of the ground for a few days only), might properly be considered a legitimate charge against the appropriation for the contingencies of the army. 62, 209, Novemhr, 1803. 447. AVhere certain officers of the army were defendants in a cause in which the United States Avas interested, and their defence, before the U. S. court, had been undertaken by the Department of Justice, held that, while not entitled to military mileage, their necessary expenses in going to, attending and returning from, the court, consti- tuted a legitimate charge against the standing appropriation * * for defray - ing the expenses " of suits in which the United States is interested.^ LI, 590, ^[arch, 1887. 448. Held that the appropriation made by the act of May 2, 1889, for the water supply of the District of Columbia, could not legally be resorted to for the defraying of a charge for the medical treatment of an employee injured on the w^ork; nor could the same be legally paid ^The payment of the traveling expenses of these officers was subsequently — June 18, 1887 — authorized, from the appropriation for continjiencieH of the army. As to future similar cases see opinion of Attorney General, i)ul)lished in Circular 3, A. G. ()., 1S87. APPROPRIATION. 129 from the appropriation for contingent expenses of the arnn'. 44, 358, Dectmber, 1890. 449. The emplo^'iiient by the month or otherwise of a civilian physi- cian to treat civilian employes of the Government engaged on riv^er and harbor improvements would not be a legal charge against the appropriation for said improvements.^ Card 169G, Septemh€i\ 1895. 450. A specific sum was appropriated for a defined specific purpose — the "construction complete of a sewerage system" at Fort Monroe — and, upon proposals being invited for the work, the lowest bid was in excess of the amount appropriated. Ildd that the statute evidently contemplated the completion of the system with the appropriation made, the intention of Congress clearly being to limit the cost of the work to that amount, and that the appropriation could not therefore legalh' be availed of for the construction of a sj^stem the completion of which would require an additional appropriation. 55, 36-i, Septeniher^ 1892. When a special appropriation is made for a certain object, it is held to be an expression by Congress as to the amount of public money which can legally be expended for that object. Cards 53, Jidy.> 189Jt; 2915, Fchruary, 1897; 3541, Septemher, 1897; 3153, Fehruary, 1898. 451. The appropriation for army contingencies is available for defray- ing* necessary expenses, arising in the current lousiness of army admin- istration, and not otherwise provided for. An amouni to make good damages to private propertv done by the falling of ice from the roof of a public building under charge of the AVar Department would not be a legal expenditure from this appropriation. 52, IS, FSruary., 1892. Nor can it be used to supplement a specific appropriation for a particular work or other express purpose which has been found to be inadequate. Thus where the sum of $6,000 was appropriated (Sep- tember, 1893) for repairs to the old Ford Theater Building, and this amount was found to be insufficient, At /cZ, that the appropriation for army contingencies could not be used to supply the deficiency." Having made a specific appropriation for repairs to the building. Con- gress nmst be presumed to have thus fixed a limit to the amount of »1 Comp. Dec.,62, 181. ^ That a specific appropriation is exclusive of the general appropriation, and the latter t-annot be used to supplement the former, unless authorized bv Congress, see 1 Con)i). Dec, 10, 57, 126, 236, 317, 417, 559, 560; 3 id., 70, 353; 4 /V/.,"24; 6 id., 743. Such authority is given as to the Interior Department, 4 id., 5. Where it is doubt- ful whether a particular item is properly payable from the appropriation for a par- ticular object or from a general api^ropriation, the matter is within the discretion of the head of the Department having control of the appropriations {Hid., 855); and where two appropriations are applicable to the same object, neither specific so as to exclude the other, they are cuumlative, and either or both may be used. 4 id., 121. 16906—01 9 130 APPROPKIATTON. public money to l)e available and expended therefor. 62, 74, Ocfoher, 1S93: Cards 53, Jahj, ISOJ^; 21>5, ^epternher, ISOJ^. 452. The appropriation for contingencies of the army is only avail- a))le for the paj^ment of such expenses, not otherwise provided for, as are necessary, usual or appropriate in connection with the operations of the arni}',^ and cannot therefore be used to provide mere gratui- ties. Thus held, that as the government was under no legal obligation to pav the burial expenses of a civilian employe in a brigade hospital, such expenses could not legally be paid from the said appropriation. Card 7030, September, 1S99. 453. The payment of copyists employed in the bureaus of the AVar Department out of the appropriation for army contingencies would be an expenditure for clerical compensation and is therefore prohibited by sec. 3682, Rev. Sts. Card 1154, Ilarch, 1895. 454. ILJd, that expenses incurred in transporting Canadian half- breed Indians from Montana to Canada would not be a legal charge against the appropriation for contingencies of the army. Card 5816, FSruary, 1899. 455. Recommended., in the absence of any appropriation specifically applicable to the sul)ject, that the amount of the insurance prepaid, b}^ the contractor in England, upon the transportation to this country of an Armstrong gun contracted for by the United States, be refunded out of the appropriation for the contingencies of the arm3\ ^53, 80, Apr!!, 1892. 456. The deficiency appropriation act of March 3, 1899, contained this provision: '* For emergency fund to meet unforeseen contingencies constantly arising, to lie expended iu the discretion of the President, three million dollars.'' Ihld^ that this fund was available for expend- iture towards the relief of the sufi'erers from the recent cyclone in Porto llico\ Card 6953, August, 1899. 457. A sum legally payable out of a specific appropriation cannot be transferred to the credit of another appropriation. 36, 265, Novemher., 1899. But this rule does not affect the proper disbursement of the sum appropriated. Thus where, in the Military Academy Appropriation Act, a certain amount was appropriated for models of guns and car- 'The words "contingent expenses" as employed in aets making appropriations mean snch incidental, casual, and unforeseen expiMises as are necessary, usual, or api)r()priate to the ol)ject for wliich the princii)al appropriation is made; and there is no discretion conferred upon heads of Dei)artments to use sueli appropriations for other puri)Oses. 4 Comi). Dec, 287; 5^;., 151. Under sec. 3683, Rev. Sts., the ex- l)enditure from such ai)i)i-oj>riations must he authorizelished in G. 0. 16, Hdqrs. of Armj^, 1880, relatin^'^ to the intrusion of unau- thorized persons upon the "Indian Territory" and declaring that the anny would he employed to effectuate their removal if necessary. ^See G. O. 39, Hd(irs. 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 — bv S. O. 194, lldcirs. of Army, Aug. 23, 1879. ARMY EMPLOYMENT OF FOR CIVIL PURPOSES. 139 490. Held that, in the execution of process of arrest under the act of March 3, 1S85 (rendering Indians amenable to the criminal laws of the Territories), the militar}^ nia}^, !>}' direction of the President, legally beemploj^ed to aid the civil officials in such arrests, such emploj^ment being expressly authorized by Sec. 2152, Rev. Sts. LIII, 272, Aprils 1887. 491. The Industrial Training School for the Chilocco Indians not being established ""at a vacant military post or barracks set aside for its use by the Secretar}^ of War," held that the Secretary would not be authorized to detail an officer of the army for duty there "in con- nection with Indian education," under the act of July 31, 1882, ch. 363. XLIX, 320, September, 1885. 492. There is not in the treaties with the Indians of the Indian Terri- tory^, or Sees. 2147, 2150, 2152, Rev. Sts., any express authority vested in the President to use the army in such territory for the apprehen- sion of local robbers or thieves, etc. , or for the protection of corpora- tions or individuals from such robbers or other outlaws, except in so far as such offenders may be persons who are in, or are attempting to enter the Indian countr}^ "contrary to law," or are Indians charged with crime. (Sec. 2152, Rev. Sts.) In these cases they could be apprehended by the military forces, but onl}^ b}'^ virtue of and con- formabl}^ to the statutes cited, and not (unless they be Indians) because they are train robbers or other offenders against the local peace or laws.^ Cards 542, October, 189 Ji.; 5354, Novemher, 1898. 493. Under act of May 17, 1884, a civil government, consisting of an executive and a judicial branch, was established for Alaska, and the general laws of Oregon were made the laws of the territory. On the question whether the army could be used to enforce the law in that territory, held., that if the United States marshal should ask for militar}^ assistance to enable him to execute a process which he is unlawfully prevented from executing, it could legally be given him by the Presi- dent. The act of June 18, 1878, does not preclude such action, because, as held Iw the United States Supreme Court, the President has by virtue of his Constitutional powers to take care that the laws are faith- fully executed and as commander-in-chief of the army the power to use force when necessar}' in the execution of the laws of the United States.' Card 3119, AprH, 1897. 'As to the use of U. S. troops in case of insurrection or riot endan34, F>i}rruarij^ 186]^. 506. The fact that a soldier has been held in arrest for an unreason- aV)ly protracted period before trial, or while awaiting the promulgation of his sentence, is a good ground for a mitigation of his punishment. XXXV. 504, July, 187Jf. 507. An oflicer is not privileged from arrest by virtue of being at the time a member of a general court martial.^ VII, 320, Jfarch, 186J^. 508. An officer under arrest is not disqualified to prefer charges. \\ 348, ]S^overabtr, 1863; XVI, QS, J/ay. 1865. 509. The imposition of an arrest affects in no manner the right of an officer or soldier to receive the pay and allowances of his rank. IX. 64, Mnj, 1861^; XIII, 386, February, 1865; XXIII. 18. Junt. 1866. Except in a case of a deserter (see A. R. 129 of 1895; 140 of 1901) 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, June, 1870. 510. The principle of the common law by which a witness is pro- tected from arrest"' should in general be applied to military cases. If it can well be avoided, an arrest should certainh' not be imposed upon an officer or soldier while attending a court martial as a witness. But such an arrest would constitute an irregularity only, and would not affect the validity of the proceedings of a trial to which the party thus arrested was sul)sequently subjected. XXXIX, 12, 2Iay, 1876. 511. A soldier Avhile confined in arrest should not be fettered or ironed except where such extreme means are necessary to restrain him from violence, or there is good reason to believe that he will attempt an escape and he cannot otherwise be securely held. XXX, 483. July, 1870. 512. As to the work which may be required of soldiers in arrest, par. 999, A. R., has been amended and interpreted by Circs., Nos. 3 and 7 A. G. O., 1890. Under the regulation as thus established (A. R. 907 of 1895; 1008 of 1901), soldiers in confinement awaiting action on the pro- ceedings of their trials are assimilated to those awaiting trial, and both classes may, at the discretion of the commanding officer, be employed, ^ But an arrest of an officer while at'tnally engaged upon eourt-martial duty should, if i^racticable, be avoided. - 1 (ireenl. Ev.. § 316; Sniythe v. Banks. 4 Dallas, 329. ARREST BY THE CIVIL AUTHORITIES. 145 separately from prisoners undergoing sentence, upon such labor as is habitually required of soldiers. More severe or other labor would not be authorized, nor would labor with a police party consisting in whole or in part of men under sentence however slight their sentence might be. ^ 41, 26, 2fay, 1890; 48, 91, April, 1891. A soldier in arrest in quarters ma}" be required to do cleaning or police work about his quarters which otherwise other soldiers would have to do for him. 49, 329, Odoher, 1891. 513. The military authorities are not empowered to make forcible entrance into a private dwelling to effect an arrest of a soldier.' Card 395, October, 189^. ARREST— BY THE CIVIL AUTHORITIES. 514. 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 b}' the civil authorities on account of a civil offence.^ XXII, 570, Jcmuarij, 1867; XXIV, 279, Fehrwtnj, 1867. 515. A soldier, arrested b}' the civil authorities and released on bail to await trial, ma}', on returning- to his station, be required to perform the usual military duty appropriate to his rank (XXIV, 279, supra), and while on such duty, his pay status is unaffected. Card 1717, Sep- teinler, 189-5. 516. A soldier who has committed a crime which has properly sub- jected him to arrest and punishment by the civil authorities cannot justly be allowed pay and allowances for the period during which he has been detained in arrest. If it should be made to appear that his arrest and detention were unwarranted on the part of the authorities, either by reason of his innocence of the crime charged, or that his arrest, because of some statutory provision, was unauthorized, he would, it is held, be entitled to his pay and allowances. His acquittal upon a trial should be accepted by the Government as conclusive in his behalf that the civil proceedings against him were without legal justi- fication. XXV, 559, May, 1868; Cards 2010, February, 1896; 7544, January, 1900. 517. Par. 1314, A. K. (1464 of 1901), declares that '• Officers and enlisted men in arrest and confinement by the civil authorities will receive no pay for the time of such absence; if released without trial, or after trial and acquittal, their right to pay for the time of such 1 See G. O. 44, Div. Atlantic, 1889. •'See Circ. 12, A. G. O., 1894. " See § o7o, antf, and note. 16906—01 10 146 ARREST OB^ CIVILIANS BY THY. MILITARY. absence is restored." Ildd that this regulation did not apply to a case of a soldier thus arrested and confined when duly absent from duty on furlough. A soldier absent on a furlough, which has not been recalled, is not withdrawn from duty by such arrest, and his pay status is not thereby changed. 56, 253, October., 1892. Where an Indian scout was arrested and detained by the civil authorities for nearly a year, and then discharged without trial held that he was entitled to his pay for the period of detention.' 32, 78, Ajyr'tl, 1889. 518. There is no statute (like Sec. 1237, Rev. Sts., relating to enlisted men) Ijy which a commissioned officer is exempted from arrest for debt, where such arrest is otherwise leg-all}^ authorized."^ XXXIII, 8, Ilareh, 1872. ARREST— OF CIVILIANS BY THE MILITARY. 519. A civilian may legally" be arrested without a warrant as well by a military person as by any citizen where he commits a felony, or crime in breach of the public peace, in such person's presence; or where, a felony having been committed, such person has probable cause for believing that the party arrested is the felon. In a case of such an arrest at a military post, the arresting officer or soldier should use no unnecessary violence, should disclose his official character and inform the part}^ of the cause of his arrest, and should deliver him as soon as reasonably practicable to a civil official authorized to hold and bring him before a court or magistrate for disposition. 41, 457, July, 1890. 520. The Superintendent of the Military Academy is not in general authorized to arrest and contine in the guard house a civilian for a mere breach of the police regulations of the Post or Academy. His proper remedy is to have the offender removed as soon as practicable, and without unnecessary force, from the reservation. 41, 457, sujyra. 521. The State of Iowa has ceded to the United States exclusive juris- diction over the portion of the Rock Island Arsenal Bridge and approaches, situate within that State. In a case of a crime or offence against the United States committed l)y a civilian on such portion, held that the commanding officer at the Arsenal would be authorized to arrest the offender and cause him to be brought before a U. S. commissioner or other official specified in Sec. 1014, R. S. He could not properly ' Digest Dec. Second Com p., A^ol. 2, § 831. '•'See Moses v. Mellett, 8 Strobh., 210; McCarthy v. Lowther, ?, Kelly, .397; Ex parte Harlan, 39 Ala., 565. But note in this connection the general principle of pul)lic policy l)y which public servants are exempted fnjni arrest on clcil (though not on criminal) process while on public duty. United States v. Kirby, 7 Wallace, 482; Coxson V. Doland, 2 Daly, ()(>. ARTIFICIAL LIMB. 147 hold the party unci notify the commissioner to send for him, but must himself have him taken before the commissioner. Where indeed no such official is accessible at the time, the commanding officer may hold the offender in the guard house, but only for such interval as may be necessary. 39, 51, Fehruari/, 1890. ARTIFICIAL LIMB. 522. The description, ""hired men of the land forces," employed in the act of Feb. 27, 1877, amending Sec. 4787, Re^^ Sts., may prop- erl}' be construed to include the mechanics and laborers employed at arsenals by the authority of the provisions of Title XVII of the Revised Statutes. XXXIX, 316, Novemher, 1877. 523. ILId that the effect of Sec. 4787, Rev. Sts., as amended by the act of March 3, 1891, was as follows: 1. All persons entitled to be furnished In* the War Department with artificial limbs or apparatus for resection, in whose cases three or more years (and less than live jxars) had, on March 3, 1891, fully elapsed since the date of their last legal receipt of a limb, &c., became entitled, on said March 3, 1891, to receive at once a new limb, as of the end of the third year from such receipt, and further to receive another new limb at the end of three years from the completion of said third year, and so on. 2. All persons who had received a liml), &c., on March 3, 1888, or on an}' subsequent date prior to the date of the act of March 3, 1891, became entitled to a new limb on March 3, 1891, or other date three j^ears succeeding such receipt, and again on March 3, 1894, or at the end of a further three years, and so on. 3. The act of 1891, being pros- pective in terms, cannot be construed as operating retrospectively or as authorizing a revision of former quinquennial receipts or money payments as their equivalents. 4. There is nothing in the amending act of 1891 to repeal, or affect the operation of, the provisions of Sec. 4788 or 4790, Rev. Sts., in regard to payments of monev in lieu of delivery of limbs. These provisions are held clearly to apply to triennial rights equally and in the same manner as they applied to (piinquennial.^ 46, 58, JIarch, 1891. 524. lle/d that the act of August 15, 1876, authorizing the Surgeon General of the Army to prescribe regulations under which persons shall receive artilicial limbs, &c.. referred only to regulations auxiliary to the act and designed to give it effect, and did not empower him to divest persons of the right of prosecuting claims for the same. XLIX, 225, Jul I/, 1885. ^Compare 20 Opins. At. Gen., 83. 148 BOARD OF INVESTIGATION. ASSISTANT SURGEON. 525. It is a peculiarity in the status of assistant surgeons (under Sec. 1168, Rev. Sts.) that these are the only officers in our army (except lieutenants of Engineers and Ordnance — see Sec. 1207, R. 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 appointing power. XLIII, 208, Fehrnary, 1S80. 526. Held that a person appointed under sec. 17 of the act of July 28, 1806, fixing the military peace establishment 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 arm}" from the date of his appointment, and as such to have precedence and priority in service, and on the Army Register, over all assistant surgeons appointed captain after himself, though they may have been appointed assistant surgeons with the rank of first lieutenants before ho was so appointed with the rank of captain; and, further, that he was entitled on courts-martial, boards, &c. , to rank any captain of the army whose ajDpointment as such was of more recent' date than his own.^ XXXIX, 191, 508, March, 1878. B. BAIL. 527. No court martial, military commander, or other military author- ity is empowered to accept bail for the appearance of an arrested party or to release a prisoner on l)ail. Bail is wholh' unknown to the mili- tary law and practice; nor can a court of the United States grant bail in a military case.'^ IX, 260, June, 186'^; XXI, 258, March, 1866. BOARD OF INVESTIGATION. 528. 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, o-tO, 21ay, 1863; XXI, ^See, to a similar general effect, opinions of the Solicitor General of June 6 and July 2, 1878 (16 Opins. At. Gen., 56, 605). ^the act of July, 1864, c. 253, 8. 7— which authorized a judge or commissioner of a U. S. district court to admit to l)ail a contractor or inspector, amenable to trial by court-martial under the then existing law, and arrested with a view to trial thereby — is no longer operative. BOARD OF SURVEY. 149 335, April, 1866; XXVI, 492, March, 1868; XXXII, 3, Ma ly,871; XLI, 263, June, 1878. Its members canuot be sworn; it cannot swear witnesses;^ civilian witnesses cannot be compelled to appear before it; nor are the witnesses who appear and testify legally entitled to any compensation for attendance or travel. XI, 672, April ^ 1865; XXI, 335, supra; XXVI, 492, supra. Such a board cannot fry, nor can it sentence. XI, 672, sxipra; XXXII, 3, supra. There is properl}- no "accused" party required or entitled to appear before it as before a court-martial or court of inquiry. II, 340, supixi. It is not restricted by law as to the period of its sittings, nor is it affected by any statute of limitations. XXVI, 493, March, 1868. Its members (though in this, indeed, it does not differ from a court of inquiry) may present two or more reports where they cannot concur in one. XLI, 207, Ajyrll, 1878. 529. As a cou74 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 serv- ice is a mere board of investigation, and can exercise none of the special powers of a court martial or court of inquiry. XLI, 263, June, 1878. 530. A clerk of the War Department applied for a boara to inves- tigate charges against him made by another clerk. Advised that such a board would not be a body recognized bylaw, and would be without judicial power and incapable of being itself sworn or of administering oaths to witnesses; that it would not be desirable to resort to such an extra-judicial tribunal where the ordinary courts could more effectually inquire and afford redress. 32, 252, 2Dnj, 1889. BOAED OF SURVEY. 531. A board of survey is not a court, and can not legally exercise the powers expressly vested \ij statute in courts martial or courts of inquiry. XXXIV, 306, June, 1873. It is no part of the province of a board of survey to convict of crime. Where such a board, in fixing upon an officer a pecuniarv responsibility for the loss of certain sub- sistence stores, expressed incidentally the opinion that the same had been stolen by a certain soldier, Jield that this opinion could not operate as a finding of theft, or constitute authority for the stopping against the pay of the soldier of the value of the stores. XLII, 605, April, 1880. ^ 532. There is no statute or regulation authorizing the swearing of a board of survey or its members, nor indeed is it necessary or suitable ^ See § 183, Rev. Sts., as amended March 2, 1901, note 1, p. 502, post. 150 BOND. that such a body, not being a court, should be specially sworn. A board of survey, moreover, has no legal capacity to swear persons attend- ing before it as witnesses; nor is it within the province of an execu- tive order to authorize such a board to administer an oath either to itself or to a witness/ V, 590, January^ 186 Jf.; XXXIII, 548, 561, Decem- oer, 1872; XXXIV, 305, Jane, 1873. 533. A board of survej', though it may not swear witnesses, may receive and file with its report affidavits of persons cognizant of facts under investigation. V, 590, Jamcary, 186^. BOND. Of Disbursing Officer,*^ and Generally. 534. The bond should of course be executed by all the parties — obligor and sureties. XXXVII, 573, May, 1876. It has been held by the U. S. Supreme Court ^ that an instrument in the form of an official bond, though without seals, ma}" be good as a contract at common law. To avoid, however, any questions that might arise from the absence of a seal, ffrZiuWZ that formal seals "of wax or other adhesive sub- stance," be in all cases required to be affixed b}' the subscribing par- ties.* XXVI, 471, Felriiary, 1868; XXXIV, 111, 112, FeljTuary, 1873; XXXVII, 573, May, 1876; XXXVIII, 101, June 1876. 535. The obligation of each surety must be for the whole amount of the penal t}"; the regulation requiring that the sureties shall be jointly and severall v bound for the whole amount of the bond. So, where the penalty in a quartermaster's joint and. several official bond was $10,000, and the sureties, in executing the same, assumed to be bound only in the sum of $5,000 each, the words "for five thousand dol- lars" being written under each signature — held that the instrument was contradictory, did not conform to the regulations, and should not be accepted. XXVI, 327, Decernler, 1867. And similarly held in a ^See opinion of Judge Advocate General publis^hed in full in G. O. 68, War Dept., 1873; also par. 712, A. R. (795 of 1901). As to the procedure of Boards of Survey, action on their reports, &c., see G. O. 179 of 1898. ^Here may be noted the opinion of the Attorney General (16 Opins.,_38) that the giving of bond is not necessary to entitle persons appointed to office in the army requiring the disbursement of money, to begin to receive pay, but that they are entitled, like other officers, to be paid upon the acceptance of their appointments, according to par. 1346, Army Regulations (1863), whether they have at that time furnished their bonds or not. ^ United States v. Linn, 15 Peters, 290. Where an official bond offered by the prin- cipal without seals was returned to him to have the seals put on, and was brought back by him with the seals attached, the consent of the sureties thereto will be pre- sumed in action on the bond, unless the contrarv appears. Moses v. U. ,s.^ 166 U.S., 571. *See the requirement to this effect subsequently published in Circular, Hdqrs. of Army, of June 11, 1869; and see A. R., 571-578 (650-657 of 1901). BOND. 151 case of a bond with a penalty of $40,000, where the sureties wrote opposite their signatures, respectiveh', "for $35,000," "for $5,000." Sureties cannot qualify their obligation by thus limiting their personal liabilities.' XXXIY, 183, 2farch, 1873; Cards 197J:, January, 1896; 2805, January, 1897. 536. There is no statute or regulation prohibiting an officer of the army from acting as a suret}^ on the official bond of another officer. Such a relation, however, is not one to be favored. XXXIV, 16-4, Ilarch, 1873; XXXVIIl, 659, July, 1877. 537- The regulations contemplate plural sureties on bonds of dis- bursing officers. A justification of a surety, however, is no part of the bond (XXVI, 327, Beceniher, 1SG7; XXXVIIl, 418, January 1877), and as the object of the justification is to satisfy' the Secre- tary of War that the sureties are good for double the penalty, the Secretary, where amply satisfied that one certain person offered or executing as suret}^ is pecuniarily sufficient for such amount, would be authorized to accept him (on his properly justif^'ing) 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 author- ity would of course most rarely be exercised in cases of disbursing officers^ bonds. XXXVIIl, 418, suj)ra; XLI, 169, April, 1868. 538. Par. 572, A. R. (651 of 1901), prescribes that non-corporate sureties to bonds given by disbursing officers will be bound jointly and severally for the whole amount expressed therein and must satisfy the Secretary of War that they are worth jointly double such amount, each surety making affidavit that he is worth that sum over and above his debts and liabilities. But where the aggregate of the amounts in which the sureties justify ecpials or exceeds double the amount of the bond, the objection that one or more of them individual!}- justified in less than that sum may be and is in practice waived by the War Department. Cards 373, September, 189}^., December, 1898; 875, January, 189o, Janu- ary, 1899; 1502, July, 1895; 1763, Octoler, 1895; 2129, 2farch, 1896; 2212, Ajnil, 1896; 3227, 2fay, 1897; 3261, June, 1897, January, 1898; 3337, July, 1897; 4554, July, 1898. 539. The certificate as to sufficiency of non-corporate sureties should state, as required by arm}" regulations that they are known to him — the official making the certificate — and that to the best of his knowledge and belief each is pecuniarily worth over and above all his debts and liabilities the sum stated in his affidavit of justification. Card 1670, Auf/usf, 1893. The certificate is not required of a coi-porate surety. Card 284, Sepfemler, 1898. ' 8ee ^Iiirfree on Official Bonds, § 251. 152 BOND. 540. 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 improper. XXXIII, 273, August, 1872 ; XXXVIII, 101, Jime, 1876. An affidavit of justification should properly be expressed in the first person* not in the third. XXXVII, 567, May^ 1876. The sureties should personally sign each his own separate affi- davit: an affidavit signed only b}^ the notary or other official adminis- tering the oath is irregular. XXXIV, 14:7, 271, 337, Fehruary and June, 1873. 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 example, in the amount stated; where there is error, the proper course is for the suret}^ to justify anew. XXXIV, 117, sv])ra. 541. Section 1191, Rev. Sts., requires bonds only of certain disburs- ing officers specifically named. In the aljsence of an}- express pro- vision of law, prescribing that bonds shall be furnished b}" other dis- bursing officers, the President, in his discretion, and for the better security of the public funds, ma}*, through the head of the proper Department, require such bonds to be furnished.^ 51, 116, January .^ 1892. 542. A bond given by a disbursing officer of the army (or any bond required by the War Department) wherein the Secretary of War is made the obligee, is in incorrect form. The obligee should be — The United States of America. 32, 131, May, 1889. 543. A bond should of course be dated, but the omission of the date will not affect the validity of the instrument, as the true date of execu- tion can be proved aliunde, in the event of a suit on the bond." 63, 387, February, 189If,; cards 3511, September, 1897; 2687, JVbvemher, 1897; 4279, June, 1898. 544. The seal of ])oth obligor and sureties must be a formal one, of wax, wafer, or other adhesive substance. A mere scroll made with the pen is not accepted by the War Department. 54, 305, July, 1892; 63, 322, January, 1894; 64, 276, Jfarc/i, 1894; 65, 190, 106, 111, June and September, 1894; Cards 771 and 893, Jan uary, 1895; 2038, Febru- ary, 1896; 2260, May, 1896. AVhere a corporation is the obligor, its corporate seal should ]je impressed on the bond if it has one. 65, 190, ^ Bonds may be required by the Government from officers appointed to places of trust, though there is nonstatutory authority to take such bonds, and they will be valid as common-law oljligations. In a bond with sureties, given by an officer of the Government, it is sufficient to make the bond valid as a common-law obligation that it is voluntarily given and that the office and the duties assigned to the officer antt covered by the bond are duly authorized bvlaw. U. S. v. Tingey, 5 Pet., 115; U. S. V. Bradley, 10 id., 343, 360; U. S. v. Rogers, 28 Fed. Rep., 607; 6 Opins. At Gen., 24. ^ Murfree on Official Bonds, § 6. BOND. 153 409, 412, 414, Jime to Septemher, 189Ii.. But the fact that a cor- poration has not adopted a corporate seal will not affect the validity of its execution of a bond in which it is principal or suret}', provided some form of seal be added to its signature. A corporation may make and use any seal in its discretion in the same manner as a private individual. L, 525, Juli/, 1886. 545. Where all the subscribing- witnesses have not witnessed all the signatures, it should be indicated on the bond l)y what witnesses the several signatures were witnessed. 37, 146, December, 1889. 546. Where a corporation is principal in a bond given to the United States, its full legal corporate name should be expressed. Thus where the laws of the State in which such a corporation was created required that the name of a corporation should always include the name of the city or county in which it was formed, and a corporation obligor had been incorporated as "The * * * Company of Baltimore City," held that the bond was incomplete unless this addition was set forth, and the instrument executed accordingly. 58, 147, Fehrnary, 1893. 547. "Where a corporation is named as principal in a bond, its cor- porate name and seal (if it has one) should be affixed l)y the officer having authorit}' to do so. LV, 686, Jane^ 1888. 548. Obligations incurred by sureties are usually considered dehts of la IV merely, and, as a rule, are paid onh" when enforced by law.^ A bond, therefore, should not be accepted where suit cannot be success- fullv brought upon it against the sureties, whose contract, on the face of the instrument, must thus be clearly valid and binding. 56, 412, Mremler, 1892. 549. A bond cannot be extended beyond the period of the original o])ligation so as to continue to bind the sureties, without their consent. XXX, 270, April, 1870. Nor can an expired bond be revived so as to bind the sureties without their consent. XXXI, 135, January^ 1871. The Secretary of War (or President) has no power to release the sureties in an official bond from their lialiilitj" to the United States.^ XLI, 169, AprH, 1878; Card lOOO, January, 1896. 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, siqrra. 550. The law of the place at which a contract is made governs as to its interpretation, except where the contract is to be performed elsewhere, in which case the law that governs in this respect is the law of the place of performance. An official bond, made to the United ' Murfree on Official Bonds, § 253. '^7 OpinK. At. Gen., 62. =» U. S. V. Kirkpatrick, 9 Wheaton, 720. 154 BOOT). States, wherever actually signed, is — as has been held by the Supreme Court ^ — a contract made and to be performed at Washington; and by the laws of the District of Columbia the contract of a married woman as surety is not binding. LII, 662, October^ 1887. Moreover, it is not the practice of the War Department to accept 2ifeme covert as a surety, and before a female surety will be accepted she is required to make oath that she is single in addition to justifying as required of other sureties. 64, 335, April, 189]^; Cards 1019, February, 1895; 1262, Ajyril, 1895; 2204, April, 1896; 2360, June, 1896; 2990, If arch, 1897; 4623, July, 1898. 551. The affidavit of justification of a surety should be dated, so that it may appear when he was worth the amount specified. 30, 233, February, 1889. The names of the sureties in the justifications should be identical with those inserted in the body of the bond. Their names should not be omitted to be recited in the bond with the name of the principal. 64, 327, AjMl, 1891^. 552. A captain of the Commissary Department having given bond in a i^enalty of $12,000, one of his sureties deceased. Par. 678, A. R. (572 of 1895; 651 of 1901), prescribes that the sureties to bonds given by disbursing officers shall be bound jointly and severally. The officer offered a new bond with one surety in a penalty of $6,000. Held that such security would not be legally sufficient, but that a new joint and several bond in the penalty of $12,000 would be required. 62, 351, November, 1893. 553. The affidavit of justification should ])e taken before some officer, like a notary public, having authority to administer oaths for general purposes and whose official character is authenticated by his seal.^ 38, 412, February, 1890; 61, 305, September, 1893; 63, 117, January, 1891^; 64, 157, 223, Mardi, 1891^; 66, 192, June, 189 J^. But as the justification is no part of the bond, and the administration of tJie oath b}^ an official not competent to administer it does not affect the validity of the bond, the irregularity of the justification, where there is nothing to show that the oath was not taken in good faith by the surety, may be waived by the Secretary of War, and in practice it is now (May, 1893) waived, and the bond accepted if otherwise valid. 59, 498, May, 1893; 62, 367, jS^ovember, 1893; Cards 28, February, 1895; 78, July, 189^; 372, Septemher, 1891^.. 554. One of two (or several) sureties cannot withdraw independently from his obligation; and if allowed to do so by the obligee, the other surety (or sureties) will be released as to him 37, 267, December, 1889. H^ox and Dick v. U. S., 6 Peters, 172; Duncan r. U. S., 7 Peters, 435. Hinder section 19 of act of Congress of May 28, 1896 (29 Stats., 184), United States commissioners and all clerks of United States courts are authorized to administer oaths generally. (3 Comp. Dec, 65.) BOND. 155 But the Secretary of War is not empowered to release the sureties on a disbursing officer's bond. Card 067, Novemher^ 189^. 655. If after the execution of a bond a material change be made in the name or description of the principal, by erasure, interlineation, or otherwise, without the assent of the sureties or a surety, even though such change be made to correct a mistake, the surety or sureties not consenting will be released. In a case of such an alteration, recom- mended that a new bond be required. 35, 283, 8epteml)ei\ 1889; 57, 41, Decemher, 1892; 58, 400, March, 1893. Similarly held, where the name of one of two sureties was erased and a new surety was sub- stituted without the consent of the remaining surety, and recowmended that the written assent of the latter to the erasure and substitution be obtained. 1 Card 1262, J/«y, 1895. 556. The giving of a new bond by a disbursing officer — l:)oth the old and the new bonds being conditioned to become void if he should "henceforth during his holding and remaining in said office carefully discharge the duties" of said office, /. e., the office of commissary of subsistence with the rank of Major — would operate to divide the responsibility as to future transactions between the old and the new sureties but it would not release the old sureties. ** Cards 667 and 671, November, 189 J^; 733, Becemher, 189 1^. 557. The official bond of a disbursing officer being in terms limited to the office he held at the time he gave it, becomes inoperative upon the promotion of such officer to a higher grade. He thus enters upon a new office and a new bond is required. The old bond remains, how- ever, a valid obligation to cover any defaults which may subsequently be found to have occurred between the dates of its execution and the date of the officer's promotion. Card 1999, June, 1896. 558. Where certain disbursing officers — commissaries of subsist- ence — were promoted during a recess of the Senate, received their let- ters of appointment, accepted and qualified thereunder, held, that by so doing they ceased to hold their old offices and became invested with the new offices (the terms of which were limited to the end of the next session of Congress), and that therefore under Sec. 1191, Rev. Sts., and A. R. 571 (650 of 1901), new bonds should be given. And further 'Brandt on Suretyship and Guaranty, second edition, §§ 380, 381, 385. ■^See Digest Dec. Second Conip., Vol. 3, § 1356; American and English Ency. of Law, Vol. 24, p. 877; 5 Conip. Dec, 918. The form of official bond authorized by the Secretary of War, Dec. 14, 1895, was conditioned that the officer should at all times " henceforth during his holding and remaining in said office, until a new official bond in his case shall be approved by theSec- retari/ of War, carefully," &c. (Card 1769); and the form authorized Dec. 31, 1900, is conditioned that if tlie officer "shall and do at all times during his holding and remaining in said office, _/>''//; and Including Ihc date of approval of this bond by the Sec- retary of War thenceforth until the date of approval by the Secretary of War of a new official bond in Ms case, careiully ," &c. (Card 9482.) 156 BOND. held^ that after the appointment, confirmation and commission of these officers new bonds would again be necessary/ Card 3689, Noveml)ei\ 1897. 559. Where an officer of the line was appointed captain and com- missary of subsistence during a recess of the Senate, held, that in view of the provisions of Sec. 1191, Rev. Sts., and A. R. 571, he should furnish the bond required before entering upon his duties under such appointment whether or not he had resigned his line commission. Card 3775, Mvemher, 1896. 560. An officer of the subsistence department (regular establish- ment) was appointed chief commissary with rank of lieutenant colonel in the volunteer army and gave the prescribed bond. While serving in the latter capacity he was promoted in the subsistence department of the regular establishment. Held., that it was not necessary to require of him a bond on account of such promotion until it was proposed to place him on duty in the office resulting therefrom. Card 4311. July. 1898. BOND— Of Contractor or Bidder. 561. The general rule that bonds given to the United States should be under formal seal, applies with particular force to contractors' bonds.- XXVIII, 680, June, 1869. 562. Where a contractor offered a bond, subscribed, as sureties, 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, April^ 1878. 563. A bond for the faithful performance of a contract will not cover material modifications thereof, in the form of a supplemental agreement or otherwise, unless the sureties formally assent to the same. Card 121:1, April., 1895. And recommended that such assent be obtained. Cards 858, January, 1895; 966, Felrruary., 1895; 2093, March, 1896; 2705, October, 1896; 3162, August, 1897. 564. A bond was executed on a certain date, and it was recited therein that the principal had on a subsequent date entered into the contract for the due performance of which the bond was given. The fact that the bond was executed before the contract was, is immaterial, but the recital is a part of the means of identifying the bond and should not be contradictor3^ Recommended in the particular case that to lU. S. V. Kirkpatrick, 9 Wheat., 720; 2 Opins. At. Gen., 336; 4 id., 30. But see, now, the new form of bond, the condition of which covers both offices, until the approval of a new bond (Card 10166, April, 1901) . ^A regulation to this effect was prescribed in G. O. 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 lionds of contractors and bidders; alao paragraphs 515-578, A. R. of 1895 (593-657 of 1901). BOND. 157 avoid in the event of a suit on the bond the necessity of resorting to outside evidence to identify the contract, a new bond be required, the latter to refer to the contract as one which lo'ill he entered into. Cards 2765, NoverrJ)ei\ 1896; 3053, Ajjril, 1897; 3164, Aj^riJ, 1897; 3640, Noveinl)e'i\ 1897. 565. Where the sureties to the bond of a contractor who had failed to perform 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 authority, upon such or other ground, to release sureties who had become legally liable to the United States.^ XXXVII, 275, January^ 1876. 566. A contractor for ""personal services" is not in general required to give a bond. XXXVIII, 238, August, 1876. 567. Held, in view of the provision on the subject of the act of April 10, 1878, it was proper to require that bidders for contracts, from whom bonds were required, should properly bind themselves not to withdraw their bids within sixty da^^s from the date of the opening of the bids. In the great majoritv 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. Cases, however, may occur where, owing to questions raised as to the legalit}' or regu- larit}" of bids, the competency 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 provide. XXXIX, 628, Aug^ist, 1878. 568. Under the act of March 3, 1883, c. 120, a bidder whose bid has been accepted, is required, in accordance with the terms of his guaranty, upon notice to him of the acceptance, to enter into contract and fur- nish bond for the proper fulfillment of its stipulations; but if such bond should not be given, and a contract should be entered into with some other person, such contract is not required, hj the statute, to be accompanied by a bond. 60, 285, July., 1893. 569. The purpose of a bidder's guarant}^ is to furnish sufficient secu- rity that the bidder will, if his bid be accepted, enter into contract as prescribed. But the direct object is to enable the government to^ col- lect the difference between the bidder's bid and the amount the govern- ment would have to pay some one else for the supplies or work in case the bidder should not enter into contract according to his bid. The guaranty cannot be used to force him to enter into his contract; ^See 7 Opins. At. Gen., 62; and compare § 926, post. 158 BOND. but it is valuable and essential in the event of a suit to recover such difi'erence. It should therefore be as formal and legally sufficient as a contractor's bond, and prepared with a view to serving as a l^isis for a legal claim by suit if necessary. 56, 4:12, N^ovember, 189^^ There is no statute requiring such a guaranty, but under the act of March 3, 1883 (22 Stat., -488), the Secretary of War may require one. Card 9061, Octoher, 1900. 570. The giving of bonds to secure the performance of contracts made for furnishing supplies, doing work, &c., for the War Depart- ment is not required by statute, but is a subject of administrative regulation.^ So, where the amount involved in a contract for com- missary stores was small, advised that the Commissary General be authorized to approve the contract without a bond. 16, 167, April., 1887. So, advised that the Secretary of War was empowered to dispense with bonds to secure the performance of contracts for furnishing meals to recruiting parties and recruits; he being indeed authorized to dispense at discretion with all contractors' bonds, where such are not specificalh' required." 65, 233, June, 1891^.. 571. A bond to secure the performance of a contract is valid to secure the performance of an}' such modifications of the stipulations as are authorized by the terms of the contract itself, but will not cover modifications not thus authorized and which substantially make of the stipulations a new contract. 54, 7, 162, May and Jiine., 1892. 572. Where a contract of lease was secured by bond and the lessee applied for a matci'ial delay in making payment of the rent, held that to grant such application would discharge the sureties unless the}' gave their assent to the delay, and recornmended that the same be not acceded to without their consent to the arrangement.^ LVI, 196, May, 1888. 573. There can ))e no legal authority, after a contract has been com- pleted, for assigning the bond to creditors of the contractor (whom he owes for materials furnished him) to enable them to sue him upon it in the name of the United States.* 61, 16, August, 1893. 574. Held that a memlier of Congress may legally be accepted as surety on a contractor's l>ond to secure the fulfillment of a contract with the United States, his acting as such not being precluded by the provisions of either Sec. 3739 or 3712, Rev. Sts. XLIX, 377, Ocfoher, 1885. 'The act of Aug. 13, 1894 (28 Stats., 278), directn that bonds shall be reciiiired with formal contracts for the construction of, or repairs upon, public buildings and public works, and that such bond shall contain a provision that "the contractor or con- tractors shall promptly make jiayments to all persons supph'ing him or them labor and materials in the prosecution of the work ])rovided for in such contract." '^ See par. 559,A. R. (()38 of 1901), as to the cases in which such bonds may be waived. ^ Murfree, Official Bonds, § .31(5. ^ But see the recent legislation of Aug. lo, 1894, citi'd in note to § 948, poxt. BOND. 159 BOND— Of College, &c., as required by Sec. 1225, Rev. Sts. 575. A bond executed in his official capacity by the president or other officer of an incorporated college or university, to secure arms. &c., issued under this section, cannot properly be accepted as bind- ing the corporation without evidence that, by the act of incorpora- tion or otherwise, such officer is legall}^ empowered to act for and bind the institution. XLI, 4!)!), Felmmry, 1879; 617, Avgv.^t, 1879; XLIII, TO, Octoher, 1879; 275, 291:, Aj>r!l, 1880. 576. The obligor and sureties should be bound without condition or reservation. Where a bond offered by a college contained a pro- vision to the effect that to satisfy any liability incurred thereunder, recourse should be had to the property of the college before the prop- erty of the sureties was resorted to, advised that such bond be not accepted by the Secretary of AVar. XXXVIII, 310, Octohcr, 1876. 577. No form for the liond being prescribed in the statute, the Secre- tary of War may, if he deems the security ample, accept a bond with (me surety, or he may even accept the bond of the corporation with- out sureties. In general, however, 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 man- ner. XXXIX, 312, JYovemher, 1877. 578. Though bonds in wdiich the corporation controlling the insti- tution is principal have usually been tendered under the statute, the same are not essential. The bond of an individual as principal — the president or other officer of the institution or other person in a private capacity — may properly be accepted if the security is deemed sufficient. XLII, 598, Ajjr;i,1880. 579. The bond offered by a college, &c., pursuant to Sec. 1225, Eev. Sts., must be executed by the proper obligor and legal principal. If executed by a corporation as such, the name as signed must he the corporate name, i. e. the same as that given in the articles of incor- poration expressed in full. 42, 113, Jidi/, 1890; 62, 4(30, Decemhei\ 1893; 63, 117, January, 1891^; 65, 38, May, 1891^. Where the corpo- ration, as created by the legislature, is a body of persons, as "Trustees," or "Board of Trustees," or "Regents," &c., the bond umst be executed in the corporate name of this body ^^J some one duly authorized thereby, and not in the name of the "college" or "univcrsit}'," the latter being merely an institution of learning or jt?rc>/?(?/'?'y, having no legal existence as a person. 29, lOl, January., ASX9; 30, 304, FSrxary, 1889; 48, 226, July, 1891; 49, 158, SejJtrmher, 1891; 58, 7, February, 1893; Cards 28, July, 1891^; 2038, Fehruary, 160 BOND. 1896^ and August^ 1899. The name of the corporation, as it appears in the body of the l)ond and in the execution, should be the same. 62, 122, Octoher, 1893. If the name is impressed on the seal, it should agree with that of the execution, though if the latter be correct, a variation in the seal will be immaterial. 31, 300, April., 1889. 580. The bond of a corporation must be signed for it by the officer of the corporation or some other person authorized to do so. If the corporation consists of a certain l)ody of persons, or if such a body be specifically designated in the articles as empowered to authorize such acts as the execution of bonds for the corporation, the authority can not be delegated to other persons. Thus where, under the articles, the power is vested in a board of trustees, it would not be legal for such board to delegate the authority for executing the bond to an executive committee of the board. 29, oOT, January, 1889; 39, 475, March, 1890; 56, 278, 308, Mve7nber, 1892. 581. Where the articles of incorporation do not recognize such a bod}^ as an "Executive Committee" of the trustees, regents, &c., as empowered to act for the corporation, but simply devolve the manage- ment and control of the corporation upon a board of trustees, r IIm- l)oiir<|, duly uiillioi'izcd llicir- Picsidcul,, or- oMicf odict-r. to <-xccul(', flic l)ori(l I'of llic (•()r|)or'!i( ion, llicic, should lie, rmnislicd, vvilli tlic, <^X('-cul('d itoiid, ;iM cNidi'Mcc of IIk; j(!(»alil,y of iho (\\r|)oration. 29, HK!. 30, -b'.l, 33, i:!'J<», 39, iTr., 40, :;<;."., 41, .",(»!>, 48, ^520, Jainuirii, IHH'J, to J,ihj, IS!) I; 55, Isd, 56, .".!», :'.0S, 60, .">(;<;, 62, 122, 2H1, 400, AikjuhI, IHtm, to lJec(uiilm; IHU.',; 63, .".22, lOS, 64, i 17, 270, 'M)\, 65, 102, VM),M)<\,.hii>- Hdri/ Ui AiKjiisI^ iHDJi,' Cards 01 1, Noiyinlx'r, IS!)J,; 771, !S'.K{, .A//a//c//7/, iSltr,; 2200, Mdi/, iS'.Xi; 20;{S, Aiu/n.'^l, IH!)!). 587. W^liei-e the coilce-e was not iiicorporat(*d, and Iherefoi'c could not, enter into IIk^ bond, and its trustees were, iiiendy ap[)oint(!(!s of (M'ltiiin ieo(.tits of eSV/>/r/y//A'/-, IS!);i. Where such an uniiK-orporalcd university was the prop(M-ly of a State, hrhl that the State would be the proper piincij)al in the bond. 42, \\\^^'/iih/, IS!)I). Where a colleec is not an incorporate*! inslitution, a boai'd of trustees chai'c-ed with its MianaH-cincnt is not legally authoi"i/ed to j^ivc the bond rc<(uiivd by the statute. 40, KiS, JA/y, IS!)I). 590. Sec. 122;., K'ev. Sis., as amended l»y the act of Septciiibci- 2(), BOND. 163 1888, c. 1037. prescribes that u })ond shull l)e furnished "in double tho value of thond as offered was twice as great as the sum for which the president was, by resolution of the board, authorized to give bond, held ih'At the bond could not, for this reason, be ac(;epted and that a new bond should ])e furnished. 35, 82, Sep- tet, >her, 1889. 592. A form of bond presented for acceptance under the statute, which failed to recite that the college was of a capacity to educate one hundred and lifty male students, the complement required by the act of Septembei' 28, 1888, but stated its capacity as extending to the education of eighty only, held defective and not legall}'^ acceptalihr. 65, is, J/ay, 180.lt.. It should be specifically stated in the bond that the capacity was for the education of 150 male students. 65, 182, June., iHOJt. 593. The bond offered under the statute should not omit the insurance clause, /. e. shoidd contain a condition to the effect that the obligor shall keep the property duly insured until returned to the United States.' 63, 322, January, 180 J^. BOND — Of States, &c., for ai-nis, &c,, furnish<'d under statute. 594. The joint resolutions of Juh^3, 1876, and June 7, 1878, author- izing the Secretary of War to issue arms to certain States and to the Territories, provide that the governoi' in each case shall "give good and sufficient bond for the return" of the arms, &c., or payment for the san)e. Held that a bond given, under these statutes, by a governor of a Territory whose legislature had not authorized him to bind the Territory in this manner, could have no further legal effect than as the ^A^Asw/rt/ o})ligation of the governor; that what the statute contem- l)lated was an official bond; and therefore that a governor's bond, givcin in the absence of special authority devolved upon him by the legislatui'e to })ind thereby th(i Territory, could not legally be accepted by tlie Secretaiy of War. XXXVlfl, 167, July, 187G; XLI, 167, Nfyveniler, 1878; XLIII, 78, 93, Mvember, 1879; LIII, 36, September, 'Tlic laws and regulatioiiH governing the giving of bonds Vtv colleges, &c., under Sec. 1225, Kev. Sts., are set forth in (1. O. 70, A. G. O., 1897. ' But see the further jirovisions of 8ec. 3 of the art of Feb. 26, 1901, amending Sec. 1225, Rev. Sts. 164 BOND. 1886. And similarly held of a bond given by the governor of a State, upon an issue of camp and garrison equipage under the joint reso- lution of June 20, 1878. XXXIX, 656, Septemher, 1878. 595. As the Secretary of War is empowered, in his discretion, to require bonds of disbursing officers of his department, though the same may not be prescribed by statute, so, in the case of the ord- nance authorized, by the act of February 8, 1889, c. 116, to be deliv- ered to the national volunteer homes, held that the Secretary of War would properly require that bonds be furnished for the safe-keeping and due return of such ordnance, though no such condition was indi- cated in the statute. This under his general authority as head of the department entrusted with such property, and in view of the provision of the act that the ordnance shall be delivered "subject to such regu- lations as he may prescribe." 51, ■11:6, January, 1892. BOND— Of Surety Company. 596. By Sec. 1191, Rev. Sts., the Secretary of War is empowered to decide upon the sufficiency of the bonds of disbursing officers of the army; the accounting officers of the Treasury having no authority in this regard. Held, therefore, that the Secretary was legally author- ized to accept secuiHty conqxinies as sureties in such bonds, similarly as in the case of the bonds of contractors with the United States. 50, 118, Xovemljer, 1891. 597. Under regulations published in G. O. 52 of 1893, as amended, entitled " Regulations and Instructions relating to Bonds of Contract- ors, Bidders, and Disbursing Officers," the War Department accepts, as surety on the bonds both of contractors and disbursing officers, "any company which is duly incorporated under the laws of the United States, or of any State, and is legally authorized to become such surety." Whore a suret}^ company has already on file in the War Department, the papers called for by the regulations, it is not required, in the absence of any change of its status, to re-furnish the same in connection with bonds which it may execute. 60, 1:1, Juney 1893; 63, 12Y, January, 189J^. 598. Held, that a bond of indemnity of a security company might, in the discretion of the Secretary of War, legally be accepted in place of the usual bond, given under Sec. 1225, Rev. Sts. Such acceptance would not j)e'^ •s, October, 1890; C, 205, 208, 209, October, 1890. Plans are insufficient as a basis for action where they do not show what the statute re- quires.^ Where the special act designates the kind of bridge author- ' In practice, however, the location and plans of bridges have been approved, although the map of location failed to show all the details specified in the sitatute, the provisions of the statute, in this respect, being treated as directory. BRIDGE. 171 ized, details of the plan, &o., the Secretary of War is empowered to approve only such a liridg-e and such plans as comply with the statute. If he give his approval to others, his action will be ineffectual in law, and the bridge if completed will not be a legal structure.^ C, 229, JTo- vemher, 1800; Cards 1477, June, 1895; 1532, July, 1895; 8S92, Sej)- temher and Novemlxr, 1900. 621. Where the special act does not rec^uire that a plan of the bridge shall be approved by the Secretary of War, he will preferabl}- not give his approval to any plan, since if he did so he might perhaps com- mit the government to the sanction of a l)ridge which might prove to be an obstruction to navigation, 25, 96, June, 1888. 622. Where a special act authorizes the placing of a bridge across navigable water of the United States, by a railroad or other corpora- tion, in addition to the plan of location and particulars required by the statute, a standing '"rule" of the War Department of July 31, 1880, requires certain other evidence to be submitted to the Secretary of War, to establish the legal existence and authority of the corpora- tion and its acceptance of the pi'ivileges and conditions granted and imposed by the act." LIII, 379, April, 1887; LVI, 574, Sej^temher, 1888. In particular cases still other evidence may be essential; as in a case where there has been a consolidation of two companies, when copies of the agreement and of the enactment authorizing the con- solidation, &c., should also be submitted. LII, 199, 2[ay, 1887. 623. Under the rule of July 31, 1886, it has been decided by the Secretar}^ of War that the copy of the charter or articles of incor- 1 See Hannibal & St. J. E. Co. r. 3Iissouri River Packet Co., 125 U. S., 260, 263; Mis- souri River Packet Co. v. Hannilial & St. J. R. Co., 2 Fed. Rep., 285; Gildersleeve v. New York, N. H. & H. R. Co., 82 Fed. Rep., 76.3; Assante v. Charleston Bridge Co., 41 Fed. Rep., 365. - This rule is as follows: Rule to he observed when application is made, pursuant to an act of Congres.., for the approval by the Secretary of War of j^lans for a bridge, or a right of tvay, or other privilege. When an act of Congress granting a privilege to an individual or a corporation contains a clause requiring the approval of the Secretary of War to certain matters of detail, the grantee will be required to establish his identity; if the grant is to a corporation, there will be required a copy of its charter or articles of incorporation, and of the minutes of the organization of the company; also extracts from the com- jiany minutes showing the names of the present officers of the company and the acceptance by the company of the provisions of the act of Congress, all i)roperly authenticated. Tlie identity of the grantee having been established, and the provisions of the law having been complied with, the terms, conditions, requirements, &c., will be reduced to writing. This pajier will 1)6 signed by the grantee in token of his acceptance of the con(litions imposed, and will be approvect by the Secretary of War, one copy thereof to be filed in the War Department and the other given the grantee. Wji. C. Exdicott, Secretary of War. "War Department, July 31, 1886. 172 BRIDGE. poration of the company should l)e authenticated under the signature and official seal of the Secretary of State, or other proper State official, in whose office the original is on file. Held that a printed copy of a cop3', under the certificate of the Secretary of the compan}^ and its corporate seal, was not sufficient eyidence. LIII, 32, 37, Septemher, 1886. But the fact that the company has not furnished proper eyi- dence of its incorporation does not affect the jurisdiction of the Secretary of War to approye plans of a bridge submitted, and the objection may be waiyed. Card 447, October, 1891^.. 624. Jleld that the statement of the Secretary of the company that it had accepted the proyisions of the special act (or of the general act of July 5, 1884), was not proper eyidence under the rule, but that there should be furnished a duly authenticated extract from the min- utes of the company exhibiting the fact of acceptance. It should simi- larly be shown that the map of location and plan of bridge submitted haye the approyal and sanction of the company. LIII, 12, 163, Sep- temher and Octohci\ 1886. 625. It is well-settled that an unrestricted grant of an authority to construct a railroad from one designated point to another includes by implication the authoritj' to bridge nayigable streams en route., where the road cannot practicably or reasonably be constructed without cross- ing them.^ Thus, where, by an act of Congress of June 1, 1886, authority was giyen to a railway company to construct and operate a railway through the Indian Territory, from a point at or near Fort Smith to a point to be selected by the company on the northern boun- dary line of the Territory, held that the companj- would be authorized to bridge the Arkansas riyer. 25, 92, June., 1888. Similarly held as to bridging the same riyer b}'^ the Kansas City, Pittsburg and Gulf Railway Company under the act of Congress approyed February 17, 1893. Card 1510, July, 1895. 626. An act of May 14, 1888, in authorizing the Tennessee Midland Railwa}' Company to bridge the Tennessee Riyer, proyided ''that this act shall be null and yoid if the actual construction of the bridge herein authorized be not commenced within one year and completed within three years from the date of the approyal of this act." In the absence of words making time an essential element of the performance, legis- latiye acts of this character, although the}' may designate a period within which a certain thing is to be done, are construed to be direc- torj' onh' and not mandatory as to time. But held here that the statute was mandatory and that the time specified was made of the essence of the grant, and therefore that the company, in applying for the 1 Gould on Waters, 3d Ed., § 129; Fall River Iron Works Company r. Old Colony and Fall River R. R. Co., 5 Allen, 221; U. P. R. R. Co. v. Hall, 91 U. S. S43. BRIDGE. 173 approval by the Secretary of War of the location and plan, required by the act to be approved by him, must show that the work had been commenced within the time lixed. 33, 409, July^ 1889; 47, 99, May, 1891; Card 8736, Augmt, 1900. 627. Where the act of Congress authorizing- the construction of a ])ridge tixes the time for the completion thereof, the Secretarj^ of War cannot grant an extension of the time. In such a case the bridge should be completed as soon as possible and application made to Congress for the necessary extension. Card 250, ISfovemher., 189 J^,. 628. The bridge across the Mississippi River connecting the cities of Rock Island, Illinois, and Davenport, Iowa, belongs to the United States, which has complete control of the same, subject to the right of way of the Chicago, Rock Island and Pacific R. R. Co. (under the acts of June 27, 1866 and March 2, 1867). The bridge is l)oth a wagon and a railroad bridge. The railroad compan}^ has no interest in or authority over the wagon way or right to dictate what use shall be made of it. The wagon way is established for the use of the United States, not for that of the public, but has been opened to the public for passage and transportation subject to conditions, one of which is that certain rail- road freights shall not be conveyed over it. Held that neither the railroad company nor the commanding officer of the arsenal was authorized to prevent the American Express Company from hauling across between the two cities express matter not of the character 'pre- cluded by such conditions. 34, 213, Jidy, 1889. 629. Authority granted by an act of Congress to a corporation or an individual to construct a bridge over navigable water of the United States is a franchise which cannot be assigned without the permission of the grantor.' And the Secretary of War cannot in such a case lawfully entertain an application for the approval by him of the plans of a bridge made by a party or a corporation to which the right to build the bridge has been, without the authority of Congress, trans- ferred. XLIX, 618, Decemher, 1885; 31, 378, Ajyrll, 1889; 32, 469, June., 1889. Where a specific grant to build a bridge for a specific purpose — i. e. to complete its line and to accommodate the public — is made to a railroad corporation by an act of Congress conferring no power of substitution, new legislation is requisite to authorize the transfer of the franchise to another company. XLIX, 618, supra; 630. January, 1886; Card 1660, August, 1895. 630. Where the authority for the bridge is given in terms to the company, "its successors and assigns," it is held that these words, being the ordinary words of limitation of an estate granted in per- 1 Branch r. .Tesup, 106 U. 8., 468; Thomas v. Railroad Co., 101 TJ. S., 71. 174 BRIDGE, petuity to a corporation, confer no right of transfer/ There must still be specitic authority of statute for the purpose, or the transfer, if assumed to be made, will l)e inefl'ectual and void. 31, 378, April, 1889; 34, 276, August, 1889. 631. Where the plans were submitted and the approval of the Sec- retary was applied for, not by the corporation to which the authority to build the bridge had been granted by an act of Congress, but by a construction company, which, by contract, was to erect all the liridges for such corporation, and to own them when completed, held that the Secretar}" of War could not legally approve the application, the sub- stitution of the company not having been authorized l)y Congress. 31, 378, April, 1889. 632. The acts of July 5, 1884, c. 229, s. 8, and August 11, 1888, c. 860, s. 'J, in providing for the removal of obstructions to navigation caused by l>rldeing wanting — the charge and specification, taken together, omitting this clement, made out a sufficient pleading of a disorder to the preju- dice of good order and military discipline, under the 62d Article of war.' XXXVIII, 391, December, 1876. And similarly held of an offence charged as "conduct to the prejudice, etc.," and described in the specification as " burglariously " breaking and entering a post trader's store in the day time. XXX, 518, August., 1870. c. CADET. 643. An unemancipated minor can acquire no residence distinct from that of his father or parent;^ otherwise in the case of an emancipated minor. Card 6615, June, 1899. So Jield that unemancipated minors whose fathers resided in certain States and congressional districts, 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, Kev. Sts." XXIX, 83, Jidy^ 1869; XXXI, 313, April, 1871. ' See G. C. M. O. 205, Hdqrs. of the Army, 1876. ^See Crawford v. Wilson, 4 Barb. 505; Brown v. Lynch, 2 Bradf. 214; Wheeler v. Burrow, IS Ind. 14; Hiestand c. Kuns, 8 Blackf. 345; Allen r. Thomasen, 11 Humph. 536; Hardy v. De Leon, 5 Texas, 211; Story, Conflict of Laws, § 46. 'This ojunion was concurred in by the Attorney General, in 13 Opins. 130. 16906—01—12 178 CADET. 644. ITeld that a minor whose father was a foreigner domiciled in Cu))a, and who was himself connnoraiit in the United States only for the purpose of being educated, was not eligible for appointment as a cadet from a congressional district. XXXV, 446, Jwne^ 187 If.. 645. ILld that the mere fact that an officer of the army was on dutv under militar}' orders in a certain Territor}-, did not make his minor son eligible for appointment as a cadet from such Tcrritorj^ the fact of the father's being thus on duty not being sufficient evidence of his being a legal resident therein. XXX, 528, July, 1870. So where an army officer was temporarily' on duty as military instructor at a college in a congressional district which was not his actual resi- dence, held that his uuemancipated minor son commorant there was not eligible for appointment as a cadet from such district. Card 1220.^ A2>r!l. 1895. 646. 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 customar}', though the same is not required by law, for the President, in appointing cadets from congressional districts, to appoint them upon the nom- ination of the members of Congress representing such districts in the House of Representatives. But where a member of the Forty Sixth Congress, representing a certain numbered district of a State, nom- inated for appointment as cadet a resident of a count}' not within such district as previously constituted, but within a new district having indeed the same number but constituted mostly of different counties, and which had been created by the State legislature in a redistrict- ing of the State since the election of such member, lidd., that such nomination could not properly be accepted by the President as a basis for an appointment. This, for the reason that the member, at the time of the ni)mination, did not represent 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 Congress would commence to exist. XLII, 601, A2)rll, 1880. 647. Under the law the power of appointing cadets is in the Presi- dent; and with the exception of the cadets appointed at large, the appointments are required to be made from "actual residents of the congressional or territorial districts or of the District of Columbia, respectively, from which they purport to bo appointed". The privi- lege of selecting those appointed from congressional districts, which has been accorded to members of Congress, is one which rests on reg- ulation and long practice, and this privilege is limited to the nomina- tion of such persons as meet the rtM|uii-('ments of law. In making the CADET. 179 appointments it is the duty of the President to appoint only such per- sons as comply with the provisions of the Statute, and the decision of the Representative in the matter does not relieve him from this duty. Card 6615, June, 1899. 648. The State of Ohio having been re-districted by an act of its legislature, hdd, — 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 resi- dence when appointed: 2, That existing conditional appointments made under Sec. 1317, Rev. Sts., providing that such appointments 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 appointments should be made according to the districts as newly established and numbered; an3'^ increased delav 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, June., 1878. 649. Sec. 1317, Rev. Sts., prescribes that cadets shall be appointed one year in advance of the time of their admission to the academy, &c. It is to the date of appointment and not to date of admission that the qualitication as to residence (Sec. 1315, Rev. Sts.) refers. Thus hdd, that a change of residence by a father would not affect the appoint- ment of his minor son, legally made prior to the change of residence.^ 45, 288, 303, February, 1891. 650. Assuming that an emancipated minor is so far sui juris that he can acquire and change domicil like a person of full age. the same rule of intention applies to determine the question of domicil in his case as in any other — there must be an animus manendi. So where an alleged emancipated minor took up a so-called residence in a congressional dis- trict other than that of his father's habitation, which residence was intended to be merely temporary and was resorted to for the sole pur- pose of securing an appointment as cadet from that district. Idd that such supposed emancipation and pretended change of domicil could have no legal effect in qualifymg the part}' for such an appointment under Sec. 1315, Rev. Sts. LVI, 473, August, 1888. 651. A party was duly nominated and appointed as a cadet for a cer- tain congressional district one 3'ear in advance agreeably to Sees. 1315 ^See 13 Opins. At. Gen., 130. 180 CADET. and 1317, Rev. Sts. Later, another party was, b}- the same member of C'oiitjTess, nominated for a^?/v>?v'.v/<>/*f/7 appointment, — /. e.^ an appoint- ment in the event of the regular nominee being found disqualified or failing to pass the examination, — and was appointed according!}'. Sub- sec jucMitlv, the regular nominee having resigned his appointment, a third person was nominated in his stead by the same member, and (under Sec. 1317, Rev. Sts.) appointed to fill the vacanc3\ 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 "provisional" appointments; the same being resorted to in the practice of the War Department, as a matter of convenience, in order that there may be a person at hand to take the place of a reg- ular nominee who ma}" fail at the last moment, and the embarrassment of a vacancy occurring at that time l)e thus as far as possible avoided. The provisional appointee, or "alternate," was not entitled to be sub- stituted for the regular appointee on his resignation, and not having been so substituted, but another person having been selected, he remained with precisely the chiim which he had originally, viz., to present himself for examination and appointment in case the regular nominee was not accepted, the onh' dift'erence being that the regular nominee had meanwhile been changed. XLII, 162, Fehruary^ 1879. 662. Sec. 1318, Rev. Sts., prescribes that appointees to the Militar}^ Acadeni}' shall be admitted only between the ages of 17 and 22 years. The academic year begins on September 1. Therefore held that an appointee who would not he seventeen until the preceding August could, without a violation of the statute cited, be permitted to take the June examination, and if found qualified, to remain at the academy at his own expense until of lawful age to be admitted. Card 3S86, Fvhrnary, 1898. 653. Where a regular appointee as cadet, having resigned, was again nominati^l to fill his own vacancy, the same not having meanwhile been filled by the appointment of another, held that the President was empowered, under Sec. 1317, Rev. Sts., to re-appoint him. XXXI, 195. Fehniary, 1871. 654. Cadets are amenable to trial by court-martial for violations of the Regulations of the Academy, as "conduct to the prejudice of good order and military discipline."^ XXXVI, 129, Decemher., 187 If.; 61, 370, Septeraher, 1893. 655. In view of the provisions of Sec. 1325, Rev. Sts., held that the ^ In this connection may be noted the opinion of the Solicitor General (15 Opins. At. Gen., 6,34) that, except for the offence of hazing, specially made punishable by tlie act of June 28, 1S74, cadets of the Naval Academy are not' mhjcct to trial 1)1/ court iitartial. That cadets of the Military Academy are a imrt of the armv, see Sec. 1094, Rey.Sta. CAPTURP^D PROPEETY. 181 President would not be empowered to reappoint a cadet, discharged as deficient in either conduct or studies, except upon the recommenda- tion of the Academic Board. XLIII, 372, July, 1880; Card 3796, Januanj, 1898. 656. The Superintendent of the Military Acadeni}' can have no power. })}' virtue of a regulation of the acadeni}-, to tr}^ and punish a cadet for a militar}" offence for which, under the articles of war, he is amenable to trial by court-mailial. A regulation assuming to confer upon him such power would be in contravention of kiw and inopera- tive. Otherwise of a regulation which merely authorized a measure of school discipline. So, where a cadet, on arraignment for a military offence, pleaded in bar that he had alread}", for the same offence, been punished by reduction from cadet officer to cadet private, under par. 107, Academ}- Regulations, held that, regarding such reduction as a form of school discipline onl}^, the plea was properly overruled by the court. 61, 373, SejJtemher, 1893. 657. A cadet applied to have his name changed on the Register of the Militar}^ Academy. Held that the Secretarj- of War would not be empowered to change the name as such, though he might make a new contract with the cadet in the new name. But advised., as the preferable mode of proceeding, that the cadet first procure the name to be changed in the mode prescribed hj the statutes of his own State, after which the register would of course be made to correspond. 25, 126, Jiine, 1888. 658. Held that naval cadets., not having been commissioned officers, could not, upon afterwards becoming lieutenants in the army, com- pute, for relative rank, their period of service as such cadets. 25, 21-1, June, 1888. CAPTURED PROPERTY. 659. It is a general principle that captured property of an enemy with whom we are at war accrues to the United States. The applica- tion however of this principle during the late civil war was affected by the operation of certain acts of Congress. Personal propert}^, indeed, of the Confederate States, or of one of them, became on capture by the Federal forces, the property jure helli 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 l)ecame pub- lic property, subject to the disposition of Congress. But real estate of individual enemies (including private corporations), while subject to be sold, &c., under the act of July 2, 1861, could not in general 182 CAPTT'RED PKOPERTY. booome vested in the United States ext-ept through the judgment of a competent court contiscating the same upon proceedings instituted under the act of July IT, 1862. As to the personal property of indi- viduals, this (though in some instances made the subject of proceedings forcontiscation) was mostly disposed of b3"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 seizure 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 Treasur}-, subject to the claims therefor of parties who should establish their ownership of the property and the fact that they had not "given aid or comfort to the rebellion."^ XV^III, 511, Feiruanj, 1866; XIX, 162, Xovem- he,\ 1865; XXIII, 90, July, 1866; XXVI, 160, Wovemher. 1867; XXYIII, 610, May, 1869; XXIX, 6, 364, June and Octohe,\ 1869; XLII, 540, March, 1880; XLIII, 164, January, 1880. 660. Held that the propert}^ of enemies, Q,w^tViVG.di jwrehelll in a civil war, did not belong to the class of property indicated in Art, V of the Amendments to the Constitution, the taking of which "for public use without just compensation" is prohibited. XXX, 231, Ajm'l, 1870. 661. The owner of property captured ju7'e helU is not entitled to recover its value under the provisions of Sec. 3483, Rev. Sts., as being property impressed in ihoi militar}^ service.* XXXVIII, 476, Fid>ruary, 1877. 662. A loyal owner of property captured by the enemy during the civil war, and afterwards i^ecapiured by the Federal forces, may have the same turned over to him by executive authority", where clearly identilied as belonging to him, and should in general be allowed to receive it free from any charge in the nature of salvage.^ I, 424, 428, 456, Novemler and Decemher, 1862; XI, 266, December, 186^; XX, 485, Marcli, 1866. 663. Held that a civilian into whose hands had come, at the end of the civil war, certain captured pei'sonal property of the enemy, was not entitled to convert it to his own use, or to demand compensation ' See Tinder this paragraph, United States v. Padelford, 9 Wallace, 531, 538; United States r. Klein, 13 w/., 128, 136; l.'nited States v. Hiu'kal)ee, 16 /V?., 414; Havcraft v. United States, 22 id., 81; Lamar v. Browne, 2 Otto, 187; Williams v. Bruffy, i^xd., 176, 188; Young v. United States, 7 ul., 39, 60; Ford v. Surget, id., 594; Dow V. Johnson, 10 id., 158; Porte v. United States, Deverenx (Ct. Cls.), 109; Winchester r. United States, 14 Ct. Cls., 13; United States v. A Tract of Land, 1 Woods, 475; Atkinson v. Central (ia. Mfg. Co., 58 Ga., 227. ''As to the distinction between capture and impressment, see 11 Opins. At. (tch., 378. 'See Wilson r. United States, 4, Ct. Cls. 559. CERTIFICATE OF MERIT. 183 as a condition of it.s surrender to the U. 8. authorities. XXI, 479, -J Idle. 1S66. 664. Sec. 218, Rev. Sts., in requiring the Secretary of War to collect, &c.. ""all .such flags, standards and colors as are taken by the army from the enemies of the United States,'' is believed to ha\e reference to the flags of the enemy. So advised., that a flag of a Massachusetts regiment, captured by the enemy, and retaken at the end of the war at Richmond, was not to be considered as one of the class placed by the statute under the charge of the Secretary of War, and might therefore properly be returned to the State or the regiment, if origi- nally belonging to or furnished by the same. Otherwise, if furnished by the United States: in such case the flag is property of the United States disposable only by Congress. 58, 119, Frlrruary^ 189S. 665. Sec. 5586, Rev. Sts., authorizes the delivery to the Smithsonian Institution of certain kinds of property, to be delivered to such per- sons as may be authorized by the Board of Regents to receive the same. Upon a request from the secretary' of the institution that a small Spanish cannon captured in the trenches before Santiago, Cuba, hy U. S. volunteers and brought l)y them to Washington, D. C, be assigned to the U. S. Museum at the institution, held^ that the provi- sions of Sec. 5586 did not apply to the property named; that the same being public military stores captured from the enemy was property of the United States, and that the power to dispose of all property of the United States was exclusively vested by the Constitution in Congress. Card 5033, Septeniber, 1898. " 666. All property captured from the enemy becomes the property of the United States subject to disposition by Congress. Where it inures to the benefit of individuals it is in consequence of a grant by Congress. But there is no act of Congress which extends to members of the army, regular or volunteer, the right to share in prize money resulting from captures by the nav}" of public or private vessels of the enemy, though the army may have aided in the operations which led to the capture. Card 5250, JVovember, 1898. CERTIFICATE OF MERIT. 667. Held, under Sec. 1216, 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 empowered to grant such a certificate to a discharged soldier and civilian, on account of services rendered while he was a soldier.^ XLI, 168, April., 1878. 'See, to a similar effect, the opinion of tlie Attorney General in 16 Opins., 9; also the subsequent G. 0. 28, Hdqrs. of Army, 1878. 18-4 CERTIFICATE OP^ MERIT. 668. Held, under Sec. 1216, Rev. Sts., as amended by the act of Feb. 9, 1891, c. 122, as follows: 1. A certilicate of merit may now be granted to "any enlisted man of the army,"" noncommissioned oiEcer as well as private.' 2. It maj^ be granted for distinguished conduct prior to the date of the act of February 9, 1891, as well as since.- 3. The grantee nuist belong to a regiment. 4. While the recommen- dation of the regimental commander is necessary, this recommenda- tion may be based upon any fact or facts deemed by him to justify it, such as the recommendation of the company commander, or any other officer (whether of the regiment or not) cognizant of the circum- stances of the case, or upon any other authentic information brought to his (the regimental conunander's) knowledge. 5. That the declara- tion of A. R. 177 (197 of 1901), that the recommendation '' must originate with an eye witness," is an interpolation not authorized nor called for b}^ the original statute (Sec. 1216, Rev. Sts.), or by the recent amend- ment of 1891, and an instance of quasi legislation unwarranted in an army regulation. 47, 152, May^ 1891. 669. Sec. 1216, Rev. Sts., as amended by the act of March 29, 1892 (27 Stats., 12). provides "that when any enlisted man of the army shall have distinguished himself in the service the President may, at the recommendation of the commanding officer of the regiment or the chief of the corps to which such enlisted man belongs, grant him a certificate of merit." IfeJd^ that a retired enlisted man is an "enlisted man of the arm}" " within the meaning of this statute and therefore eligible for a certificate of merit. The recommendation required should come from the commanding officer of the regiment or the chief of the corps to which such enlisted man belonged. Card 8445, June., 1900. 670. The law provides that a certificate of merit may be given to an}' enlisted man who " shall distinguish himself in the service." This is not limited to distinguished service in battle. Ildd., therefore, where an enlisted man distinguished himself by the part he took in subduing a fire whicii threatened to destroy public property, that he could legally l)e given a certificate of merit for such service. Card 4108, Maij, 1898. 671. The pa}^ of general service clerks and messengers is fixed h\ the act of July 29, 1886. While this statute restricted them to cer- > In Bell r. U. S., 28 Ct. Cls., 462, it wa.^ held that a .soldier, to whom, when a mem- ber of an infantry regiment, had been granted a certificate of merit, was entitled to continue to receive the additional pay after re-enlisting in the "general messenger .service." -See McNamara v. U. S., 28 Ct. Cls., 416, where it is held that the act of Feb. 9, 1891, is retroactive, and entitles the beneficiary to the additional pav from the date of the service for which the certificate was awarded. CESSION OF JURISDICTION. 185 tain pay as such clerks and messengers, it left unaffected theii- rights as enlisted men under Sec. 1285, Rev. Sts., as amended by the act of February 9, 1891, by which all enlisted men who haye received certi- ficates of merit are entitled to "additional pay" at the rate of two dol- lars per month. This "additional pay" is a mere gratuity and not pa}', &c., in the sense of the above act of 1886, such pay, &c., being compensation for services rendered. Held, therefore, that a general service clerk or messenger, being an enlisted man, is entitled, when holding a certificate of merit, to the monthly merit paj^, calculated from the date of the service for which he received his certificate. 59, 347, 2faij, 1893. CESSION OF JURISDICTION. 672. Jurisdiction over territory in a State may be acquired b}^ the United States, under the ITth clause of Sec. 8 of Article 1 of the Constitution, by the purchase of such territory, with the consent of the State, "for the erection of forts, magazines, arsenals, dockyards, and other needful buildings." The Constitution gives Congress the power of exercising exclusive legislation over such place, and this is held to mean exclusive jurisdiction. The State's consent to the pur- chase for any one of these constitutional purposes invests the United States with exclusive jurisdiction, and the State can not, even by the express language of its legislation, reserve to itself any part of this jurisdiction. (The reservation of the right of serving process for causes of action arising outside such territor}" is not held to be an actual reservation of a part of the exclusive jurisdiction intended to be vested in the United States.) But it would seem that this is only true when the purchase is for one of the constitutional purposes. By correct construction, " other needful buildings" would mean buildings of the same character as those specified — buildings intended for mili- tary or defensive purposes. A more comprehensive meaning has, indeed, been sometimes given to the expression, but no justification for such construction is found. In Pinckney's draft of a constitution there was this clause: " To provide such dockj^ards and arsenals, and erect such fortifications, as way he necessary foi' the United States, and to exercise exclusive jurisdiction therein." (This draft was sub- mitted May 29, 1787.) There was no corresponding provision in the Constitution reported by the committee of detail (August 6), but the committee of eleven, b}^ report of September 5, recommended the adoption of the clause as it now reads, except that it did not have the words "1)y the consent of the legislature of the State." In the debate on the proposition, "Mr. 186 CESSION OF JURISDICTION. Gerry contended that this power might be made u.se of to enslave any- particular State by buying up its territory, and that the xtmngJioIds propoifed would be a means of awing the State into an undue obedi- ence to the general government. Mr. King himself thought the provision unnecessary, the power being alread}^ involved; but would move to insert, after the word 'purchased,' the words, 'by the consent of the legislature of the State.' This would certainly make the power safe." (5 Elliot's Debates, 511.) And in the Federalist (No. 48) it is remarked: "Nor would it be proper for the places on which the .stcnritij of the entire Union may depend to be in an}' degree dependent on a narticular member of it." So Story remarks (Sec. 1221): "The other part of the poAver, giving exclusive legislation over places ceded for the erection of forts, magazines, &c., seems still more necessary for the public convenience and safety. The public money expended on such places, and the public property deposited in them, and the nature of the military duties which may be required there, all demand that they should be exempted from State authorit3% In truth, it would be wholly improper that places on which the secur- it}' of the entire Union ma}" depend should be subjected to the control of any member of it. The power, indeed, is wholly unexceptionable, since it can only l)e exercised at the will of the State; and therefore it is placed beyond all reasonable scruple. Yet, it did not escape without the scrutinizing jealousy of the opponents of the Constitution, and was denounced as dangerous to State sovereignty." And, as observed by Judge Seaman {In re Kelly, 71 Fed. Rep., 545, 549): "The rule thus stated, whereby legislative consent operates as a complete cession, is applicable only to objects which are specified in the al)ovc provision, and can not be held to so operate, ipso facto^ for objects not expressly included therein. Whether it rests in the dis- cretion of Congi-ess to extend the provision to objects not specitically enumerated, although for national purposes, upon declaration as * need- ful buildings,' and therel)y secure exclusive jurisdiction, is an inquiry not presented by this legislation (see 114 U. S., 541); and I think it can not be assumed by way of argument that such power is l)eyond question." 1 n New Orleans t'. U. S., 10 Pet., 662, 737, the opinion of the Supreme Court is expressed by Mr. Justice McLean, without dissent, as follows : "Special provision is made in the Constitution for the cession of jurisdiction from the States over places where the Federal govern- ment shall establish forts or other militarv works. And it is onlv in CESSION OF JURISDICTION. 187 these places, or in the Territories of the United States, where it can exercise a general jurisdiction." And, in U. S. v. Bevans, 3 Wheat. , 336, 390, the claim was urged that the words "other place" would include a ship of war of the United States lying at anchor in Boston Harbor, and bring it within the statute defining murder committed "within an}' fort, arsenal, dockyard, maga- zine, or in an}^ other place or district of country under the sole juris- diction of the United States ;" but it was stated b}' the court, through Chief Justice Marshall, that "the construction seems irresistible that by the words 'other place' was intended another place of a similar character with those previously enumerated ;*" that "the context shows the mind of the legislature to have been fixed on territorial objects of a similar character." (See, also, The Federalist. No. -13, by Madison.) Sec. 355, Rev. Sts., prescribes that no public money shall be expended upon any site or land purchased by the United States for the purposes of erecting thereon any armory, arsenal, fort, fortification, nav^'-yard, custom-house, light-house, or other building, of any kind whatever, until the * * * consent of the legislature of the State in which the land or site may l)e to such purchase has Ijeen given. This section is in part based on the clause of the Constitution referred to, and in part not. The consent of the State to a purchase, given in order to satisfy the requirement of this section, would invest the United States with exclusive jurisdiction, if the purchase be for one of the Constitu- tional purposes; but the section provides for other purposes also, and as to these it would seem that a simple consent to the purchase (assum- ing that such consent, being for a purpose not falling under the clause of the Constitution, amounts to a cession of jurisdiction) would only cany with it so much jurisdiction as would lie necessary for the pur- pose of the purchase. Probably this would be held to be concurrent jurisdiction. Taking into consideration the fact that States cannot, under any circumstances, interfere with the instrumentalities of the Government of the United States, it ma}% indeed, be questioned whether, even under this view, unnecessary precautions have not been taken in regard to the acquisition of jurisdiction; and, certaiidy, it cannot be presumed that a State intends to part with more of its sovereignty than is necessar}-. A consent to the purchase, under Sec. 355, Rev. Sts., if the purchase be for other than one of the purposes described in the clause of the Constitution, may, therefore. l)e accom- panied with any limitations not interfering with an instrumentality of the Government of the United States. The most common way of acquiring jurisdiction, however, is b}^ the State's expressly ceding it to the United States. In such case the State may make similar limitations, and this even if the place be used b}^ the 188 CESSION OF JURISDICTION. United States foi- one of the i)iirposes incntionod in the clause of the Constitution. To ])ring- the ease under the clause there nuist be a purchase with consent.' Card 1953, Decemhev^ 1895. 673. The mere fact of its being- the owner of land situated within a State does not entitle ihe United States to exercise exclusive jurisdic- tion over the same or of offences committed thereon,^ nor does the fact that the land has been duly reset'md 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 jurisdiction, 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 jurisdic- tion on the part of the State, or by the State's giving its consent to the "purchase" by the United States. See the terms of the provision of clause IT, sec. 8, Art. I, of the Constitution.* A mere consent b}^ a State, through its legislature, to the "purchase" by the United States of land within its limits for any purpose covered by the clause of the Consti- tution cited is as operative for the purpose of vesting the exclusive jurisdiction as is an express cession of the same.^ XLII, 514, 524, Marcli, 1880; XLIII, 234, February, 1880. 674. 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 exer- cised "'concurrently loith'''' the State, held that this qualification was subject to the objection that it amounted to more than the mere reser- vation (not unfrequent) of the right to serve upon the land legal proc- ess for acts done and crimes committed outside of the same, and should 1 See Fort Leavenworth R. R. Co. v. Lowe, 114 U. S., 526, 539; Chicago and Pacific Rv. Co. V. McGUnn, 114 U. S., 542; Benson v. U. S., 146 U. S., 325, 331; In re Kelly, 71' Fed. Rep., 545; In re Ladd, 74 Fed. Rep., 31. '■'United States r. Stahl, 1 Wool worth, 192, and McCahon, 206; Ex parte Sloan, 4 Sawyer, 330, 331, 332; Clay /'. State, 4 Kans., 49. Much less does the mere fact of its l)eing the occupant of the land give it this authority — as where it occupies land as a camp. United Sttt h r. Tierney, 1 Bond, 571. ■' See the first three caHes cited in last note. The fact that the person against whom the offence has been committed — as the person killed in a ca^ie of alleged murder — is an employee of the United States, adds nothing to its jurisdictional authority. Ex parte Sloan, aupra. ^That the term "exclusive legislation," employed in the Constitution, is equiva- lent to exclusive jurisdiction, or rather that exclusive jurisdiction is a necessary incident of exclusive legislation, see (i Opins. At. Gen., 577, 57S; United States v. Cor- nell, 2 ^lason, 60; Er pnrle Sloan, 4 Sawyer, 3.30. •■^See Uniteril 10, 1878 (15 Opins., 480). CESSIOlSr OF JUEISDICTION, 189 therefore be regai'ded as inconsistent with a grant of exclusive juris- diction 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 doubt- ful whether, in view of the provisions of Sec. 355, Rev. Sts., the Sec- retary of War would be authorized to expend an appropriation which had been made by Congress for the erection of public buildings on the land. XLIII, 197, JFehruary, 1880. 675. But where a State statute, in ceding jurisdiction to the United States over certain lands purchased within 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 within and upon said sites," &c., advised that such reservation might properly be regarded as having the same eflect as that indicated by Att}'. Gen. Cushing in 8 Opins., 387, viz., as reserving merely the right to serve process ivithin the lands for acts done and crimes com- mitted ivithoid the same (so as to prevent them from becoming an asylum for fugitives from justice), and that the cession might therefore properly be accepted as sufficiently vesting in the United States the exclusive jurisdiction over the premises contemplated by the Constitu- tion. XLII, 567, Jidy, 1866; XLIII. 234. Fehruarij, ^880: 27, 132, October, 1888. 676. The ejffect of the possession b}' the United States of exclusive jurisdiction over land in a State, occupied for public purposes, is prac- ticalh' to withdraw the persons stationed or residing within the same from the civil and criminal jurisdiction of the courts of the State, and from liability to the process of the same (except so far as mav legall}' have been reserved b}" the State — see § 675 ante), as well as from taxation and other burdens of citizens of the State. On the other hand, such persons are not entitled to enjoy an}' of the privileges of such citizens, as the privilege of voting, of the use of the public schools," ^ See United States v. Cornell, 2 Mason, 60; United States c. Davis, 5 id., 356; 6 Opins. At. C4en., 577,578; 7 id., 628,634; 8 id., 30, 102, 411,417; 20 it/., 242, 298, 611. ^See, on this general subject, the following as the principal authorities: Fort Leav- enworth R. R. Co. t'. Lowe, 114 U.S., 525; United States r. Travers, 2 Wheeler C. C, 490; Do. r. Tiernev, 1 Bond, 571; Do. r. Stahl, Woolworth, 192, and McCahon, 206; Conunonwealth r. Clary, 8 Mass., 72; Mitchell v. Tibbetts, 17 Pick., 298; Opinion of Justices, 1 Met., 580; Stater. Dimick, 12 N. Hamp., 194; People v. Godfrey, 17 Johns., 225; Do. '•. Lane, 1 Edmonds, 116; Commonwealth v. Young, Bright, 302; Lt re O'Con- nor, 37 Wise, 379; Clav v. State, 4 Kans., 49; Painter v. Ives, 4 Neb., 122; 6 Opins. At. Gen., 577; 7 id., 628; 8 id., 30, 102, 387, 418. In this connection, note an opinion of the Attorney General of February 7, 1880 ( 16 Opins. , 468 ) , that whether a superintendent of a national cemetery can legally 1 )e required to work upon the public roads of the State (in compliance with a law of the State requiring all male citizens between certain ages to perform such work), mu.st depend \\\Mm 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 superintendent resides has been surrendered to the United States, he is exempt from such obligation. 190 CESSION OF JURISDICTION. &c. XXI, 5(37, Jalij, 1866; XXXIII, 8, March, 1872; XXXIX, 151, Aiiyiisf, 1877: Card 8521, Septemher, 1897. 677. The law is settled that where consent to purchase has been given, or exclusive jurisdiction has been ceded, by a State to the United States, as to land of the United States situate within the State, the land is no longer a part of the State in a political or legal sense, and no taxes — poll tax, or State, county, town, or school tax, or other — can legally be imposed upon those lawfulh' commorant thereon. XLIX, 187, July, 1885. 678. A cessio-ii of jiirisdlction b}' a State to the United States may be (|ualitied or conditional, and cedes onlv so much as is specifically expressed.^ But a consent to purchase, as the term is intended in the constitutional provision (Art. I, Sec. 8, cl. 17), conveys the whole or an exclusive jurisdiction. So, where a State legislature, in giving the consent to a purchase for a constitutional purpose, couples with it a condition or qualification inconsistent with the possession of an exclu- sive jurisdiction by the United States — as a condition that the State shall retain the same civil and criminal jurisdiction over persons and their property on the land that it has over other persons and property in the State or shall retain the right to tax persons living on the land and their property, — held that the jurisdiction is not such as is designed by the Constitution, and cannot legally be accepted by the United States." 59, 159, 408, April and Mmj, 1893; 63, 98, Decemher, 1893; 64. ?,8(». Aj>r!L 189 J^. 679. It has repeatedly been held, and is now regarded as well settled law, that exclusive legislation and exclusive jurisdiction mean one and the same thing, and that where a State has ceded to the United States the right of exclusive legislation over a tract of land within the terri- torial limits of the State, a reservation to the State of concurrent juris- diction is valid only so far as it is not repugnant to the exclusive jurisdiction of the United States. Thus where the act of the legisla- ture provided that "the United States may enter upon and occup}^ any land which may have been or maybe purchased, or condemned, or otherwise acquired, and shall have the right of exclusive legislation and concurrent jurisdiction together with the State * * * over such land and the structures thereon, and shall hold the same exempt from all State, county and municipal taxation,"" it was held that the only legal efiect of the "concurrent jurisdiction'' therein reserved to the State was to admit of tlie service of civil and criminal process by the State upon the lands of the United States, and thus to prevent such 'See Fort Leavenworth R. R. Co. v. Lowe, 114 U. S., 525. ^ See 8 Opins. At. Gen.. 418. CESSION OF JURISDICTION. 191 places from becoming a sanctuar}' for fugitives from justice. L, 255, May. ISSd: Card 15S1, J,thj, 1895. 680. The term '■"purchase," as emploj^ed in statutes, has been con- strued as embracing all the forms of acquiring title — including condem- nation — except that by descent.^ But in Kohl v. U. S.,^ the Supreme Court say: " It is true the words 'to purchase' might be construed as including the power to acquire by condemnation, for, technically, pur- chase includes all modes of acquisition other than that of descent. But, generally in statutes, as in common use, the word is employed in a sense not technical, only as meaning acquisition h\ contract between the parties, without governmental interference." In a case, therefore, of certain lands in a State acquired l)y the United States by condemnation in the exercise of the right of eminent domain, advised that a special act of cession of jurisdiction be obtained from the State. 50, 474, I)ecernhei\ 1891. 681. The term "or other public building of any kind whatever," used in Sec. 355, Rev. Sts., held to include the '"' ohservatioii toivers^''' for the erection of which in the Chickamauga and Chattanooga National Park appropriations were made in the acts of August 5, 1892, and March 3, 1893. Cession of jurisdiction by the State is therefore requisite before the appropriation can legall}' be expended. 60, 30, Jime., 1893; 63, 60, Decemher, 1893. 682. The term "or other public building," &c., as occurring in Sec. 355, Rev. Sts., /i eld to include the viaduct at Rock Island for the con- struction of which appropriation was made b}^ Congress by acts of 1889 and 1890.'^ The consent of the State of Illinois to the purchase of the site by the United States or cession of jurisdiction, is therefore requisite to the legal expenditure of the funds appropriated. 43, 151, Mvember, 1890. 683. Sec. 355, Rev. Sts., in prohibiting the expenditure of public money, for the purpose therein mentioned, before the consent of the State to the purchase of the land is obtained, does not preclude the mere purchase itself. The land therefore may legally be paid for, and the title thereto acquired, in the absence of such consent.* 63, 1, Decei/ibe/; 1893. Neither the constitutional provision (Art. I, Sec. 8, cl. 17) nor the statute (Sec. 355, R. S.) precludes the United States from acquiring the title to the land. 64, 330, April, 1894.- 1 7 Opins. At. Gen., 114, 121; Ex parte Hebard, 4 Dillon, 380, 384; Burt ;■. Mchts. Ins. Co.,10BMass., 356, 364. 2 91 U. S., 367, 374. •Tn 7 Opiiis. At. Gen., 114, Mr. Gushing treated the land accjuired by the United States for the use of the Washinsrton Aqueduct as coming within the provisions of Sec. 355, Rev. Sts. *See 10 Opins. At. (ien., 34, 3;»; 15 Id, 212, 213. 192 CESSION OF JURISDICTION. 684. In view of the general rule of interpretation, that a statute is not to be construed as retrospective unless its language clearly shows that it was so intended, held that a general statute of 1891, giving the consent of the State of Louisiana to the purchase by the United States of land within the State for public purposes, was in effect prospective and did not apply to the purchase of the land at Jackson Barracks, made before the date of such act/ Moreover the Constitution of Louisiana of 1868 forbids the enactment of retrospective laws. XLV, 436, Septemher, 1882; L, 95, March, 1886. 685. The deficienc}' appropriation act of March 3, 1899, authorized the Secretary of War '' in cooperation with the Floj-d Memorial Asso- ciation," to cause to be erected over the remains of Sergt. Charles Floyd, a member of the Lewis and Clarke Expedition, a suitable monu- ment near Sioux City, Iowa, and appropriated five thousand dollars for the purpose. Held that the act did not authorize or require the acijuisition by the United States of the land upon which the monument was built; that it may Ije assumed that Congress intended that the monument should be cared for by the association and that the United States should be at no other expense than that of the appropriation for assisting in its construction. There is no statute which would prohibit the expenditure of this particular appropriation, if title to the site be not acquired by the United States; and in practice appro- priations have fretiuently been expended in works of improvement where such title to the sites has not been obtained, especially in improvements of navigable waters and highways. The prohibitions of Sec. 355, Kev. Sts., are not viewed as applicable to the case under consideration. Card 7482, Mm-ch^ 1900. 686. The title of the United States to the lands at Fort Monroe, as ceded ])y the State of Virginia, being limited to the line of ordinary low-water mark, Jhld in view of the provisions of Sees. 355 and 4001, Kev. Sts., that a cession of jurisdiction over the necessar}^ soil luider the water beyond low-water mark should be obtained from the State before the appropriation, made by the act of August 1(>, 1SS8, for the iron pier to be constructed at Fort Monroe, be expended. LIII, 328, April, 1887. 687. Held that the act of Congress granting to the West Shore R. R. Co, a right of way across a part of the military reservation at West Point, New York, did not operate to oust, as to such way, the exclusive jurisdiction over the reservation previously ceded by the State to the United States. It simply imposed upon the military authorities the duty of not interfiM-ing with the legitimate use of its right by the railroad company. 41, 457, July, 1890. ' Compare 1.5 Opins. At. Gen., 480. CESSION" OF JUKISDICTION. 193 688. Residents on a military reservation over which exclusive juris- diction has been ceded bv the State to the United States are not enti- tled to the use of the pul)lic schools nor can they legally be taxed for their support. But if allowed to avail themselves of such schools, and they send their children to them, the}" cannot avoid paying such charge as the local authorities may impose in regulating admissions. Thus held that officers stationed at Fort Trumbull, Conn., were not exempt from paying the fee exacted hy the Cit}" of New London in cases where parents elect to send their children to a school in a district different from that in which the}^ reside. 62, 348, Novemhe')\ 1893. 689. In view of the surrender by the State of New York to the United States of exclusive jurisdiction over David's Island, a coroner of Westchester County, N. Y., would not be authorized to hold an inquest on the bodies of persons dying on the island; but advised that such coroner be permitted upon the Island to hold inquests on the bodies of unknown persons found washed upon its shores or floating in the neighboring waters. 36, 145, October, 1889, 690. The laws of a State regulating the use of the water of streams thereof for irrigation purposes are not operative on a militar}^ reserva- tion over which the United States has exclusive jurisdiction. Thus where the creek had its source on such a reservation, held, that parties residing on said creek outside the reservation had no legal rights under the laws of the State in the waters of the creek until the same left the reservation, but recommended that the proper commanding officer be directed to so regulate the use of the water on the reservation that there would be no unnecessar}^ waste. Card 21.53, Jtdij and ^eptemher^ 1896. 691. A State statute requiring a report of births and deaths to be made in response to a call from the State Board of Health does not extend to a military reservation in such State over which the United States has exclusive jurisdiction, but reiiiarl'ed\h.?it the information requested might be furnished as a matter of comity. Cards 1826, Novemher., 1895; 3270, June, 1897. 692. Held that there was no occasion for a statutory provision ceding back, or requiring the ceding back of jurisdiction, by the United States to the State, when a military reservation was abandoned and turned over to the Interior Department under the act of Jul}' 5, 1881. Such provision has sometimes appeared, as in the act of Congress of March 3, 1819 ("authorizing the sale of certain military sites''), as also in some of the State acts ceding jurisdiction, in which the grant is expressly limited to the period during which the premises may be held for public uses by the United States. But such provisions are deemed unnecessary, the jurisdiction ceasing* of itself with the use and 10906—01 13 194 CHARGE. occupation of the land for the purposes for which it was granted. It is believed to be clearly inferable from the clause on the subject in the Constitution (Art. I, Sec. 8 cl. IT) that the State relinquishes its juris- diction onl}^ for such term as the particular status subsists in con- templation of which it was ceded. ^ 43, 475, Noventl>ei\ 1890. 693. Sec. 5391, Rev. Sts., provides that an}- offence committed in an>' place ceded to and under the jurisdiction of the United States, shall, where not specially made punishable l)y any law of the United States, be visited with the same punishment as is provided for such offence by the laws "now in force" of the State within which such place is situated. This provision, orignally enacted March 8, 1825, was substantially re-enacted April 5, 1866. In 1832 it was ruled by the Supreme Court" that the provision of 1825 was "limited to the laws of the several States in force at the time of its enactment." And in recent cases, arising in Montana^ and Colorado,* it has been held that the provision in Sec. 5391 did not apply to the offence because these States, with their laws, did not come into existence till subse- quently to the date of the enactment of 1866. Thus the section (5391) is operative neither as to offences committed in States which entered the Union since 1866, nor as to those committed in States where, April 5, 1866, there existed no criminal statute providing for the punishment of the particular offence. A modification of the existing law is called for. This cannot be done by legislation adopting beforehand all the criminal laws of a State which shall be in force at the time of the criminal act, because that w^ould be a delegation by Congress of its legislative power to the States. The re-enactment, from time to time, therefore, of Sec. 5391, or of a provision to a similar effect, racoiiimended.'' 57, 488, Fehruary^ 1S93; 61, 435, Sej)- temler, 1893; Card 3546, Sejytemher, 1897. CHARGE. 694. In our practice, unlike that of the English, a military charge properly consists of two parts — the technical "charge " and the " speci- ffcation." The former designates ])y its name, particular or general, the alleged offence; the latter si^ts forth the facts supposed to consti- tute such offence." VII, 600, Apiul., 186 J^. There maj^ be one or more ^See Fort Leavenworth R. R. Go. r. Lowe, 114 U. S., 525. 'U.S.w. raul,(ireter!-, 14L "U. S. v. Bariiabv, 51 Fed. Rep., 20. *U. S. r. Curran,\iteil in Ex. Doc. No. 14, li. R., 53d Cons^;., 1st Sess. 5 See act of July 7, l.SV)8, 80 Stat., 717. ® An accuHation afiainut an officer or soldier, not thns Hei)arated in form, wonld be irregular and exceptional in our pi-actice, and, till amended, should not be accepted a.s a proper basin for jjroceediuijs under the code. CHARGE. 195 specifications to a particular charge. It is the office of the specifica- tions to specify the particukir acts done or omitted by the accused with time and place, which constitute the ofi^ences charged; each specification to set forth but one instance of ofl'ence. Y, 613, January^ 186J^; 65, 373, July, ISOJ^. 695. The same particularity is not called for in militar}' charges which is required in indictments.^ The essentials of a charge are: 1. That it shall bo laid under the proper article of war or other statute. 2. That it shall set forth (in the specification) facts sufficient sub- stantially to constitute the particular ofi^ence. These essentials being observed, the simpler, and less encumbered with verbiage and technical terms 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, pro- vided that the charge and specification, taken together, amount to a statement of a militaiy ofi'ence either under a specific article or under the general article. No. 62. XA^I, 551, 8eptemhei\ 1865; XXVII, 524, Fdjruary, 1860. 696. To charge a militaiy ofi'ence as a violation of a certain article of war, naming it l)y its number, is regular and proper. When a statute or an article of war enacts that whosoever shall do a particular act shall receive a specified punishment, it thereby prohibits, by the strongest possible implication, the ofi'ence named. The prohibition is part and parcel of the statute or article — is, indeed, its essence — and the act committed is necessarily in violation of it, and is properly averred so to be. Denouncing a penalty or punishment for an ofi'ence is the legal language or mode for prohibiting it, and this language is so well under- stood as to have led to great uniformity in the use of the form in ques- tion. V, 77, Odoher, 1863. See VII, 457, March, 1861^. 697. Where an ofi'ence is clearly defined in a specific article, it is irregular and improper to charge it under another specific article. ^ In regard to the proper form for a military charge, Atty. Gen. Gushing (7 Opins., 601, 603) says: "There is no one [form] of exclusive rigor and necessity in ■which to state military accusations." He adds further: "Trials by court-martial are governed by the nature of the service, which demands intelligible jirecision 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" l)e tenable in court-martial proceedings, and will be adeciuato gnumd-work of conviction and sentence." So it is observed by Atty. Gen. Wirt ( I 0]iins., 270, 286) that "all tluit is necessary" in a military charge is that it be "sutiiciently 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, 69. It is ably remarked by Gould (Pleading, p. 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 necessarily sup]>osed or implied, Ave shall tind in it the elements of a good syllogism." But it can hardly be expected that military charges in general Mill stand tliis Test. 196 CHARGE. So, where the article in which the offence is defined makes it punishable with a specitic punishment to the exclusion of an}' other, it is error to charge it undrr an articl(>, such as the 62d, which leaves the punishment to the discretion of the court. II, 51, March, 1863; XI, 312, Decem- hct\ 18G4; XIV, 599, June, 1865; XX, 533, Apr!!, 1866; XXVIII, 5T5, Maij, 1869. On the other hand, it is equally erroneous to charge under a si^ecilic article, making- mandatory a particular punishment, an offence properly charged only mider Art, (32. I, 463, Decemher, 1862; XXVII, 413, ]>ecin,J>er, 1868. XXVIII, 575, siq^ra. 698. For some time after the enactment in 187-i of the present new Articles of War, charges were not unfrequently laid under articles by their old numbers — as "violation of the 9th" (old numl>er), instead of the 21st (new number) "Article," or "sleeping on post, in violation of the -lOth" (old number), instead of the 39th (new number) "Article." ILJd, in such cases, that the error was one w^hich could onl}' be taken advantage of by an objection in the nature of a plea in abatement— whereupon indeed an amendment coukl at once be made, — and that, in the absence of such objection, the mistake was to be treated as imma- terial after finding and sentence. XXXVII, 313, Fehruary, 1876; XXXVIII, 495, 552, April, 1877. 699. "Where a specific offence is charged (/. e., an offence made pun- ishable by an article other than the general — 62d — article), and the specification does not state facts constituting such specific offence, the pleading Avill be insufficient as a pleading of that offence. Legal effect ma}', however, be 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. Q'2. And in all cases — whatever be the form of the charge oi- specification — if the two are not inconsistent, and, taken together, make out an averment of a neglect or disorder punish- able under this general article, the pleading will be sufficient in law and Avill constitute a legal basis for a conviction and sentence. XI, 491, 2rarcK 186-1; XV, GSO, Odoher, 1865; XVI, 551, Septemher, 1865. 700. 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. XXVII, 446, January, 1869. But where the act committed involves several distinct offences, the party may properly be arraigned upon the same number of separate charges. XXX, 489, July, 1870. 701. It is the established practice before courts-martial and military commissions to examine into as many accusations against the individual on trial, Avithout regard to their connection with each other or their identity in respect to date or place, as it may be deemed propm- and advisable by the prosecuting authority to adduce. The charges against CHARGE. 197 such a prisoner maj' be in number unlimited and as various in char- acter as the jurisdiction of the tribunal will permit. XIV, 40, Janu- ary^ I860. Undue nuiltiplication, however, of charges, or forms of charg-e, is to be avoided: thus charges should not in general be added for minor offences which were simply acts included in and going to make up graver offences duly charged. XV, 441, July^ I860. It may, indeed, sometimes be expedient where the offences are slight in them- selves, and it is deemed desirable to exhibit a continued course of conduct, to wait, before preferring charges, till a series of similar acts have been committed, provided the period be not unreasonably pro- longed; but in general charges should be preferred and brought to trial immediately or presently upon the commission of the offences. An^'thing like an accumulation., or saving up, of charges, through a hostile animus on the part of the accuser, is discountenanced by the sentiment of the service.' XII, 34S, February., I860. 702. The prosecution is at liberty to charge an act under two or moi'e forms, where it is doubtful under which it will more properly be brought by the testimony.' In the military practice the accused is not entitled to call upon the prosecution to '"elect" under which charge it will proceed in such, or indeed in any, case. XXXIII, 306, August.^ 1872. 703. Where there are two sets of charges against an accused, they should if practicable be consolidated, and one trial be had upon the whole, instead of two trials, one upon each set. XXX, ^IQ^). April., 1870. But after the accused has been arraigned upon certain charges, 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." XXIV, 513, 577, 2fay, 1867. 704. Such loose and indefinite forms of charge as "fraud,'" '" worth- lessness," " inefficienc}'," "habitual drunkenness," and the like. will, be avoided b}' good pleaders. XIX, 280, December., I860; XX\'III, 253, DeccDiher^ 1868. Such charges indeed, in connection with speci- fications setting forth actual military neglects or disorders (not properly chargeable under specific articles) ma}' be sustained as equivalent to charges of "conduct to the prejudice of good order and military dis- ^See G. C. M. O. 71, Hdqrs. of the Army, 1879. ■i "For the purpose of meeting the evidence as it may transpire." State r. Bell, 27 M(l., 675. ^As to the further objection to such charges, that the court would not ])e qualified to try them, under its oath, see § 226, ante. 198 CHARGE. « ciplino.*' But a ohiirgo of '' worthlessness," with specifications setting forth repeated instances of arrests, confinements in the guard house, or trials and convictions of the accused for slight offences, held an insufficient pleading; such instances not constituting military offences, but merely the punishments or penal consequences of such offences. XXV, ^^i, June, ISGS; XX^^^1, 253, Decemher, 1868; XXXIII, 169, 208, 281, 285, 345, 416, July to Octoler, 1872. A specification aver- ring a general incapacity induced h}" habitual intoxication, does not set forth a military offence. The accused in such a case should be charged with the acts of drunkenness committed, as separate and distinct instances of offence.^ XXXIII, 458, Novemhn\ 1872; L,469, June, 1886. 705. The specification should be appropriate to the charge. A charge of '"conduct to the prejudice of good order and inilitary discipline," with a specification setting forth a violation of a specific article, is an irregular and defective pleading, and so of course is a charge of a specific offence with a specification describing not that but a differ ent specific offence, or a simple disorder or neglect of duty. XXIV, 198, January, 1867. 706. A mis-naming or mis-description of the rank of the accused in the specification should be taken advantage of ])y exception in the nature of a plea in abatement. Where not objected to, the error is immaterial after sentence, provided the accused is sufficiently identi- fied by the plea, testimony, &c. XXXVII, 482, Aj)P/l, 1876. 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 will be sufficient unmistakably to identify the party. XXIV, 299, February, 1867. 707. Where a specification to a charge preferred 1)}' a superior against an inferior oflicer, instead of referring to the former in the third person, alleged that the accused addressed abusive language to "me," and committed an assault upon "me," without naming or other- wise indicating the subject of the abuse or assault, Jold that such a form, though supported })y some of the English precedents, was not sanctioned by our practice, and that, on objection being made to the same by the accused, the court would properly either require that the specification be amended, or that, in incorporating the charge in the record, the name of the preferring officer be added. III. 429. Avgust, 1863. 708. Where a specification alleged that the accused was absent with- out leave at various times between two dates, twenty days apart, held 'See G. O. 11, War Dept., 1873. CHARGE. 199 that the same was defective and subject to exception as being douhle, each such absence being a substantive and distinct offence/ X, 471, Oetoher^ ISGJf.. But where the specification to a charge of violation of the 60th Article alleged the presentation by the accused of a fraudu- lent claim for rations furnished for recruits and also for lodgings furnished for the same recruits at the same time, Jteld that the speci- fication related to one transaction and w^as not therefore to be nec- essarily regarded as doithle or defective, in view of the liberal rules of pleading applicable to military charges. X, 392, Octoher, ISGJj.. 709. A speciti cation, in alleging the violation of an order which has been gi^'en in writing, or of any written obligation— as an oath of allegiance, parole, &c. — should preferably set forth the writing ver- hatirii^ or at least state fully its substance, and then clearly detail the act or acts which constituted its supposed violation. Ill, G-i9, Sep- tei)ibe7\ 18GJ. 710. The tnite and j)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 l)y the 103d Article, and to enable the accused to understand what particular act or omission he is called upon to defend.^ I, -163, Dcceiiihei\ 1862; V, 613, January^ I86J1.. A reasonably exact allega- tion of the time is also important in some cases — especially those of desertion and absence without leave — in order that the accused, if sub- sequently l)rought to trial for the same offence, or, what is the same thing in law, for an offence included in the original offence, may be enabled (b}- an exhibition of the record) properl}' to plead a former acquittal or conviction of that offence. VII, 34S, 513, April., ISGIf.. 711. AVhere the exact time or place of the commission of the offence is not known, it is frequently preferable to allege it as having occurred ''"on or ahoiW^ a certain date or time, or ^'' at ornear^^ a certain locality, rather than to aver it as committed on a particular day or between two specified days, or at a particular place. There is no defined construc- tion to 1)0 placed upon the words "'"on or about" as used in the allega- tion of time in a specification. The ^llirase cannot be said to cover ^In the military, as in the civil, practice donhle pleading, i. e., specifications setting forth two (or more) distinct offences — especially if chargeable under different arti- cles of war — is properly condemned, and in sundry cases the conviction and sen- tence have been disapproved on account of the duplicity in law of the pleadings. See G. C. i^I. ()., 80, War Dept., 1875; G. (). 3, 88, Dept. of the Missouri, 1863; do. 49, Dept. of the Ohio, 1864. ^As to the latitude allowable in the allegation of tiiiu> in militarv pleadings, com- pare 1 Opins. At. Gen., 295, 296. In the civil practice, "nothing is better settled than that jmiof of guilt is not con- fined 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 prosecuting the offence." ]\IcBryde v. State, 34 Ga., 203. 200 CHARGT^:. any precise number of days or latitude in time. It is ordinarily used in military pleading for the purpose of indicating- some period, as nearh' as can be ascertained and set forth, at or during which the offences charged are believed to huve been committed — in cases where the exact day cannot well be named. And the same is to be said as to the vise 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 place is known und c:iii readily be alleged. XXVI, 437, Fthruary, 1868. 712. The same exactness in the averment of time is in general scarcely required, where the offence charged is one of omissimu as where it is one of the commission of a specific act. It is sufficient in the former case to allege that the offence occurred hetween certain named dates not unreasonaljly separated. XXX, 488, July., 1870. So, an offence of commission, which probably was not completed, or may not have been completed on any particular da}', may be similarly charged. Thus held that the allegations of time and place were sufficient in a specifi- cation in which it was set forth that the offence charged (which con- sisted in an improper disposition of pul)lic property) was committed b}^ the accused "while eii route between Austin, Texas, and Waco, Texas, between the .5th and 25th days of May, 1867." XXV, 100, September^ 1867. 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, held that the specification did not give sufficient notice to the accused of the specific offence which he was required to defend, and was there- fore uncertain and insufficient.^ I, -163, Decernber^ 1862. ■ 713. AVhere time or place is omitted to be averred, or is averred without sufficient definiteness, and the defect is excepted to })y 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 objec- tion is interposed by the accused, the proceedings will be sufficient in law provided the time and place of the offence can be made out with reasonable certainty from the testimony in connection with the speci- fications.' XIV, G35, and XVI, 298, June, 1865; XX, 280, January, 1866; XXVI, 1:12, January, 1868. Where the offence is alleged to have been committed on a particular day, and the evidence shows that it was committed on quite a different day — in such case, provided time is not of the essence of the offence and the specific act charged is suffi- ^ Compare cases in G. 0. 193, Army of the Potomac, 1862; do. 98, Dept. of New Mexico, 1862. ''See, to the same effect, (i. O. Id, \V;ir iH-pt., 1853. CHARGE. 201 ciently identified hy the other testimony, the variance between the allegation and the proof will not constitute a fatal defect, and need not induce a disapproval of the sentence where there has been a convic- tion. A return, ho>7ever, of the record to the court, for correction, if practicable, would well be resorted to by the reviewing- officer before taking final action. XIII, 361, February^ 1865. 714. While it is in general irregular to plead matter of evidence, there is no objection to noting in brief in the specification the imme- diate result or eflect of the act charged, as a circumstance of descrip- tion illustrating the character and extent of the offence committed. Thus while a homicide, if amounting to murder, and capital under Sec. 5339, Rev. Sts., or by the law of the State, &c., cannot as such be made the subject of a militar}- charge in time of peace (see §§ 91 and 148, a7ite), yet a capital homicide, where it has been committed in connec- tion with or as a consequence of a specific militar}' ofi^'ence charged against the accused — as, for example, "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 avhnus of the accused or the amount of force employed. XXXIV, 478, Se]>te)i^he}\ 1873. 715. Properly to warrant i\xQ joining of several persons in the same charge and the bringing them to trial together thereon, the ofl'ence must be such as requires for its commission a combination of action and must have been committed by tlie accused in concert or in pursu- ance of a common intent. The mere fact of their committing the same offence together and at the same time, altiiough material as going to show concert, does not necessarih" establish it. Thus the fact that several soldiers have absented themselves together without 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 thej^ may merely have been availing themselves of the same convenient opportunity for leaving their station. Nor is desertion, of which the gist is a ceviaXn jjer.somd intent, ordinarily" chargeable as a joint offence.^ V, 479, Decemhet^ 1863; XII, 439, June, 1866; XXIV, 468, A2)rll, ^ See G. O. 78, War Dept., 1872, issued by the Secretary of War in accordance with opinions, previously given, of the Judge- Advocate General. But where two or more soldiers have in fact deserted together as the result of a concerted plan they may properly be jointly or severally charged with desertion, the specitication in either case describing in proper terms a "desertion in the execution of a conspiracy." See order j^rescribing maximum punishments, Court-Martial Manual (1901), p. 49. Where two or more soldiers have, as the result of a concerted plan, attempted to desert, they may properly be charged jointly or severally with conspiracy to desert, as well as an attempt to desert, to the prejudice of good order and military discii^line. In any case vmder the charge of desertion the fact of concert may be put in evi- dence as illustrating the animus of the act committed. 202 CHARGE. 1867; XXXII, 254, 333, FSruarij, 1879.; XXXIII, 211, 434, OeU^er, 1872. 716. Military charges, though commonly originating with military persons, may be initiated by civilians: indeed it is but performing a public dutv for a civilian, who becomes cognizant of a serious offence committed by an officer or soldier, to ])ring it to the attention of the proper commander. So a charge may originate with an enlisted man. But, b}' the usage of the service, all military charges should be for- maJhj preferred by, {. e., authenticated by the signature of, a commis- sioned officer. Charges proceeding from a person outside the army, and based upon testimony not in the possession or knowledge of the military authorities, should in general be required to be sustained by affidavits or other reliable evidence, as a condition to their being adopted. XVI, 423, July, I860; XLI, 672, Angmt, 1879; XLII. 202, Ifarch, 1879; 13, 231, mwemher, 1886. 717. Any officer may prefer charges: an officer is not disqualified from preferring charges by the fact that he is himself under charges or in arrest. I, 467, Deceniber, 1862; V, 348, Xovemhei^ 1863; XVI, 68, 3£ay, 1865. Charges should be preferred to the authority empow- ered to convene the court for their trial. XLII, 202, Marcli., 1879. The signing of charges, like orders, with the name of an officer, add- ing — "by the order of" — his commander, is unusual and not to be recommended. Charges, where not signed* voluntaril}^ by the officer by whom they are preferred, are, in practice, usually subscribed by the judge advocate of the court. XXXIV 598, Noveniher., 1873' XL VII, 521, Septemler, 1881^. 718. In cases where charges preferred against an officer are appar- ently susceptible of a reasonable explanation, it is not unusual, espe- cially where the charges are preferred by an inferior against a superior, to afford the officer charged an opportunity to make explanation before it be determined whether to bring him to trial. XX, 12, 0ct6bei\ I860. 719. In general, charges can regularly and properly be oi'dered 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 properly refer charges to the court for trial except under some specific or general authority received from that officer.^ The mere fact, however, that a court has proceeded to the trial of charges, referred to it without due authority by a com- mander inferior to the one who convened the court, cannot affect 'Tliis rule, though not always insisted upon in practice, has been repeatedly enjoined in exjjress terms Ijy department cdmrnanders. See, for example, G. O. 67, Dept. of Arkansas, 1864; do". 8S, Dejit. of Dakota, 1869; do. 8, Dept. of Texas, 1874. CHARGE. 203 the legality of the finding or sentence in the case. XXII, 502, Decem- hr, 1S6G; XXVI, IHT, November, 1867. 720. A withdrawal of charges constitutes no legal bar to their being subsequently revived and re-preferred. Charges, however, once for- mally withdrawn, will not in general properly be revived except upon new material evidence being obtained. XI, 202, DecemnJier^ ISGIf.; XXV III, 370, Fehruary, 1869. Charges once accepted as a sufficient basis for action, by the commander competent to convene a court for their trial, cannot properly be withdrawn except by his authority.^ XXI, 56, Xovemher, 1865. 721. A list of the proposed witnesses is no part of the military charge, though such a list may properl}^ be and is not unfsequently appended to a charge. In serving upon the accused a cop}^ of the charges, it is not essential, though the better practice, to add a cop}'^ of the list of witnesses where one is appended to the original charges.'^ XXV, 350, February., 1868. 722. It is a reprehensible practice to allow charges to lie long dormant before being preferred. Charges should not be delayed but should be brought to trial as soon as practicable and while the evidence is fresh; a delay of five months being remarl'ed vpon as prejudicial to the administration of justice and unfair to the accused. 24, 283, May., 1888. 723. Charges, though prepared in the Oflice of the Judge- Advocate General, are not in practice signed b}- him. If not signed by the officer actually preferring them, the}" will properly be authenticated l)y the signature of the acting judge advocate of the department, or, pref- erably, b}' the judge-advocate of the court. XLVII, 521, September, 188 J^} 60,"^ 257, June, 1893. 724. An objection that a charge is not signed should be taken at the arraignment — when the omission may be supplied by the judge advocate's affixing his signature. By pleading the general issue the accused waives the objection. 59, 258, 2fay, 1893. 725. But, to be taken cognizance of by the court, it is not essential * 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 amend- ments. See § 1532, post. After the arraignment, amendments of form may always he 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 substantial as materially to modify the "matter" before the court, will not in general be authorized (see Eighty-fourth Article ) , 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 Ninety-third Article. As to the authority of the court or judge advocate to strike out or vithdrcuD a charge or specification, see §§ 999, 1.532, and 1797, jXfst. ^Appending such a list does not preclude the prosecution from calling witnesses not named therein. 204 CHARaE. that a eharg-e should be signed l)y any officer. If, though not so signed, it be duly officially transmitted by the convening connnander, or other competent superior authority, to the court — either directly or through the judge-advocate — "for trial," or "for the action of the court,'' or in terms to such effect, it is sufficiently authenticated for the purposes of trial, and trial- upon it may be proceeded with by arraignment thereon of the accused. LV, 369, Marcli^ 1888; XXX, 480, July, 1870; 59, 258, May, 189S; Card 3913, Ajnnl, 1898. 726. A charge expressed in too general terms is faulty and imperfect: the accused is entitled to know for what particular act he is called to account. Thus a specification under Art. 62, in a case of an officer, which set forth, not a specific act of offence, but an habitual course of conduct as incapacitating- the accused for service or for the perform- ance of his proper duty, held seriously defective and subject to be stricken out on motion. For such conduct indeed the remedy is not by charge and trial but by retirement under Sec. 1252, Rev. Sts. L. 469, January^ 1886. 727. A charge expressed in the aUernative — either under Art. IT or Art. 60 — is irregular and defective, and, upon motion, may be stricken out or required to be amended. LI, 248, Decemher, 1886; 297, Jan- uary.^ 1887. 728. The order fixing maximum punishments prescribes different limits of punishments for wilfull}" and for negligenth' allowing (b}' an enlisted man) a prisoner to escape, as separate offences, under the 62d Article of war. A charge for suffering an escape under this Article should therefore indicate in the specification whether the act is alleg-ed to be wilful or negligent only. 48, 220, July, 1891. 729. The allegation of time in a specification should be as nearly defined as the facts will permit; but where the act or acts charged extended over a considerable space of time, it may l)e necessary to cover such period in the allegation. Thus allegations of — "from March to September, 188T," and — "from May to October, 1888," have been countenanced in a case in which the accused was charged with the neglect of a duty the performance of which was thus continuous.^ 31^ 357, Ajyril, 1889. 730. A middle name or initial is no part of a person's name in law, and, except where it is necessary to identify the individual, may be omitted from the charge without affecting the validity of the finding or execution of the sentence. 34, 400, August, 1889. So, a misnomei in a charge, consisting of an erroneous middle name or initial, may be disregarded in a charge unless the accused moves to strike out or > See G. C. M. O. 21, A. G. O. of 1889. CHIEF MUSICIAN. 205 interposes an objection, in the nature of a plea in abatement, when he must also state his true name. The charge may then be amended accordingly in court, without delaying the proceedings. LU, 675, Octohe>\ 1887. 731. A material amendment of a charge should properly l^e made before the actual trial. Where a court martial, after the trial was .concluded, directed a specification to be amended so as to render it more definite as to time and place, and then caused the accused to be arraigned and to plead over again, nimc pro tunt\ held that its action was without sanction of law or precedent. XLVIIT, 315, TvZi- Tuary^ ISSJ^. 732. A failure, at the arraignment, to take notice of a variance between the form of a specification to which the accused is called upon to plead and such specification as it appeared in the cop}" of the charges served at his arrest, is a waiver of the objection, and the same cannot be taken advantage of at a subsequent stage of the proceedings. 64, 172, 2rarch, 189 J^. 733. The statement as to enlistments, discharges, &c., required, by the Army Regulations, to be furnished with the original charge to the convening authority, is not intended to be accompanied by a declara- tion, on the part of the commanding officer of the accused, as to his present characfer. The regulation does not calt for the ofiicer's opin- ion on the subject, or contemplate that the character of the accused will be taken into consideration at this time. 39, -159, March, 1890; 43, 10, September, 1890. CHIEF MUSICIAN. 734. A ''chief musician'- is not an oflicer but an enlisted man (see act of March 3, 1869, c. 121, s. 5; and Sec. 1342, Rev. Sts.); and, not being (like a hospital steward or ordnance sergeant — par. 895, Army Regs, of 1863) specially exempted from trial by a regimental or garri- son court, is subject to the same, for ofi'ences within the jurisdiction of such court, equalh' as to trial by a general court martial. XXXI, 212, 2[arch. 1871. 735. The chief musician of a regiment is an enlisted man, but not a non-commissioned ofiicer. He is also enlisted, not to perform the duties of a soldier, but expressly as an ''instructor of music." (Act of March 3, 1869, c. 121, s. 5; Sees. 1099, 1102, 1106, Rev. Sts.) So held that he coukl not legally be reduced to the ranks, either by sen- tence or by order. ^ XXXIII, 33, May, 1872. iCnmpare now act of March 2, 1S99, published in G. O. 36, A. G. O., 1899. 206 CIVIL SUIT OR PROCESS. CITIZENSHIP. 736. The mere enlistment and honorable discharge of an alien as a soldier of our army do not per «t^ constitute him a citizen of the United States. He must still make formal petition to one of the courts, &c., specified in Sec. 2165, Rev. Sts., and present thereupon the evidence required by Sec. 2166.' LV, 167, December, 1887. 737. A native-born minor is a citizen of the United States under the XlVth Amendment of the Constitution. Card 181, August, 189Jf. CIVIL SUIT OR PROCESS— AMENABILITY OF MILITARY TO. 738. Ildd, on the analogy of the principle protecting an officer's pay from being taxed by the authorities of a State (see Tax), that the necessary and proper baggage of an officer travelling on dut}^, of not greater amount than allowed by the Ami}- Regulations to be trans- ported with him at the public expense, was properly exempt from attachment in a suit for a private debt. An ofiicer, however, can not be allowed to claim such an exemption to an unreasonaV)le extent, and should he assume to transport or procure to be transported with him any considerable amount of baggage greater than that permitted 1)y the regulations, he'would ]usth' liecome liable to the consequences of the abuse of his privilege. In such a case he could not claim to be sustained b}" the government in resisting an attachment or execution levied upon his effects. XXXV, -IS-l, July., 1871/.. 739. //t/(7 that the personal property of an officer required to be pos- sessed and used b}^ him in the regular performance of his military duties — as, for example, his sword, or, in a case of a moiuited officer, his horse — coidd not legally be seized upon an attachment or execution issued in a suit brought in a State court. XXXIII, 8, March,, 1872. 740. The legality of the service, at a military post, of process issued in a suit or prosecution instituted in a State court 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 reser- vation of the same by the United States upon the admission of the State, or of its suT)sequent surrender by the State) or is shared by the State go\-ei-nment. Where, b}' an act of consent or cession of the legis- lature of a State in Avhich a military reservation or post is situated, exclusive jurisdiction over the same has become unconditionallv vested » ^See act of Aug. 1, 1894, which prescribes that "in time of peace no person (except an Indian) who i.s not a citizen of the United States, or who has not made legal declaration of his intention to become a citizen of the United States * * * shall 1)6 enlisted for the first enlistment in the army." CIVIL SUIT OR PROCESS. 207 in the United States, as contemplated b}^ Art. I, Sec. 8 cl. 17 of the Constitution, no process issued from the State courts can legall}' be served thereon, but only process issued from courts of the United States can be there executed. Where, however, in ceding jurisdic- tion, the State has reserved to itself the right, not unfrequently reserved under the circumstances (and which it is often for the advan- tage of the United States to have reserved, since otherwise the post might become an asylum for criminals — see Cession of Jurisdic- tion) to serve 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 tri- bunals may be executed 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' post as elsewhere in the State; the mere fact of the ownership or occupation of the land by the United States having no effect to except it from the operation of the State laws.i XVI, 514, August, 1865; XXI, 567, July, 1866; XXXIII, 8, 2[imjh, 1872. 741. 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 defendants in civil actions, or to attach, replevy upon, or take in execution any property 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 Territor}^ are not the courts of a sovereignty distinct from the United States but are the creatures of Congress,^ being established b}^ it direct!}-, or indirecth" b}^ its authorit}' through the Territorial legis- lature, under the provision of the Constitution (Art. IV, Sec. 3, par. 2), empowering Congress "to make all needful rules and regulations respecting the Territory 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 mili- tar}' post for the purpose of serving process therein, or ut least from making the service, till formal permission for the purpose had been sought and obtained from the commanding officer, 3^et, on the other ^ See Cessiox of Jurisdiction* and authorities cited. ^ "A Territory is not properly sovereig;n. It is an organization through and by means of which Congress for a time governs a particular portion of the country. Its rights are those which are set forth in the organic act." (16 Opins. At. Gen., 114,115.) 208 CIVIL SUIT OR PROCESS. hand, officers commanding military posts in the Territories should cer- tain!}' interpose no obstacle to the due service within their commands of the legal process of the Territorial courts. ' XXVIII, 1, Jn/(/, 1868; XXXIX, 541, May, J878. 742. When an officer or enlisted man has been arraigned before a duly constituted court martial for an offence legally triable by it, the jurisdiction thus attached cannot be set aside by a process of a State court; the jurisdiction of the latter being for the time suspended. The offender ma}^ of course be voluntarily surrendered by the United States. 2 8, 484, Jime, 1886. 743. It is settled that a State court can have no authority to enjoin the United States judiciary from executing their judgments, or from proceeding with actions of law pending before them.^ Similarly held that a State court was not empowered to enjoin an executive depart- ment or officer of the United States from performing the contracts of the United States, and, accordingly that an injunction issued in a suit in a State court prohibiting an officer of the army, charged with the duty of paying to a contractor a certain sum of money due him under a contract between him and the United States, from paying said sum, would legally and properly be disregarded by such officer.* XLII, 128, January^ 1879. 744. Contracts were made with two different contractors to dredge separate designated subdivisions of the lake channel at Toledo, Ohio, and one of the contractors, l)y direction of the engineer officer in charge, began dredging in the subdivisions covered by the contract with the other. Wher{;upon the latter obtained an injunction from the State court enjoining said dredging. ILld that while a State court was without power to ciijoin a person working under the orders of an agent of the United States from making or completing an improvement for which Congress has made an appropriation," the proceeding in ' See the opinion of the Judge Advocate General pubhshed in G. 0. 30, Hdqrs. of Army, 1878, in connection with 7 Opins. At. Gen., 564. But see conlra, In re Charles Brown and Au.«tin Burke, on Habeass Corpus (September 1884), "In the District Court [Territorial] of the Second Judicial District, holding terms at Vancouver," puVjlished in Circular 21, Department of the Columbia, June 15th, 1885. ^6 Opins. At. (ien., 423. ^McKim r. Voorhies, 7 Cranch, 279; Duncan v. Darst, 1 How., .306; City Bk. of X. Y. V. Skelton, 2 Blatch. 26; Riggs r. Johnson Co., 6 Wallace, 166; United States r. Council of Keokuk, id., 514; ^lariposa Co. r. (iarrison, 26 How. Pr. 448; English v. ]\Iiller, 2 Rich. E({. 320; Chapin r. James, 1 1 R. I., 86. *See the suV)sequent confirmatory opinion of the Attorney (Jeneral in this case, in 16 Opins., 257. in an earlier opinion oi the Solicitor General ( 15 Opins., 524) , it was held that as a State can not l)y its judicial process legally obstruct or indirectly interfere with the operations of the U. S. government, a State court could not be autlu)rized to enjoin a contractor with the United States from receiving payments under his contract and thus hinder liiin in the due i)erformance of the same. MVisconsin r. Duluth, 96 U. S., 379. CIVTL SUIT OR PROCi;SS. 209 question had no such puipose in view, did not in any way interfere with the improvement as contracted for by the United States, hut simply prevented one contractor from infringing upon the rights of the other under his contract, that therefore the State court had juris- diction of the case and power to enforce its decisions. 49, 313, October. 1891. 745. "SMiere. 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, hdd that the act of the officer was wholly unauthoiized. and — an indictment having been found against him. in a United States court — advised that he be rec^uired to surrender himself to the U. S. attorney or marshal for trial. XXVI. 468, February , 1868. 746. In a case in which, in 1S73, a judgment was obtained in a Terri- torial coui't against two officers, for an act perfoi-med in good faith and in the zealous and conscientious discharge of what was believed to be a public duty devolved upon them by an order of the depaitment commander, and this judgment was subsequently (in 1S77) affirmed by the Supreme Court of the United States ^ — the officers ha\-ing been defended by counsel assigned to defend them by the Department of Justice, — adci.r under the orders of a proper superior: otherwise, however, as to injuries or wrongs done in the absence of legal orders, or on the personal resix»nsibility of the individual. See, as illustra- ting this subject the decision of the Supreme Court in Beard r. Burts, 5 Otto, 434. In the case of In re Murphy, Woolworth, 141, it was held by Justice Miller that the act of 1867 was ex po-H facto and unconstitutional, in so far as it assumed to validate pnni^hmenls imposed by military courts which wotild otherwise be invalid. ' See, on this subject, § 784, pij-st, and notes, 169CM5 — 01 14 210 CIVIL SITIT OR rUOCESS. preclude service upon the soldier of papers in a suit for divorce. Card 7413, Decemher, 1S09. 749. Jfrhl that the arrest of an enlisted man for a contempt in not complyiu<;- ^vith the legal order of a civil court to pay a certain sum for the maintenance of his wife, was a legal proceeding and not within theprohi])ition of Sec. 1237, Rev. Sts. Such an arrest is not an arrest "on mesne process" or "in execution for j\j, del)t,"' but an arrest on a judgment on conviction of a criminal offence,^ analogous to an impris- onment duly adjudged on conviction of an ordinary crime or misde- meanor. 51, 478, Fc^ruarii^ 1892. 750. AMiere an enlisted man who had been served at his post (which was not under the exclusive jurisdiction of the United States) with a subpcjena requiring his attendance as a witness before a civil court of the State, neglected to comply, — Jield that he was guilty of contem'pt^ and, if fined l)y the court, had no remedy; and this though the service was personal and not made through the connnandi ng officer. 35, 281, Septemhe7\ 1880. 751. A United States officer or agent, in charge of lands of the United States, who is made a defendant in a suit in a United States or a State court in which title to such lands is claimed by an individual, should duly appear and answer in court, and is not authorized to int(;rpose physical force against the service of due process of the court in such a suit, however groundless ho may believe it to be. So advised that the military" force employed to pi-otect the possession 1)}^ the United States of a cemeter}' reservation at El Paso, Texas, to which title was claimed in a suit instituted by a citizen, be withdrawn, or at least ordered to obstruct in no manner the due execution of judicial process on the premises. 52, 1S2, Fehruai'y, 1892. 752. The owner of land occupied })y a canal, constructed as an improvement inider a River and Harbor Act, may, I)}' the authority of the ruling of the Supreme Court in the leading case of U. S. v. Lee,^ maintain an action of ejectment or trespass against the official representative of the United States in charge of the improvement. 35, 191, Se2:>teuil)ci', 1889. 753. Jleld that it was not within the constitutional power of Con- gress to enact that the United States should not l)e lia])le for dam- ages caused by the prosecution of a public work, and therefore that the Government could not, through a provision of law to that effect, escape liabilit}^ for losses incurred b}' third parties from fiowage caused by a harbor improvement. If it would be liable to them in ' That contempt of court is "a specific criminal offence," see New Orleans v. Steam- ship Co., 20 Wallace, 8S7, 892. ' lOG U. S., 196. And see the case of Stanley v. Schwalby, 85 Texas, 348. CIVIL SUIT OR PROCESS. 211 the absence of such law, a statute providino- that it should not be liable would be unconstitutional as being an attempt to deprive them of a property right 1)}' legislation. 56, 478, -185, iJecemher, 1S02. 754. The legislature of the State of Washington passed an act, approved March 7, 1893, making unlawful and punishable by fine and iin))rlsonnient the manufacturing, buvingor selling, or living or fur- nishing to any one, of cigarettes or cigarette paper, which act has not (July, 1893) been judicially pronounced unconstitutional. Held that, so long as the same remained in force, an officeror soldier offend- ing under it would })e legally liable (unless his act were committed on premises under the exclusive jurisdiction of the United States) to arrest and punishment, and that a due consideration for the inter- ests of the service, as well as a due respect for the State sovereignty, should induce military persons at a military post to avoid all cause or occasion of offence in the particulars made penal by this act. 60, 350, Jnly, 1803. 755. It is not within the province of the War Department to afford to officers of the army protection against suits instituted by civilians claiming to be their creditors. 64, 63, Fehruary, 189.!}.. Nor can the Government properly act as collector of private indebtedness due from officers or enlisted men of the armj'. In such cases resoi't should be had to the civil courts. Where, however, the question Ijecomes one of conduct unbecoming an officer and a gentleman on the part of an officer or of conduct to the prejudice of good order and inilitary disci- pline on the part of either an officer or enlisted man, action maj' be taken by the War Department on these questions only.^ Cards 5482, iMrenJjrr, 1808; 5931, Mfjcrch, 1800. 756. Where a soldier, sentenced to imprisonment in th(; ^Military Prison, was temporaril}^ detained at a military post awaiting transfer to Leavenworth, and application was made by the ci\"il authoriti<'s that he be turned over to them for a trial upon a criminal chai'ge, luld that he should be forwarded as soon as practicable to the ^Military Prison to serve out his sentence, and that the civil authorities should be respect- *The Secretary of "War does not undertake the collection of debts due private per- sons from officers and soldiers, nor to require a preference for any particular creditor in payment in such cases. His aim is to protect the character and standing of the army, and to eliminate from it those guilty of dishonorable conduct. A\'h('n* charges of such conduct are made they will be promptly investigated, and where statements of non-payment of debts are made against officers, they will be investigated with this end in view. Ruling, Secretary of War, November 18, 1897. Complaints of non-payment of debts due from officers on the active list and under the control of department connnanders are in practice referred for the "necessary action" to the proper department headquarters and the complainants notified of the above ruling of the Secretary of War. The complaints need not be accompanied by or be in the form of formal charges — a statement of the acts and confluct complained of is sufficient as a ba^^is for investigation. Formal charges can be prei^ared when as a result of the investigation such action is required. 212 CIVIL SUIT OR PROCESS. fully informed as to his statm and advised that proper facilities would be afforded them for assuming the custody of the prisoner immediately upon the completion of his term of imprisonment. 62, 358, Noveirtber^ 1893. Ibl. Where a man while serving as a juror enlisted in the army, held^ that the AVar Department had no authority by reason of such enlist- ment to compel the judge to excuse him from further jur}^ service. Card 4460, June, 1898. 758. In the case of Belknap v. Schild (101 U. S., 10), decided by the U. S. Supreme Court in February, 1806, it was held that where the United States owns a piece of property and is in peaceable possession of it, the Government cannot bo enjoined by courts and prevented from using it for the government purposes for which it was intended. So where, after an electric plant had been constructed under contract at Watervliet Arsenal, suit was subsequently brought against the con- tractor by another electric company for infringement of its patent in the construction of the plant, making the commanding officer of the arsenal a defendant, asking for damages and that the latter be per- manently enjoined from using the plant, Jield upon a request by the contractor for final payment, that in view of the decision of the Supreme Court cited, there was no ol)jection to making the payment. Card 716, Ajyrll, 1896. 759. The fact that a vessel lying at a wharf in Savannah, Ga., was a United States transport does not take a criminal offence committed thereon out of the jurisdiction of local courts. Whether as a matter of military necessity in time of war, such jurisdiction should be dis- regarded, it was unnecessar}' to consider, as no such necessity existed in the particular case. Card 5635, January, 1899. 760. On the question whether quartermasters on board U. S. trans- ports can bo summoned before a U. S. commissioner, on claims for pay made by seamen, remarked, that when an officer of the arm}^ is served with a summons from a United States court it is his duty to respond to the same; that this is recognized by the ami}' regulations and has become the practice. Recommended therefore that this course be pursued in all cases instituted in the U. S. courts for seaman's wages, but the officer whoso duty it becomes to make response to the summons should forthwith notif}^ the proper U. S. district attorney of the institution of the suit and request him to defend the same, and at the same time report action to the War Department, by telegraph, if necessary, to the end that the Attorney General may be requested to give the district attorney an}' required instructions in the matter. Card 5647, January, 1899. CLAIM. 213 CLAIM.^ 761. Under the law and practice goveruiug- the Executive Depart- ments, a head of a department is held not to be in general empowered, without specific statutory authorit}' for the purpose, to reopen (except for the correction of an error in calculation) a claim once duly settled by his predecessor, in the absence of new and material evidence clearly entitling the claimant to an additional allowance.^ So Jield^ that, in the absence both of new evidence and new statutor}'^ authority, the Secretar}" of War would not l)e empowered to reopen and reconsider a claim for the repayment of a certain sum (paid as commutation money by a part}" who claimed to have been illegalh' drafted), the question of the allowance of which had been duly considered 1)}" a former Secretary (under a statute authorizing him to repay the same if deemed to be justl}' due), and had been unfavorably determined, ten 3^ears before. And this, though the correctness of such determina- tion was considered to be doubtful; the proper recourse of the claimant in such case being to Congress. XLII, 357, July, 1S79. 762. As a general rule, a claim decided adversely b}^ a former, can not be reopened by a later. Secretary, in the absence of new evidence going to the merits. ^2,4^1?,, Aagust, 1890; Cards 6S7,Decemhe);lS94.; 1408, ^ The reason of the restricted authority (illustrated under this Title) of the Execu- tive department in the allowance of claims may be found in the princi])le of public law, as expressed by Miller, J., in the case of The Floyd Acceptances, 7 Wall., 6(36, 676, — that "in our structure of government all power is delegated and defined by law: * * * we have no officers, from the President down to the most subor- dinate agent, who does not hold office under the law, with prescribed duties and limited authority." ^U. S. V. Bk. of Metropolis, 15 Peters, 377; Rollins and Presbrev v. U. S., 23 Ct. Cls., 106, and cases cited; AYaddell's Case, 25 id., 323; 9 Opins. At. Gen., 32; 12 id., 355; 14 id., 275; 15 id., 192; 16 id., 452; 1 Comp. Dec. 193; 2 id., 264, 401; 4 id., 303; 6 id., 236, 245. In Rollins and Presbrey, v. U. S., supra, it was held, quot- ing from syllabus, that "any i)ublic officer in an Executive Department may correct his own errors and open, reconsider, or reverse any case decided by himself." In delivering the opinion of the court, Chief Justice Richardson said: "It has long been held in the Executive Departments that when a claiin or controversy between the United States and individuals therein pending has once been fully considered, and final action and determination had thereon by any executive officer having jurisdic- tion of the same, it can not be reopened, set aside, and a different result ordered l)y any successor of such officer, except for fraud, manifest error on the face of the pro- ceedings, such as a mathematical miscalculation or newly discovered evidence, pre- sented within a reasonable time and under such circumstances as would l)e sufficient cause for granting a new trial in a court of law. This ruling and practice of the Departments has been approved elsewhere and has been sustained by the courts. (9 Opin. At. Gen., 34; 12«/., 172, 358; 14 id., 275, 387, 456; 15 Pet., 401; Laralette's Case, 1 Ct. Cls., 147; Jackson's Case, 19 id. 504; State of Illinois Case, 20 id., 342; ifcKee's Case, 12 id., 560; Daifs Case, 2\id., 264, and the opinion of the Judiciary Committee of the Senate, reported by Senator and Judge Daviil Daxis, quoted in Jackson's Case above referred to. ) But it has never been dou])ted that any public officer in the Departments may correct his own errors, and open, reconsider, and reverse in whole or in part any case decided by himself. ' ' 214 CLAIM. June^ 1895. It is only for fraud, manifest error on the face of the pro- ceeding's (an erroneous calculation for example), or newly discovered evidence presented within a reasonable time and sufficient to warrant a new trial at law, that a claim or controversy, finally passed upon by a head of a department, may, in the absence of specific authority from Congress, be reopened by a successor. 34, 225, ^?)1., August^ 1889; 39, 23, February, 1890; 47,"^ 223, Jfay, 1891; 53, 443, 3fat/, 1892; 54, 462, August, 1892; 68, 109, Fehruary, 1893. But any public officer may correct his own errors and reopen his own decisions.^ 34, 225, Aiigust, 1889. 763. A final settlement of a claim under special statutory authority, followed by receipt and acceptance by the claimant of the amount awarded, estops the claimant from questioning that such allowance and payment constituted a full and final satisfaction of his entire claim. ^ So where the Secretary of War, pursuant to act of Congress, had settled the claim of a railroad co. for military transportation by the allowance of a sum which was paid and accepted as a final award, held that without new authority from Congress, he could not reopen the case for the purpose of allowing further credits, except to correct errors in calculation. XLII, 332, J^une, 1879. 764. "Whore a claim has once been settled by a preceding Secretary under the provisions of a statute imposing such duty upon him, and subsequently a resolution is adopted by one house of Congress, or a committee thereof makes a report, adverse to the decision of the Secre- tarv, such resolution or report may properly serve as a ground for reopening and again examining and settling the case; and while the views of the committee, or those indicated in the resolution, as to the meaning of the statute are entitled to respectful examination and con- sideration b}" the Secretary, they arc not binding upon him in the reexamination and settlement of the claim. He must look solely to . the statute which gave him jurisdiction and act according to his own best judgment of its meaning.'' 56, 6, Octoher., 1892. 765. An ex(»cutivc official cannot, of his own authority, appropriate the money of the United States for the purpose of satisfying a claim. So 7//7r7that 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 expended in the public service, whether ^See note to § 761, ante. "5 Opins. At. Gen., 122; 10 id., 259; 12 id., 386; 4 Comp. Dec, ,328; 6 id., 858. "Where a claimant has lieretofore presented and has been allowed a claim for a part f)f an entire demand arisino; out of the same service and in the same rijjht, such par- tial allowance is a settlement of the whole demand and a subseiiuent application for the remainder will be disallowed." 4 Comp. Dec, 328. =* 19 Opins. At. Gen. , 388. CLAIM. 215 or not the same was legally exacted, but that Congress must be applied to for the necessary action/ XVIII, 668, Jlarch, 1S66. 766. The Government will in general recognize assignments of claims to moneys in its hands due and paj^able to individuals, so far as to con- sent to pa}^ over the amount to the assignee, where the assignment is made according to law, vh.^ Sec. 3477, Rev. Sts.*^ But parties repre- senting opposing interests cannot, by presenting to a head of a depart- ment conflicting claims to such money, compel him to become a stake- holder for them or an arbitrator upon the merits of their demands. Where there is any doubt as to whom the money should be paid, the claimants should properly have recourse to Congress or the courts. XIX, 266, DeccmJ>e,\ 1865. 767. Where a claim for pa}^ for military service, not yet allowed, had been won from the owner in a bet on a horse race, and a power of attorney to collect the same had been executed by the owner to the claimant, held that such power was, in effect, an assignment of the claim, and as such was — whether fraudulent or not — "absolutely .void," under Sec. 3477, Rev. Sts. LII, 95, 2Iarch, 1887. 768. Notwithstanding the equitable principle that interest is an inci- dent of a debt, the rule is well settled that, except where its payment is expressly stipulated for by contract, or specifically authorized by act of Congress, the United States is not bound, nor is any executive official empowered, to pay interest on claims, whether arising out of contract or otherwise.^ XXI, oio-i:., July., 1866; XXXII, 606, 2fay., ^A claim, though deemed by the Secretary of War to be probably ji^st, cannot in general, in the absence of any appropriation 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 cjuite 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 department of the government empowered by law to take specific action in his case. ^ Assignments of claims not made as prescribed in this section are declared to be "absolutely null and void"; but this statute was intended to protect the Govern- ment and not the claimant and to prevent frauds upon the Treasury and the pay- ment will be good as to him. Price r. Forest 173, U. S., 410, 423, and authorities cited. While the accounting officers will not approve powers of attorney not executed in accordance with the statute, if disbursing officers in fact make payments to per- sons holding unrevoked and undisputed powers of attorney, the accounting officers are compelled, under the decisions of the Supreme Court, to allow the disbursing officers credit for such payments in the settlement of their accounts. 1 Com. Dec, 142. See also, 2 id., 29.5; 4 v/.,_ 196; 6 id., 101; 16 Opins At. Gen., 261. This section, however, does not prohibit the passing of claims to heirs, devisees, assignees in bankruptcy, or even voluntary assignment for the benefit of creditors, because the passing or transfer of claims in such cases does not come within the evil at which the statute is aimed. Erwin v. XT. S., 97 U. S., 392; Goodman v. Niblack, 102 id., 556; 2 Comp. Dec, 50; 6 id., 103. See also, 20 Opins. At. Gen., 578. =»Angarica v. Bavard, 127 U. S., 251,260; Harvev v. U. S., 113 id., 243; Tillson v. U. S., 100 7V7., 43; "Todd v. United States, Devereaux (Ct. Cls.), 95; United States v. McKee, 1 Gtto, 4.50; 1 Opins. At. Gen., 550, 5.54; 2 id., 463; 3 id., 6.35; 4 id., 14, 136, 286; 5 id., 72, 105, 138, 334, 3-56; 6 id., 533; 7 /(/., 523; 9 id., hi, 449; 14 id., 30; 17 id., 351. In the absence of statutory authority, a military officer, in entering into a contract as the rejHvsentative of the United States, should not stipulate with the contractor that, in case payments due him under the contract are delayed beyond a certain time, he will be entitled to claim interest thereon. 216 CLAIM. 1872; 52, 427, March, 1892; 54, 464, August, 1892. So held that a State or Territory was not entitled to be allowed interest on the amounts found to have been expended hy it in raising, arming, sup- porting, &c., volunteers, under the act of June '21, 1882; that act not making provision for any allowance of interest/ LI, 200, Decemher, 1886; 420, January, 1887; LIII, 238, 2Iiirch, 1887. 769. Neither the Secretary of War nor any executive official can, without authority from Congress, be empowered to pay, allow, or favorabh^ entertain an unliquidated claim or claim for an unsettled, undefined amount.'^ A claim for unliquidated damages, as such a claim is commonly designated, is a claim for an amount not fixed by an express contract or capable of being fixed by the terms of such a contract but based upon an alleged implied contract or an alleged wrong. 54, 386, July, 1892; 63, 180, 228, January, 1891).; Cards 3(327, Novemler, 1897; 3969, Sejjtemher, 1898; 5573, January, 1899; 5901, March, 1899. Such claims, if within the description of the act of March 3, 1887, should be sued upon in the Court of Claims or U. S. district courts, which have been invested by that act with a concurrent jurisdiction of certain claims based upon implied contracts with the Government and "for damages liquidated or unliquidated/' 20, 109, Octoler, 1887. 770. The Secretary of War, in the al)sonce of authority from Con- gress, is not empowered, to allow a claim for mdiquklated damages; the term "damages" being here used in its legal sense. In general, in the absence of a specific appropriation by Congress for the pur- pose, no executive or military officer can legally pay or allow to an individual a sum of mone}^ not expressly stipulated to be paid to him by the terms of a lawful contract. A claim for an amount not fixed by express contract, or capable of being fixed according to its terms, but 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, l)y an executive department of the gov- ernment. Claimants for unliquidated damages must have recourse to Congress or, in a limited class of cases, to the Court of Claims. XXXII, 433, March, 1872; XXXV, 111, January, 1871^.; XXXVII, 233, January, 1876; XXXIX, 417, February, 1878; LIII, 279, April, ^Compare 17 Opins. At. Gen., 595. 2 Dennis t'. U. S., 20 Ct. Cls., 119; Brannen ^'.U. S., id., 219; Pitman %\ U.S.,«/., 253; 1 Comp. Dec, 261, 283; 2 vV/., 174, 488; 4 «/., 446; 5 (V/., 693, 770; 6 Id., 1^1. But payment maybe made f(ir work or materials furnished and received under a contract express or implied, thoULrh the price is not tixed by such contract. McClure r. U.S., 19 Ct. Cls., 179; Dennis v. U.S., 20 id., 119; Pitman v. U. S., /(/., 253; 1 Comp. Dec, 283; 2(V/.,3()5; 3 (>/., 365, 565; 6 »V/., 648, 953; lid. (dated March 12, 1901) . And where it is to the interest of the United States the Secretary of War may enter into a sui)pleniental contract with a contractor, discontinuing an existing contract on payment to the contractor of a stipulated sum. U. S. r. Corlis Engine Co., 91 U. S., 321; Satterlee r. U. S., 30 Ct. Cls., 31; 3 Comil Dec, 54; 6 id., 953. CLAIM. 217 1887; 33, 4(5, June, 1880. Thus held that the Secretary of War was not empowered to allow a claim of a contractor for damages for the non- performance of a contract on the part of the United States, no such damages being stipulated for in the contract/ XXXII, 433, Marcli^ 1872. So held that the Secretary of War was not empowered, in the absence of statutory authority, to allow- a claim for the use and occu- pation 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 Congress (or the Court of Claims) for his reasonable compensation. XXXVII, 534, May, 1876. Similarly held that the Secretary of War was not empowered to allow the claim of a citizen, who had been per- mitted to make certain improvements upon public land, to be indemni- fied on account of alleged injury to his propert}- and business caused by the extending of the limits of a military reservation over the land occupied by him. XLII, 592, April, 1880. So held that the Secre- tary- of AVar 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 (XXI, 122, Decemher, 1865; XXVI, 597, June, 1868); or a claim for his arrest and detention as a deserter made b}^ a party claiming to have been illegally drafted {XIV, 405, April, 1865); or a claim for an alleged wrongful arrest and confinement made bv a prisoner of state, or suspected person in time of war (XV, 129, 4?>r^7, 1865; XIX, 166, Mvemher, 1865; XXXVI, 522, Jime, 1875); or a claim for reimbursement by a military employee for loss of wages during a period of an arrest and trial b}- court mar- tial, the conviction in his case having been held to be invalidated by reason of a defect in the proceedings (XIV, 225, Felruary, 1865); or a claim for the value of personal property illegally appropriated by a soldier (XLII, 295, May, 1879); or a claim for the value of property taken or destroyed by the army during a war. XX, 603, May, 1866; XXXIII, 128, ^July, 1872. 771. And where the claims were for corn taken from a field and damage done to fences by U. S. soldiers encamped in the vicinity (Card 668, Xovemher, 189Jf); for damages to a crop by cavalry horses breaking into the field (Card 1553, July, 1895); for damage to a phae- ton and harness caused hj the runaway of a horse, caused by a stam- pede of LT. S. cavalry horses (Card 2611, Seinemler, 1898); for dam- ages done by U. S. troops to crops and fences in field maneuvres and to lands used for drilling purposes, there being in the latter cases no contract express or implied l)y which the Government agreed to pay 1 See 4 Opins. At. Gen., 327; 6 id., 499, 516; 9 id., 81; 14 id., 24, 183. 218 CLAIM. for the damao-es (Cards 4315, Jane, 189S; 4658, 4686, July, 1898; 4771, 477:i, August^ 1898; 5029, Octohir, 1898)\ held t\\?ii as the claims were for unliquidated damages, neither the Secretar}^ of War nor other executive official could without statutory authorit}^ pa}^ or allow the same. 772. Where a claim for damages on account of an alleged infringe- ment b}^ the United States of a patent was made, held that if the claim were substantiated by proof, it would be one for unliquidated damages, which the Secretar}^ of War would not be empowered to pay without authority of Congress. Card 595, Kovemher^ 1891^, and Janu- ary, 1898. 773. In the absence of legislative authority the Secretar}^ of War cannot allow a claim for unliquidated damages directly nor can he allow it indirectly by entering into a supplemental contract to allow it. Thus where it was proposed by supplemental contract to compen- sate the contractor "for all losses arising from dela3^s caused by the aforementioned modilications of plans and specifications and for all other claims of whatever nature arising under said original contract," held that this stipulation being for the payment of unliquidated dam- ages the Secretary of War was without authority to bind the Govern- ment to the same.^ Card 2275, 21ay, 1896. 774. The declaration in the Vth Amendment to the Constitution, that private 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 property 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 province of an executive officer to assume to pass final judgment upon the merits of such a claim. XXXVII, 7, January .^ 1875. 775. JTeld that the provision of Sec. 3480, Rev. Sts., making it unlaw- ful to pa}' certain claims against the United States to persons who promoted, &c., the late rel)ellion, created a personal disability only, which could not operate against the heirs of parties thus disqualified, unless they too participated in the rebellion. XXXIX, 417, February., 1878. 776. Without special authority for the purpose conferred by Con- gress, the executive branch of the Government camiot be empowered to pay an}' 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 appropriated for the use of the Federal army by the ^ But Hee note to § 769, ante. CLAIM. 219 militaiy authorities; or for land or Ijuildings occupied for military purposes; or for land or property occupied or used in making fortiii- cations or otherwise in the common defence — during the civil 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 pur- pose has been justified by a necessity of the service incident to a public emergency (and the officer making the seizure, &c., is thus relieved from being treated as a trespasser and made personally amenable in damages^), yet may, in view of the constitutional provision for the ren- dering of just compensation for private property taken for public use, be sued and recovered upon in the Court of Claims, where within its statutor}^ jurisdiction. In such cases the obligation thus created ' ' raises an implied promise on the part of the United States to reimburse the owner."' XX, 525, 598, April and May^ 1866,' XXII, 304, August^ 1866; XXVI, 52, 242, Septemha- and December, 1867; XXXVI, 1, Fehruary^ ISllf.. 777. As to the classes of claims for quartermasters and subsistence stores authorized to be settled by the act of July 4, 1864 (as amended by subsequent acts,^ and now incorporated in Sees. 300 A and 300 B, Rev. Sts.), it was hdd as follows: («.) That the term — *'Jill dalins of loyal citizens in States not in rebellion '' meant claims not only of "loyal " claimants but claims origi- nating 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, 599, Felrrnary, 1866; XIX, 538, Ajrril, 1866; XX, 318, 355, January, 1865; XXI, 19, 132, 243, 248, November, 1865, to Fdjruary, 1866; XXXIII, 125, July, 1872. On the other hand, a claim originating in a State "not in rebellion" was Jicld within the act, although the State or locality where it originated may have been at the time occupied b}" the enemy or the theatre of war. XXV, G2l, June, 1868. Held further that the fact that the claimant was a foreigner (XXVI, 252, December, 1867), or a 'See Mitchell v. Harmonv, 13 Howard, 115; United States v. Russell, 13 Wallace, 623; Parham r. The Justices, 9 Ga., 341; Griffin r. Wilcox, 21 Ind., 380; Clark v. Mitchell, 64 Mo., 567. ^United States r. Kussell, 13 Wallace, 630. In view of the great number of claims of " loyal " persons for compensation for property appropriated or destroyed during the civil war, Congress from time to time made special provision for the investigation and allowance of certain claims of this nature; — as by the act of July 4, 1864; the "Captured and Abandoned Property Act," of INIarch 12, 1863, authorizing the recov- ery of the proccfih of certain property seized and sold; and the act of March 3, 1871, s. 2, establishing the "Southern Claims Commission." ' As to the effect of the amendment by the act of Feb. 18, 1875, see 15 Opins. At. Gen., 35. * 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 12 Opins. At. Gen., 362, 497. 220 CLAIM. woman or noncombatant (XXI, 464:, Jane, 1866). or an eleemosj-nary corporation (XXX, 475, July, 1870), could not entitle the claim to be entertained, if it did not arise in a '-lovar' State. But held that the claims of officers or soldiers (as well as sutlers employed with the army) could not be debarred l)y the act, since such claims could not be said to have any locality of origin other than in the arm}^ itself. XXII, 177, May, 1866; XXIII, 485,^ May, 1867; XXIV, 495, April, 1867; XXVI, 62, Octoher, 1867; XXXIII, 523, JS^vemher, 1872. So held that the act did not preclude the entertaining of claims of "loyal" members of the Cherokee nation, for property taken for the use of the army in the territory occupied by such nation. XXX, 20, July, 1869. 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 dis- pensing indeed with the necessity of proving loyalty,^ but not other- wise modifying the status of the claim under the statute. XXVI, 160, jyove)nber, 1867: {!>.) That the term "quartermaster's stores" did not include rent, or the use and occupation of land or buildings, by the army.^ XVII, 599, Felruary, 1866; XVIII, 506, January, 1866; XIX, 428, Feh- rnary, 1866; XXVI, 51, Septemher, 1867; XXVIII, 159, Octoher, 1868; XXX, 433, 473, July, 1870; XXXIII, 127, July, 1872; XXXVII, 6, January, 1875. And held that a claim for rent, or dam- age 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, February, 1868); or though rent had in fact been paid by a military subordinate, through ignorance or mis- conception of the law, for a portion of the period of the occupation (XXVIII, 159, supra); or though a contract for rent had in fact been entered into, if such contract was not an express Avritten contract, duly approved and legally valid. ^ XXX, 434, Jwne, 1870. Held fur- ther that claims for cotton (XXVI, 247, Decemher,. 1867), and for lumber (XXVI, 331, Jannavy, 1868), seized in the enemy's country and used to strengthen fortifications could not be regarded as "quar- termaster's stores." And so Indd of liquors taken for the use of the medical department of the ai-niy in North Carolina, in 1865. XX, 568, April, 1866: (e.) That the term "proper officer" was not to be construed as intend- ^ United States v. Klein, 13 Wallace, 128; Armstrong v. United States, id., 154. ^See 12 Opins. At. Gen., 48(5, 488; also the joror/so, derived from the act of Feb. 21, 1867, added to Sees. 300 A., and 300 Ji., Rev. Sts. ^ And see Filor v. United States, 9 Wallace, 445. CLAIM. 221 ing necessarih' an officer of the Quartermaster or Subsistence Depart- ment, but that it proper!}^ included any commander or other officer warranted under the circumstances of the case in receiving or taking the stores. XXI, 79, November, 1865. {(I.) That the proviso — "if convinced * * * of the loyalty of the claimant," in connection with the rest of the statute, made the Quarter- master General or Commissary General of Subsistence, the exclusive jurlge on the question of loyalt}^ in each case. XXXI, 352, April, 1871. And held, further, that the act devolved the function, of examining and reporting upon the claims specified, on the Quarter- master General and Commissary General as public officials of the United States rather than in their military capacity; and that their action under the statute was therefore final and not subject to review b}^ a military superior or the Secretary of War. XXXVII, 554, 3Iay, 1870; XLIX, 328, Septerriber, 1885; 33, 235, June, 1889. {e.^ 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 militar}" use and actually used accordingly; thus, that claims for animals or other property taken for personal use or profit by soldiers, camp-followers, &c., could not be entertained under the act. XIX, 533, Mareh, 1866; XXI, 79, Novemher, 1865; XXIV, 503, May, 1867 ; XXVII, 166, September, 1868; XXVIII, 56, Aiigud, 1868. {/.) That the proviso at the end of the act (Rev. Sts. § 300 B.) author- izing the extension of its provisions to certain places included in the "States in rebellion," coukl not be extended to any localities not thus specified, or to parts of insurrectionary States excepted by proclama- tions of the President from the operation of certain special restrictions but not from the status of being in insurrection — as the parishes of Louisiana referred to in the proclamation of Jany. 1, 1863, or the port of New Orleans as affected by the proclamation of April 2, 1863. XVII, 607, Fehruary, 1866 ; XX, 399, 558, February and Ajyril, 1866; XXI, 243, February, 1866; XXII, 293, July, 1866; XXXVII, 5. 71. J'/n/((/-y and October, 1875. 778. ^Vhere certain cotton was accidentally destroyed by fire during the possession, by the militar}^ forces, of Mobile, Ala., in 1865, Jield that the owner was without legal claim against the United States. For injuries to, or destruction of, personal property, incidental to legiti- mate military operations in war, the Government is not responsible,^ and the settlement of such claims arising during the civil war was spe- 1 1 Opins. At. Gen., 255; U. S. r. Pacific Railroad, 120 T". S., 227, 239. 222 CLAIM. cially inhibited by the act of February 21, 1867, c. 57. LV, 328, January^ 1888. 779. A Spanish vessel was captured b}^ the army in the harbor of Ponce, Porto llico, at the time of the landing- of the IT. S. troops at that place, and was detained and used by the U. S. military authorities. The captain of the vessel subsequently made claim for damages on account of such detention and use. Held., that the claimant was not legally entitled to compensation for the seizure, use and detention of, or for damages to the vessel, as it was private property belonging to the enemy and seized in a hostile country by way of military necessity for the benefit of the army of the United States. Card 6046, March., 1899. 780. Where a claim was made by the owner for damage to a dwelling house "by a shell fired from an American warship on or about the fifth of July, 1898, during thp l)om])ardment" of Santiago, held, that the United States was not legally liable for the claim. ^ Card 5619, Janu- ary, 1899. 781. Claims for property taken from loyal citizens for the use of the Union army during the civil war were taken cognizance of by the Southern Claims Commission; iKit this commission by an act of June 15, 1878, was brought to an end March 10, 1880. Such claims, except in certain special cases, were excluded from the jurisdiction of the Court of Claims, and the general statute of six years' limitation would exclude from its jurisdiction any such claims accruing at dates prior to that period; nor has the Secretary of War authority to allow such claims. The onl}^ means of relief which could now be afi'orded in such cases would be by express legislation of Congress.^ 61, 468, October., 1893; Card 2764, Novemher, 1896. 782. Where a paymaster of the army seeks to be relieved from lia- bility for public funds stolen when in his charge, he should credit himself in his account current with the amount, and this credit being disallowed at the Treasure', he will have the recourse of an application for relief to the Court of Claims under Sec. 1059, Rev. Sts. It has been ruled by the Supreme Court ^ that, until the disbursing officer has been "held responsible" by the accounting officers, his right to have recourse to the Court of Claims docs not accrue. 51, 439, January., 1892. 783. The United States is not responsible for unlawful acts of its sol- diers or cn)ployees, and the Secretary of War is not empowered to allow a claim for personal property stolen or illegally appropriated by a sol- 'See U. S. V. Pacific R. R., 120 U. S., 227, and authorities cited. '' See Sec. 1059, Rev. Sts. , and act of Mar. 3, 1887 ( 24 Stats. , 505 ) . 3 U.S. I'. Clarke,96U. S.,37. CLAIM. 223 dier. LIII, 279, Ajrrl/, 18S7; 33, 165, J(/?ie, 1889. So held that the United States was not liable to a citizen for the value of timber cut on his land by soldiers, wrongf ull}" but in ig-norance that the land l)elonged to claimant, even though such soldiers were at the time engaged in the discharge of official duties. The remedy in such a case is a suit against the individuals who committed the trespass or an application for relief to Congress. 38, 319, FSruary, 1890. 784. It is well settled that the United States is not legally responsible for the torts of its officers or agents, whether of commission or omis- sion.^ Thus, where the claims were for personal injuries inflicted upon citizens by U. S. soldiers (Cards 5108, Octohei\ 1898; 6100^ March, 1899; 6586, 6642, June, 1899); for aid in supporting the wife and children of a citizen killed by a soldier (Card 5261, Xovemher, 1898); for damages on account of injuries resulting from accidental shooting of a citizen by a soldier (Cards 5260, Novemljer, 1898; 5983, March, 1899); for damages to railroad train equipment by soldiers travelling thereon (Card 51:o3, Decemher, 1898); for damages on ac- count of injury received while a contract nurse on a U. S. transpoil and due to alleged negligence of officials of the Government (Card 661:1, June, 1899); — held that the Government was not legally responsible.^ 785. Two native women of Porto Eico received gun shot wounds, the accidental result of a shot tired by a U. S. soldier who at the time lawfully tired the same while attempting to arrest another party; they submitted claims for damages. Held, that the United States was not legally liable therefor whether or not there was negligence on the part of the soldier. But as these claims were of a class for which Congress sometimes makes compensation, and as the military authorities were exercising all the powers of government in the Island of Porto Rico, advised that compensation for the injuries could legally be made from the revenues of the island. If made however in the form of an aniuiity it would remain operative during the continuance of the military gov- ernment only. Card 6612, June, 1899. 786. A soldier, though become by discharge a civilian, has no claim against the United States for pay. in the nature of damages, fo'- a ' Pitman v. U. S., 20 C. Cls., 255; Gibbons r. U. S., 8 Wall., 269; id., 7 Ct. Cls., 105: Morgan v. U. S., 14 AVall., 531. Judge Story in his work on agency, § 319, says: "It is plain that the Govern- ment itself is not responsible for the misfeasances or wrongs or negligences or omis- sions of duty of the subordinate officers or agents employed in the puljlic service; for it does not undertake to guarantee to any person the fidelity of any of the officers or agents whom it employs since that would involve it, in all its operations, in end- less embarra.ssments and difficulties and losses, which would be subversive of the public interests." - While tlie ( lovernment is not pecuniarily responsible for torts committed by offi- cers and enlisted men, the latter are so responsible and aside from their liability to civil suit may and sIiduUI in cases covered by the 54th A. AV. be proceeded against as required by "that article. 224 CLAIM. period during which, though innocent in fact, he was detained awaiting trial for a military offence and action on the proceedings. 42, 375, August, 1890. So, where a civilian, arrested on reasonable grounds of suspicion that he was a deserter from the military service, was detained in confinement at a military post till it was ascertained that he was not such, hid that he had no legal claim for damages against the United States. 43, 145, Odohti; 1890. 787. Where in the course of the transportation by railroad, at Govern- ment expense, of an officer's allowance of personal baggage, the boxes containing the same were broken into and a portion of the property was stolen, hdd that the remedy of the officer was against the railroad company, not against the United States. The United States does not make itself an insurer in such a case; nor can the officer require the United States to sue the company in damages, for this could be done only on the theory that the United States was responsible to the officer for the value of property lost by no fault or negligence of its own. XLIX, 572, Dtceriihtr, 1885. 788. A certificate of pay, as due on a final statement, was erroneously given by his commanding officer to a soldier, to whom there was in fact no pav due. The soldier endorsed the certificate for collection to a bank, l)y which it was endorsed for the same purpose to another bank. This bank presented it to a paymaster who paid it. On discovery of the error, the amount was stopped against the paymaster. The second bank then refunded to him the sum paid, and made claim for it upon the War Department. ILhl that such bank had no legal claim upon the United States, but that its recourse was properly against the first bank. 35, 447, Odoler, 1889. 789. Sec. 1304, Rev. Sts., applies only to claims for relief from accountability on the part of actual officers of the army, and cannot be extended to a case of such a claim made by a person formerly in the army but long become a civilian. 65, 137, May^ 189^. 790. Where a claim was made for compensation for time, cost, and expenses incurred in going from Brooklyn, N. Y., to Governor's Island, N. Y., to collect fees due as a civilian witness before a court- martial, JieJd ih'At there was no provision of law for the paj^ment of such a claim. Card 1S(»7. Xoremhei\ 1896. 791. There is no law authoii/.ing the Executive department of the Government to pay claims for damages on account of injuries received b}' persons employed in the construction of public ])uildings, or in river and harbor improvements, and in the absence of such a statute the Executive department is Avithout power to pa}^ them. Cards 306, Sqjtemher, 189.'^; 2082, Fruanj, 1896. CLAIM. 225 792. A joint re.solutiou of Congress approved Feb. 23, 18S7, provides ""that all per diem employes of the Government on dut}" at Washing- ton or elsewhere shall be allowed the da}^ of each year which is cele- brated as 'memoriar or 'Decoration Day,' and the Fourth of July of each year, as holiday and shall receive the same pa}" as on other da3^s." A per diem emploj'^e of the Government at West Point, N. Y., having been refused pay for the Fourth of July, submitted a claim therefor. lidd^ that under the joint resolution quoted, the claim was a valid one, that the resolution was not limited as to place to the cit}^ of W^ashing- ton nor as to per diem employes to permanent ones. 61, 125, August, 189S. 793. An officer stored his household effects in a Quartermaster store- house at W^ashington Barracks, D. C, and while so stored a portion of the property valued at $850 was stolen. Held, on a claim for reim- bursement, that the United States was not legally responsible for the loss. Card 6690, July, 1899. 794. V/here a claim was made by a citizen of the United States for the apprehension of a deserter on Mexican soil, held that the claim should not be entertained on the ground that the arrest was an illegal one, and that an act done in violation of law can not be made the basis of a legal claim. ^ 23, 140, March, 1888. 795. A claim was made against the United States hy an attorney for services rendered as counsel for an accused officer in a court- martial trial. Held that the claim was without merit as against the United States, and that the Government had nothing whatever to do with its payment. 32, 1()5, 2I(n/, 1899. 796. A contract nurse who lost private property by the sinking of a U. S. hospital ship submitted a claim for the amount of the loss. Held, that such claims could not be paid by the War Depai'tment without special authority from Congress; and if it was desired to pay them, legislation authorizing it should be obtained. Card 5215, Novem- her, 1898. 797. The board of animal inspectors at Honolulu, appointed under a statute of Hawaii, submitted a claim for inspecting cavalry horses and di-aft mules of the United States, amounting to the statutory fee. Held that the claim was in effect a tax by the Territory of Hawaii on the operations of the Government of the United States; that the instru- UKMitalities and agencies of such government are exempt from local taxation; and that therefore the claim could not legally be paid. Card 6554, December, 1898. iSee Clay v. U. S., Devereux (Ct. Cls.), p. 26. 16906—01 15 226 CLERK OF WAR DEPARTMENT. CLERK— FOR COURT MARTIAL. 798. A court niartiiil, member of court, or judge-advocate cannot of course lawfully communicate to a reporter or clerk, b}^ allowing him to record the same or otherwise, the finding or sentence of the court. Before proceeding to deliberate upon its rinding, the court should require the reporter or clerk, if it has one, to withdraw. But the fact that the finding or sentence, or l)oth, may have lieen made known to the reporter or clerk of a court martial, cannot affect the \'alidity of its proceedings or sentence.^ V, 478, December, 1863; XI, 318, Decemher, 1861^; XXVIII, 146, Octoher, 1868; XLII, 218, March, 1879. 799. JLId that a claim by an officer to be allowed extra compensa- tion for services rendered by him as clerk to a general court martial of which he was the junior member, was whoU}^ without sanction in law or regulation. XXII, 578, Fehriiary, 1867. CLERK— OF WAR DEPARTMENT. 800. Under the provision of sec. 4 of the act of March 3, 1883, relat- ing to absences of clerks of the departments, such a clerk, when absent without leave, whether sick or well, forfeited his pay for the period of absence. Where a clerk of the War Department, who had been absent without leave, produced, to account for his absence, a surgeon's certificate, Jiehl ih^i such certificate did not ^>e'r .S(? operate to restore pay, ))ut that it was in the discretion of the Secretar}' of War to accept or not such certificate and ratify the absence as authorized; that luiless he should do so the pay would remain forfeited. 57, 231, JdjiiKiry, 1893. 801. Under the act of March 3, 1893, a sick leave with pay can be granted to a clei-k of a department on account of the illness of a mem- ber of his family, only when such member is "afflicted with a conta- gious disease and requires his care and attention." Where the disease is not in fact contagious, such leave can not legally be allowed. 62, 12, Oct<}t}ei\ 1893. 802. ITiider the provision of the act of March 3, 1893, c. 2111, to the effect that ''all employees provided for, by this paragraph, for the Record and Pension Bureau of tlie War De})artment, shall ])e exclu- sively engaged on the work of this ofiice for the fiscal year eighteen hundred and ninety-four" — held that a clerk of that ofiice coidd not during such period legally be detailed for dutj' with the Civil Service Commission. 59, 9, April.^ 1893. 'There is no authority for the employment of a civilian clerk for a court martial, other than the ^^ reporter'" authorized by 8ec. 1203, Rev. Sts., and referred to in par?^. 958 and 9r>9, A. R. {10(>2 and ]m:\ of 1901 ). An enlisted man may be detailed a.s .such clerk under par. 958. CLERK OF WAR DEPARTMENT. 227 803. Sec. 7 of the at-t of March 15, 1898, provides that the head of an}^ Department may grant thirty days' leave with pay in any one year to each clerk or employee, and also that, in exceptional and meritori- ous case: , where a clerk or employee is personally' ill, and where to limit the annual leave to thirty days would work peculiar hardship, the leave ma}" be extended with pav not exceeding- thirty days. In a later act (July 7, 1898) it was provided that nothing contained in the said section of the act of March 15th, shall be construed to prevent the head of the Department from granting thirty days annual leave with pay to a clerk or employee, notwithstanding the clerk or employee may have had not exceeding thirty days leave with pa}" on account of sickness. Held that construing these two acts together, they reesta})lish the old and simple law and custom of the Department to the effect that the Secretary of War may (through the heads of bureaus or personal!}") grant to each clerk and employee during each year thirty days leave with pay (called in the statutes '* annual leave"'), and in addition thereto, during the same period, a leave with pay not to exceed thirty days, if during such time the clerk or employee is compelled liy per- sonal illness to be absent.^ Sixty days leave with pay is all that may ))e granted in any one year. Thus where a clerk has been absent sick thirty nine days and had drawn pay therefor, held that he could be allowed twenty one days leave with pay during the remainder of the year, but no more. Card 4694, July^ 1898. 804. Where an application was made for the detail of a clerk on duty in the War Department, to instruct the battalion of cadets of the Washington High School six hours each week, without deduction of time or pay being made against him, held that the Secretary of War. in the absence of a statute authorizing such a detail, was without power to make it. 45, 495, March., 1891. 805. A clerk was discharged for cause from the Record and Pension Office. He sulisequently asked to be permitted to resign as of the date the records showed he was discharged. Held that a discharge which has been carried into effect cannot be revoked, that to substi- tute a permission to resign for such executed discharge would be to substitute something that did not happen for what actually happened and therefore to make a false record. Card 3976, March, 1898. 806. JLld that there was no authority of law for granting to a clerk in the Record and Pension Office an indefinite leave of absence without pay, to cover his absence as an officer of IT. S. volunteers. Card 4129, May. 1898. 807. A clerk in the employ of the Government, who is also a notary pul)lic, is not precluded by reason of his employment as such clerk, ' See circularn, War Department, dated Dec. 2 and 3, 1898. 228 CLERK MISCELLANEOUS. from receiving- the statutory fees from parties wlio may secure his services as notary in the execution of contracts with the Government. Card 167, August, ISQJf,. CLERK— MISCELLANEOUS. 808. The appropriation act approved August 6, 1894: provides expressly that the clerlvs and messengerij provided for by it ' ' shall be employed and apportioned to the several headquarters and stations by the Secretary of War.-' ITtld that they are each tb be employed by the Secretarv of War at a particular specitied salary and that depart- ment commanders have no power to discharge any of them or to increase or reduce their salaries. Card 380, Septemhei\ 189Jf.. 809. Clerks and messengers employed under the act of Congress approved August 6, 1894, when travelling under orders should be given the transportation, subsistence etc., authorized l)y the Army Regulations to be given civil emploj^ees when traveling under orders. Card 526, October, 189^. 810. Par. 1252, A. R,, provides that ""when the circumstances of their service make it necessary, civilians emploj-ed with the armj^ may each be allowed one ration per day." Held that clerks at the head- quarters of military departments while on duty w4th the arm}- in the field, may if "the circumstances of their service make it necessary" be allowed a daily ration under this regulation. Cards 4190, 4385, May and June, 189S. (See A. R. 1378 of 1901.) 811. A clerk appointed under the act of Congress, approved August 6, 1894, is not eligible under existing law and regulations for appoint- ment as a post non-commissioned staff officer. Card 2034. Fehruary, 1896. 812. There is no authority for paying the clerks of the Ordnance Department engaged outside of the War Department proper — at arsiMials away from Washington — for time spent on either ordinary or sick leave of absence, the law allowing clerks leave of absence with pay not l)eing applicable to them. Card 3793, Jdnnary^ 1898. 813. There is no precedent for allowing the traveling and other legiti- mate expenses of the personal clerk of an officer ordered before a court of inquiry. If he be a material witness he may of course be sub- pcenaed as such and be paid the legal witness fees. 57, 196, Jan uary, 189.}. 814. Transportation requests were issued by the Quartermaster De})artnient to five postal clerks, also re(iuests for one double berth each in sleeping car, from Washington, D. C, to Tampa, Fla., on a verbal order from the Assistant Secretarv of War. the nature of the CLOTHING ALLOWANCE. 229 journey being "for dut}' with troops in the field." Held that the accounts could legally lie paid from the appropriation for army trans- portation. Card 0927, S<'pteinhe)\ 1899. 815. Held that the clerks in the Quartermaster Department who, in • 1862, were employed as an armed force to protect public property at Washington and to assist in its defence, were not in the military serv- ice proper but remained civilians. The mere fact, therefore, that the}^ served till their service was no longer required, did not, at the end of that time, place them in the status of being "honorably discharged" in the sense of the civil service rules regulating appointments to civil office. 35, 371, October, 1889. CLOTHING ALLOWANCE. 816. A sentence forfeiting ''pa}- and allowances" for a certain period does not affect the right of the soldier to receive the necessary cloth- ing during such period. It is supplied under A. R. 1294 (1193 of 1895; 1317 of 1901). XXIX, 591, January, 1870; 62, 211, Mvemher, 1893. 817. A soldier is not entitled to be credited in his clothing account with the value of clothing lost by fire or other casualty. This can be made good to him only through the reimbursement authorized by the act of March 3, 1885. 63, 278, January, 189^. 818. Pa}' and allowances are given to a soldier because he earns them or is, without fault on his part and by circumstances not within his control, prevented from doing so; and when pay is withheld from him for the reason that he (by his own fault) failed to earn it, his clothing allowance should be withheld for the same reason. Thus held that a soldier absent without leave by his own fault, or in the hands of the civil authorities serving sentence of a civil court, should not be allowed either pa}" or clothing allowance for the period of such unauthorized absence from duty. Card 2010, Fehruary, 1896. 819. A soldier was sentenced "to be confined at hard labor with for- feiture of all pay and allowances for six months " and while serving such sentence he drew clothing to the value of about thirty dollars which amount was charged against his clothing allowance accruing prioi" and subsequently to the period of confinement. Held that he forfeited his clothing allowance during the period of confinement under the terms of the sentence, and that it was proper to charge the same against him as stated. This is understood to accord with the practice in such cases. Card 1525, July, 1895. 820. Where a soldier was sentenced to dishonorable discharge "forfeiting all pay due or to become due," held that his right to clothing allowance, if there was any due him at date of discharge, 230 CLOTHING ALLOWANCE. was wholly unaffected bv the sentence; "allowances" being distinct from ''pay.-'' XLIX, 520, Deceinher^ 1885. 821. The Army Appropriation Act for the year ending June 30, 18t'6, made the usual appropriation ""for cloth, woolen material and for the manufacture of clothing for the army; for issue and sale at cost price according to the Army Regulations." Par. 1193, A. R. (131Tof 1901), prescribes that commanding officers may order necessary issues of cloth- ing to military prisoners who have no clothing allowance from desert- ers or other damaged clothing or from clothing speciallj^ provided for the purpose. Damaged clothing and clothing specially provided would be unissued clothing purchased from the appropriation for clothing, camp and garrison equipage. This paragraph of the regulations (which is in effect a repetition of par. 1291, A. R. ,of 1889) should be accepted as an authoritative construction of that part of the appropri- ation act relating to clothing, etc., to the effect that the word " army", as used therein, includes general prisoners. Held therefore that the Secretary of War could legally authorize issues of overcoats, arctic overshoes, woolen mittens and flannel shirts to general prisoners,^ as a charge against the appropriation for clothing of the army. Card 20.57, 2farch, 1896. 822. Ileldihsit the provision in an army appropriation act " for a suit of citizen's outer clothing * * * to be issued upon release from confinement to each prisoner who has been confined unclei a court-martial sentence involving dishonorable discharge," dia not apph' where the sentence of the court adjudged dishonorable dis charge without any term of confinement. Card '2925, I^eh'ua/'y.i 1897. 823. Circular 57, A. G. O., 1898, provides that " whenever articles of clothing of enlisted men have been destroyed to prevent contagion a gratuitous issue of such articles of clothing will be made to the enlisted men to whom such clothing belonged upon the certificate of the officer who has personal knowledge of the facts." Held that there was no provision for paying for the clothing destroj^ed, in lieu of the gratui- tous issue authorized. Card 5588, January, 1899. 824. Clothing issued to a soldier and charged to his clothing account, becomes his personal property subject to its use in the military serv- ice and ceases to be an allowance subject to forfeiture. But such clothing found and turned in to the ciuartermaster after the soldier's desertion, should be considered as having been aljandoned and become again the property of the United States. Card 3251, June., 1897. 825. A soldier discharged without honor does not b}^ reason of such ' Pee Circular 5, A. G. O., 1896, aiithoriziiig such ist^uew to be made under par. 1193, A. K. (lM17(hruary, 1878. 858. Where, by an express stipulation in a contract for quarter- master stores, made in accordance with a specific advertisement, the time within which the same were to be furnished to and received by the United States, was limited to a stated period, Ji<:'Id that the Secre- tary of War would not be authorized to extend the operation of the contract beyond that period, so as to admit the delivery of additional stores under the same, but 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, May, 1875. And held that the fact that the contract contained a stipulation to the effect that the same might upon mutual agreement be abrogated, modified, or extended, did not add to the authorit}' of the Secretary in such a case; such a stipulation being in derogation of law.^ XXXVII, 478, AjrrH. 1876; XXXIX, 654, Septeivler, 1878; XLI, 182, April, 1878. 859. The Army Appropriation Act for the year ending June 30, 1895, provided that open market purchases could be made when the aggregate amount required did not exceed two hundred dollars, but lower offers than were received might not have been made. It may well be that a manufacturer may not be in a condition to deliver at one time, and yet be fully cap- al)le of doing .so at anotlier; and that, whilst he would be restrained by this inability from competing for a contract within the time limited by the proposals, he might have successfully done so had the extended time been advertised." See, also, 7 Comj). Dec. , 92, 95. ^ See note to § 8.56, anie. '■^In a case of a contract in thq Post Office Department, containing a stipulation for extension, kc, ))y the authority of which the operation of the contract had been extended beyond the period exj)ressly limited therein, although by a statute govern- ing the case it was required that all such contracts should l)e made n}K)n advertise- ment, pro])o.«als, &c., it was held l)y Attorney General Hoar {\?> Opins., 174) as follows: — "I am of the opinion that the provisions of that statute apply to the con- tract in question, and that, altliough the contract contained a provision for its extension and modification at the pleasure of the contracting jjarties, such a provision was not authorized by law. If a contract, which the law only allow.s to be made in pursuance of an advertisement, could afterward be renewed and extended at the pleasure of the Postmaster General without any advertisement, it would be in the power of that officer and his successors in office, unless restrained by some subse- quent act of the legislature, to make for all future time such contractVi as he might think expedient, without reference to the conditions contained in the original advertisement for proposals, or to the terms upon which the contract was offered to public competition." CONTRACT. 243 that every such purchttso should be immediately reported to the Sec- retary of War.^ On the question as to the powers and duties of the Secretary of War in reference to the class of purchases referred to, held that this legislation considered in connection with Sections 216 and 1164, Rev. Sts.. and the fact that the Secretary of War is the representative of the President, vests in the Secretary the power and the duty to make necessary regulations to carry into effect the legisla- tion in question and in doing so he ma}" legally require proposed open market purchases to be submitted for his approval. Card 1112, March, 1S95. 860. Contracts ''for personal services," specially excepted by the statute — Sec. 3709, Rev. Sts. — from the application of the provision as to advertising for proposals, are contracts for services to be rendered in person by the party or parties who contract to furnish them whether the character of the services are skilled or not.^ So Jiehi that services of physician, services of washerwomen, services in repairing mat- tresses, bedsteads, clocks, chairs, etc., and in hauling rubbish, etc., if to be rendered in person by those who contract to perform them are "personal services" within the meaning of this section. Card 653, November^ ISOIf.. 861. Sec. 3709, Rev. Sts. , requires that when contracts are made for supplies or services, they shall l)e luade in a certain form, ])ut it does not necessarih" preclude having public work performed by hired laborers where it is not deemed desirable to enter into a formal agreement with a contractor for the purpose. So hAd that the Secretary of War, under whose direction the appropriations for the construction of the new State, War and Navy Building were required by statute to be expended, was empowered to cause the plastering, or other particular work therein capable of being pioperlv done bv hired day labor, to be so done, ^ This provision was repeated in the Army Appropriation Act, approved Mar. 15, 1898 (30 Stats., 322); but see the later legislation in the corresponding act, approved March 2, 1901. ^In an opinion of Attorney General Bates, dated May 23, 1862 (10 Opins., 261), it was held that a contract for surveying reservation lands under a treaty with the Indians was "personal services" within the mestning of Section 10 of the act of ]\Iarch 2, 1861 (12 Stats., 220), now embodied in Sec. 3709, R. S. — the reason assigned lieing that the services required not only fidelity and integrity but a certain kind of skill and knowledge, and that the contracting officer should have discretion in select- ing those who possess the required qualifications. In later opinions, however, "per- sonal services," as used in Sec. 3709, R. S., are held to include services to be rendered in person bv the partv contracted with, who thus becomes a servant of the Govern- ment. (15'Opins. At. Gen., 235, 253; 19 /(/., 96.) In 6 Comp. Dec, 314, the term "personal services," as used in this section, is defined as services to be "performed ])y a. single person, or by firms, for the Government, under a contract made with the Government to render for it, his, or their individual services, of either skilled or unskilled laI)or, under tlie direction of the Government, thereby becoming the ser- vant of the Government in the performance of such labor." See, also. Par. 518, A, R. of 1895 (596 of 1901). 244 OONTKACT. instead of under contract made upon advertisement and proposals, provided he deemed it to be for the public interest to prefer the former mode. XLl, 121, FSruary, 1878. 862. IMd that the purchase of the gray cloth used for the uniforms of the cadets of the Military Academy was not a "purchase of sup- plies in the War Department,*' in the sense of Sec. 3709, Rev. Sts., and was therefore not required to be made by advertising. This Section has apparently in view purchases of supplies for the uses and purposes of the United States, under appropriations made specifically for such supplies or clearly applicable to them and expended as pul)lic funds under the control and direction of the head of the War Department. The cadet clothing is purchased not as "supplies" for the army in general but for the special use of a particular class of persons, and is paid for, not out of an appropriation for the militar}^ establishment, but out of their monthly pay. The continued usage of a department in regard to an}' transaction is an important factor in the construction of the law relating thereto/ and for upwards of fifty years the cloth- ing in question has been purchased in open market, from a particular mills company. Advised that such usage might be continued without contravention of existing law. 48, 198, July., 1891. 863. Sec. 3 of the act of Aug. 11, 1888, in providing- that when river and harl)or works are done by contract, the contract shall be made after sufficient advertisement. &c., does not, like Sec. 3709, R. S., except cases of emergency, 1)ut it may be and is in practice construed to permit sucii contracts to be made without advertising in cases of emergency. Card 5279, Nnvenil>ei\ 1898. 864. The act of March 15, 1898 (30 Stats., 322), which authorizes "open market" purchases not exceeding $200, relates to supplies for the army and does not apply to purchases for carrying on works of river and hai'bor improvement; l)ut by sec. 3, of the act of Aug. 11, 1888 (25 Stat.. 423), it is made the duty of the Secretary of War to apply the mone}' appr()])riate(l for such improvement "in carrying on the various works, ])y contract or otherwise, as may be most economical and advantageous to the (TOvernnuMit."'' This provision might l)e con- strued as leaving the purchsises of supplies and the engagement of services necessar}' in carrying on the works, otherwise than by contract, to be controlled by Sec. 37 or not, and engagement of services not personal, could only l)e made witiiout advertisement in cases of emer- genc}'. In jji'actiee however it has been construed as dispensing with 1 2 Opins. At. Gen., 558; 4 id., 467, 470; 10 id., 52. CONTRACT. 245 advertisement where it would be mo.st economical and advantageous to the Government to do so. Card 7315, Noveiiiber 18^ 1899. 865. Where, pursuant to Sec. 3709, Rev. Sts., advertisement has been once duly made, the law has been complied with. If this adver- tisement is without result, it is not necessary (though it is permissible) to advertise again, or to go on advertising till an acceptable proposal be received, but open market purchase may be resorted to. 62, 494, Decertibei\ 1893. Card 9036, September, 1900. In the latter case how- ever, the purchase must be limited to the article or articles previously advertised for. Card 313, Odoler, 189^. See Card 8198, 21id is accepted, will * * * give bond with good and sufficient sureties to furnish the supplies i)roposed," saiil: "Strictly construed, this does not prevent a withdrawal before acceptance. Liber- ally construed, in conformity with the manifest intent of the jirovision, I think it may fairly be held that it binds the l)idder to stand by his bid, at leastafter the hour of opening. The case l)eing doul)tful, I am iui'Hned to give a liberal construction to the statute, since in this way only can its authoritative constnictiou be o])taim'd from the courts. 1 would therefore advise that Mr. Neville be held to his i)roposal, and that no right of withdrawal on his part be recognized, but that he and his guarantors be held responsible." See, also, par. 538, A. K. of 1895 (616 of 1901). CONTRACT. 247 der or his agent, and that the United States was in no way responsible for it; that it was not a mutual error or one which entered into the terms of the contract so as to prevent the agreement on the same thing; and that under the circumstances stated the bidder was not legally entitled to relief / Card 54:62, Uecember, 1898. 872. Proposals for supplying the Government 25000 mosquito bars were opened on June 20, 1899. The lowest and next lowest bids (from the same place of business) were respectively 45i and -lei cents per l)ar. On the day following the opening these bidders claimed that errors were made in copying their bids into the blank proposals, referring to their original memoranda to show that the price intended in one was 75i cents, and in the other 76i cents, and asked to have the correc- tions made. To grant the request would make another party the low- est bidder at 67i cents per l)ar. ILId that if the errors occurred as claimed the mistakes were such as to exclude consent to the same thing, so that on acceptance of the bid there would be no true contract — one party intending one thing, and the other party ar other thing; that therefore the proposals containing the erroneous prices should not be treated as binding upon the parties making them.^ Card 6802, July^i 1899. Similarly Jield where a company submitted a proposal, inter alia, for furnishing 48 hand cutfs the price for the lot being |>17.90, but before the award was made had stated that they had intended to bid $179, and that the error was a clerical one, it further appearing that the next lowest bid was $150. Card 5958, March, 1899. 873. Par. 645, A. R. (533 of 1895; 611 of 1901), does not absolutely require guaranties in all cases, but when they are required and it is announced that no proposal will be considered unless accompanied by a guaranty, to accept a l)id unaccompanied by a guaranty, while not ^ If one party only acts under a mistake, and the other is in no degree responsible for it, the contract is ordinarily valid, the former being estopped to set up the mistake as against the latter. Bishop on Contracts, § 701. In an opinion dated June 1, 1895 (21 Opins., 186), Attorney General Olney held that after a bid had been accepted, "the bidders have no right to withdraw their proposal merely because of a mistake on their part which was not mutual and which was due to their negligence," the mistake being two errors in calculation, making a difference of $6000 in the result. ^ In Pollock on Contracts, under the head of "mistake as excluding true consent", it is stated that — " It may happen that each party meant something, it may be a per- fectly understood and definite thing, but not the same thing which the other meant. Thus their minds never met, as is not uncommonly said, and the forms they have gone through are inoperative;" and that in this "class of cases either one party or both may be in error, however that which prevents any contract from being formed is not the existence of error but the want of true consent." Wald's Pollock on Con- tracts, 1885, pp. 411,412. Under date of Jan. 14, 1891, Attorney General Miller (20 Opins., 1) held where an advertisement was made for proposals for installing an electric light plant, and one of the bids was $4350, and the bidder asked to withdraw the bid, claiming that it had been made erroneously instead of $9350, the real l)id, "that if the fact be that the bid was made under a mistake of fact, it is no bid at all, and ought not to be considered; that if accepted it would not be binding on " the bidder. 248 CONTRACT. affecting the validity of such acceptance, would not be acting in good faith. Card 261, September, lS9Jf. 874. In March, lS9-i, proposals were invited for four contemplated river improvements. The lowest bid for one of the works was accepted and contract entered into, but no action on the proposals for the other three was taken at that time. Subsequently, after the expiration of the period named in the guaranties which accompanied the proposals, the acceptance of the lowest bids in two of the cases was recommended by the Chief of Engineers, Bemarl'ed that there was no legal objec- tion to such acceptance provided the bidders to whom it was proposed to award the contracts were willing to enter into the same; their consent Ijeing necessary as their guaranties were no longer operative. Card 371, Septemher, 1894. 875. Where, at the end of the ten days specified in his guaranty, the accepted bidder had failed to enter into the contract, held that the liability of the guarantors had attached, and that, the public interests not being prejudiced, the contract might legalh^ be entered into with one of the guarantors, as an open market transaction in which he takes the risk on his own account at the rate proposed in the bid. 32, 188, Mn/, 1889. 876. The Secretarj^ of War is without power to release a guarantor from the obligations he has assumed in a guaranty accompanying a proposal. The only duty of the Secretary respecting such guaranty is to turn it over to the proper officers of the government for enforce- ment, in case the contractor makes default. Cards 3-489, Septemher, 1897; 5-462, Decemher, 1898. 877. Far. 533 A. R. (611 of 1901), requiring guaranties to accom- pany proposals in the cases named therein, is a regulation prescribed pursuant to and in aid of a statute, the act of Congress, approved April 10, 1878, as amended by the act, approved March 3, 1883. Such a regulation is as binding upon the authority that made it as upon others.^ So where a guaranty was required to accompany the proposal, and none was furnished, /'I'M that the omission was not an irregularity which could be waived ])y the Secretary of AVar. Card 2860, January, 1897. But while the entering into a contract under such circumstances would be a violation of the regulation, the contract itself w^ould never- theless be valid, the regulation being viewed as directory onh\ Cards 6285, April, 1899; 7613, January, 1900; 7956, A2jr!l, 1900. 878. A lowest bidder failed to furnish a guaranty, one for five hun- dred dollars being specifically reijuired in the instructions to bidders, but submitted his certified check, adding to his proposal and signing >TJ. S. V. Barrows, et nl, 1 Abbott, 351 (No. 14,529, Federal Cases.) CONTRACT, 249 the following statement: "In lieu of above we submit certified check to the amount of guarantee."" The instructions specitied the terms to be embodied in the guaranty and the certified check was submitted in lieu of such guaranty. It could therefore be applied to secure the United States under the conditions specified and should be treated as a substantial compliance with the provisions of A. R. 533. Card 7013, January^ 1900. 879. Sec. 3744, Rev. Sts., prescribes that "It shall be the duty of the Secretary of AVar, of the Secretary of the Nav3% and of the Secre- tary of the Interior, to cause and require ever}- contract made by them severallv on behalf of the Government, or by their officers under them appointed to make such contracts, to be reduced to writing, and signed by the contracting parties with their names at the end thereof." Were it not for the provisions of this section the acceptance of a bid would, under the general law of contracts, bind the United States. But this section has been construed bv the Supreme Court as being in the nature of a statute of frauds and mandatory in its requirements, and therefore makiiig it essential that a contract, to be legal and oblig- atory, shall be in writing and signed by the parties.^ The mere pro- posal of a bidder, accepted on the part of the Government, does not therefore operate as a contract l)ut is simply a proceeding preliminar}^ to contract; nor does such an acceptance bind the United States to enter into a contract. 56, 87, 355, October and Hoveiuher, 1802; 60, 315, July, 1S9S; 64, 379, Aj)ril, 189J^; 65, 378, July, ISOJf.. 880. Par. 549, A. R. (C27 of 1901), provides three methods of purchas- ing supplies, etc., to wit: 1, "By contract 'reduced to writing and signed 1 Clark r. U. S. ,95 U. S. , 539 ; Salomon v. U. S. , 19 Wall. , 17 ; South Boston Iron Company r. U. S.,118U. S.,37, 42; 18 Court Claims, 165; Lindsley's case, 4 *'(/., 359; Jones' case, 11 id., 733; Steele v. U. S., 19 id., 181 ; International Contracting Company v. Lamont, 2 Appeal Cases, D. C\, 532; 3 Comp. Dec, 368; 4 id., 680; 5 id., 246, 588, 826; (Md., 880. But where a contract not made as required by the statute has been wholly or par- tially executed, the party performing will be entitled to the fair value of the j^roperty or services furnished as ui)on an implied or quasi contract for a qitantum meruit. Clark V. U. ^., supra; 4 Comp. Dec, 680; 5 /(?., 588, 826; 6 id., 553. In the absence of other evidence, the amount agreed upon will be assumed to be the fair value of the property cr services. 4 Comp. Dec, 680; 6 id., 553, 951. In the case of the South Boston Iron Company, supra, the company had offered bj^ letter to the Secretary of the Navy to construct certain boilers and the offer had been accepted by letter, but the acceptance had subsequently been withdrawn. The Supreme Court held that the letters did not constitute a contract under the provisions of Sec. 3744, Rev. Sts., the court remarking that they were nothing more than pre- liminary nienu)randa made by the parties in preparing a contract for execution in the form rcMjuired by law. ]n the case of the" International Contracting Company r. Lamont, supra, the com- pany A\as the lowest bidder for certain work; its proposal was approved and recom- meiideil for ai-teptunce l)y the local engineer othcer, was approve«l an(l authorized to be accepted by the Chief of Engineers, and the company was so notified. But the Secretary of "War declined to ai)]irove tlie bid and ordered its rejection. The court held that in vie»v of the requirements of Sec. 3744, Rev. Sts., no contract had been entered into. 250 CONTRACT. )\v the contracting parties with their names at the end thereof;'" 2, ''by written proposal and written acceptance;" and 3, "b}^ oral agree- ment." This paragraph further provides that "when delivery or per- formance does not innnediately follow an award or bargain, the first method will be used," i. e.^ "by contract reduced to w^riting," etc. ; and that "when delivery or performance immediately follows an award or bargain, the second method may be resorted to." The first method constitutes a contract under Sec. 3744, K. S. , but the second (proposal and acceptance) does not.^ The regulation permits the second method to be used when the material is to be deli^'ered at the time the bargain is made, because in that case it is not necessar}^ to bind any one, but requires the first method to be used in cases where the deliver}^ is to be made in the future, because in these cases it is necessary to bind the parties, and this cannot be done except by "contract reduced to writ- ing," etc. Card 5275, Xovemler, 189S. Thus where proposals for fresh meat for one year for the use of government employes had been invited and received, it was held that under this statute and A. R., 549, supra, based thereon, to accept the lowest bid as an informal agree- ment would not bo l)inding on the parties; the case being one where the agreement should be "reduced to writing and signed by the con- tracting parties with their names at the end thereof.'' Card 2074, Febmary and March ^ 189G. 881. Owing to the fact that an improper plane had been taken for several years as the average flood tide in the matter of measuring the depth to be maintained at the South Pass, La., by the James B. Eades estate, certain moneys to which the estate was lawfully entitled had been withheld from it. The executors of the estate, while claiming the right to be paid all amounts so withheld, proposed to waive their right to all that accrued prior to Jan. 1 , 1895, if the Secretary of War woidd authorize paynuMit of the amounts withheld since that date. The Secretary of War accepted the proposal. Held., that the letters of the executors proposing the compromise and expressing satisfac- tion with tht^ Secretary of War's acceptance did not constitute a sufla- cient waiver of all claims against the United States for the years prior to Jan. 1, 1895. The letters and indorsements relating to the waiver constitute under Sec. 3744, Kev. Sts., only preliminary negotiations. To legall}" bind both parties to the agreement reached, it should l)e reduced to writing and signed as required ])y that statute. Card 2116 March, 189G. 882. Where a lease was made for one year with a provision for renewal from year to year for several years, at the option of the United ^ See note to § 879, ayite; also, 1 Comp. Dec, 264. CONTRACT. 251 States, it was held that in view of See. 3744, Rev. Sts., as construed by the ^J. S. Supreme Court, written notice of the renewal with an indorsement thereon of acceptance bv the lessor would not be a binding- contract; but advised that a brief contract referring to the original lease in a way to identify it and providing for the renewal for the succeeding fiscal year, and signed by the proper oflicer on behalf of the United Stales and the lessor with their names at the end thereof, would comply with the requirements of the statute. Such a contract could be made at the beginning of each fiscal 3'ear during the term named in the original lease. Card 7214, Octoher, 1899. 883. A party orally offered on the 30th of May, 1S98, to deliver at St. Louis, Mo., to the quartermaster there, 700 draft mules within ten days after receipt of an order to deliver them; the mules to be in proper condition and subject to inspection. On the 2d of June follow- ing, the quartermaster gave an order for the full number. No written contract had been entered into by the parties, and neither party had contemplated entering into one. Fovir days after making the order for the delivery and before any mules had been delivered, the quarter- master bj^ direction of the quartermaster general cancelled the order. Iltld that as there was no written contract, the Government was not legally liable for its failure to take the mules. Card 5102, Octoher, 1898. 884. In April, 1898, when extraordinary efforts were being made to mine a harbor for defence against possible attack, the local engineer officer ordered from an electric company by letter a large quantity of leaded cable which the company promised l)y letter to furnish and deliver at the place needed. No formal written contract was made. The cable had not arrived at the time it was needed and the officer thereupon purchased the amount he required from other parties. Subsequenth' the cable first ordered arrived, but too late to be used, and was returned, the government paying freight charges both waj^s. Held., that the Government was under no legal obligation to accept and pay for the cable, the agreement made not having been reduced to writ- ing, &c. , as required by Sec. 3744, Rev. Sts. Card 5275, Novemher., 1898. 885. Where the lowest l)idder for a dredging contract proposed to use a dredging machine which had become the subject of a suit against the party for infringement of a patent, advised that if deemed proper to accept the bid and enter into a contract, a clause should be required to the effect that in the (n'cnt of any legal proceedings by other par- ties against the United States or any of its officers or agents for the infringement of any patent or claimed patent, during the execution of the work, or afterward, the contractor shall hold the United States harmless and refund to it all expenses, damages and outlays of every 252 CONTRACT. kind it may be subjected to on account of the same. And that if said proceedings tend to create delay in the execution of the work, the United States shall have the right to immediately employ other parties to complete the same, the contractor to reimburse the United States for any extra amount it may have to pay for such completion over and above the amount which the contractor would have been entitled to for the same work. Card 725, Decemher, 189Jf.. 886. Under Sees. 3679, 3732 and 3733, Rev. Sts., public contracts for supplies, &c., for which money has been appropriated by Congress, cannot legally be made to extend beyond the fiscal 3'ear for which the appropriations have been provided, or to bind the government to the pa3"ment of any sum or sums not embraced in such appropriations. XXXI, 40, Nove7nber, 1870; 392, 3fay, 1871. Military contracts (including leases) will thus, where practicable, properly' be made to run concurrently with the fiscal j'ear in or for which the}" were made.' XXXV, 613, OctoT)ei\ 1871t.. So held that a contract of lease made for a term of j^ears (as three, five, or ninety nine 3'ears), at a certain stated rent, would be in derogation of the existing law (Sec. 3679, Rev. Sts.), and, unless specially authorized bv statute, inoperative, even though providing that future rents should not be payable unless appropriations were actually made for their payment.' And advised that, where it is desired to occupy the premises 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 noyjo being necessarj' for each fiscal year, though the successive leases be mere repetitions and exten- sions of the original lease and though it be expressly stipulated in the original lease that the United States .shall have the privilege of such extensions if desired. XXXII, U'l, May, 1872; XLIII, 98, Novemler, 1879; XLII, 677, Jnue, 1880. So held that a lease of land at a certain rent, for an indefinite term, would not, in the absence of specific statutory authority, be legal or operative beyond the end of the existing fiscal year. XXXVI, 315, March, 1875. So of a pro- posed contract by the United States for the use (for a fixed compensa- 'See Curtis v. United Staten, 2 Ct. Cls., 144, 151; 4 Opins. At. Geu., 600; 9 id., 18. ^See the opinion of the Attorney General in the case of the "Fifteen percent. Contracts" (15 Opins., 2:55), where it is lield that, in view of the i)rovision of Sec. 3738, Rev. 8ts., a contract for a ])ublic building cannot "be binding so far as to afhx itself to future api)roi)riations even if it is subject to the cuntingencv that such appropriations shall be made." And an o]iinion of Atty. (u'li. :\Iason is "referred to, where a contract of this class proposing to bind the Government to pavments in advance of appropriations "was held to, be of no validity, even though it provided that such contract should depend for its validitv upon the contingency that an appropriation should be made and such appropriation was in fact thereafter made." And similarly held in the ftirther oi)inion in regard to the same contracts, in 15 Opius., 235, 253. See, also, 5 Com]). Dec, 9(38. CONTRACT. 253 tioii) of a ferry or of telephones for an indefinite period. XLII, 454, Drdien appropriations permitted, monthly pay- ments should be made, ten per cent thereof to be "reserved," and that if paj-ment l)e discontinued for a period of one year owing to lack of funds, the total amount reserved from previous pavments should be paid to the contractor. On the question whether the amounts so reserved could be used in paying for work not j^i appropriated for, held that to do so would involve a violation of the contract entered into, and would operate indirectly as a pa3'ment for work in advance of an appropriation therefor. Card 620, JTovemher, 189If,. 892. Sec. 3733, Rev. Sts., provides that— "No contract shall be entered into for the erection, &c., of any public building, &c., which shall bind the Government to pay a larger sum of money than the amount in the Treasury appropriated for the specific purpose." B3- an act of June 16, 1890, the Secretary of War was authorized to cause to be erected at the National Armory at Springtield, Mass., a ])uilding for machine shops, &c., not to cost over a specified total of about two hundred and twelve thousand dollars. B}^ a suljsequent appropriation act of the same j^ear (of August 30, 1890) an appropriation was made of $100,000 "to commence the erection" of the same building. As it was thus quite evidently contemplated by Congress that the further ^Such a contract is now permitted by sec. 2, act of Sept. 19, 1890 (26 Stats., 452). CONTRACT. 255 cost of the building would be appropriated for in a succeeding year or years, lield that a contract might (upon advisement, &c.) be legally entered into for the entire work of the erection of the building, for the full consideration named in the first act, without a contravention of the terms of Sec. 3733. 43, 37.5, Oet<>l>er, 1890. 893. JLdd^ that it would be legally authorized to enter into a con- tract for the construction, for the sum of $2,130, of quarters for hos- pital stewards at Jefferson Barracks; the limitation of contracts for such quarters to a less sum by the act of February 24, 1891, Ijeing con- fined to the fiscal year to which that act pertained, and therefore no longer in force. 61, 101, August, 1893. 894. Sec. 3600, Rev. Sts., in providing that balances of appropria- tions 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. 1661, Rev. 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 pay- ment of a contractor in December following, under a contract entered into, in November, with the Ordnance department for the manufac- ture of an arm intended to be issued to the militia. XXXI, So, Dccemher, 1870. 895. Under Sees. 3739-3742, Rev. Sts., it is illegal for an oflicer of the United States to enter into a contract or make a purchase of a firm or association (not incorporated) of which a member of or delegate to Congress is a member or in which one is pecuniarily interested.' XLII, 344, June, 1879. 896. The Army Regulations prohibit purchases li}" officers of the army "from any other person in the militar}- service."^ Held that this prohibition did not embrace civilians emplo3'ed in the public service under the War Department, or in connection with the mili- tar}^ administration, and therefore did not preclude the making of a contract b}' an ordnance ofiicer, as representing the United States, with a civil employee at an arsenal, for the use of an invention pat- ented by the latter.* XXI, 320, AjyrR, 1866; XLII, 308, May, 1879. (See §§956, 957, ^(>6'^.) 897. In view of the positive prohibition of Sec. 3737, Rev. Sts. , that > See 6 Comp. Dec, 815; id., 898. '^That Sec. 3739, Rev. Sts., does not affect contracts made with persons who have been simply elected members of or delegates to Congress, but have not actually become such bv being sivornin, see oi)inion of the Attorney General in 15 Opins., 280. ^See'A. R., 1002 of 1863; 1632 of 1881 ; 746 of 1889; 589 of 1895; 671 of 1901. *See United States v. Burns, 12 Wallace, 246, 251; 10 Opins. At. Gen., 2; 20 ((/., 329. 256 CONTRACT. no contract or interest therein shall be transferred by the contractor, and the further provision that any such transfer shall operate as an annulment of the contract, "so far as the United States are con- cerned," 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 perform the service/ XXXI, 436, June, 1871; XXXVII, 13, May, 1875. 898. Where a contract has been once formally entered into with a cer- tain party, for the officer representing the United States to assume to admit additional parties into the agreement and undertaking (thus in fact consenting to a transfer by the contractor of an interest in the contract) would be wholly unauthorized. XXXVI, 463, 3lay, 1875. 899. A mere power of attorney given hj 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 con- tractor and another party, the latter was empowered to receive the pay- ments from the United States, in consideration of which he undertook to continue and complete the work contracted for, held that such agree- ment was a power coupled with an interest, and operated as a transfer within the meaning of Sec. 3737, Rev. Sts." XXVIII, 346, Jaunanj, 1869. 900. Under Sec. 3737, Rev. Sts., the assignment of a contract does not render it absolutely void, but voidable at the option of the United ^ That an assignment of a contract transfers no legal claim or right of action tothe assignee, and that a contract when assigned is no longer binding npon the United States, see Wheeler v. United States, 5 Ct. Cls., 504; AVanless v. United States, 6 id., 123; Gill ('. United States, 7 id., 522; McCord v. United States, 9 id., 155; Francis v. United States, 11 id., 638; 10 Opins. At. Gen., 523. But it has been held by the Attorney General that the statute on the subject (Sec. 3737, Rev. Sts.) is intended simply for the benefit and protection of the United States, which, therefore, is not compelled to avail itself of a transfer by the contractor to annul the contract, but may recognize the same and accept and pay the assignee. "Were it to beheld," observe.-^ the Attorney General, "that a transfer of an interest would absolutely avoid the contract, it would enal)le any party making a contract with the United States to avoid it by simply transftirring an interest therein, which is a construction manifestly inadmissible." Opinion in the case of the "Fifteen per cent, contracts," (15 Opins., 235.) And similarly held by the same authority in a later opinion (16 Opins., 277) that while the 'rnited States may avail itself of an assignment to de(;lare 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 that an otlicer of the anny could not properly assume to treat an assignment of a contract (or interest therein) as valid, without the authority and direction of the Secretary of War. That for a mail con- tractor to contract w'ith another person to transport the mail for him, and as his servant or employee, was not an assignment of his contract witli the United States, was held in the recent case of Frye r. Burdit'k, ()7 Maine, 408. -That a power coupled with an interest is irrevocable, see Hunt v. Ennisc/o/., 2 Mason, 244; Wheeler v. Knaggs, 8 Hannnond, 161); McDonald v. Admr. of Black, 20 Ohio, 185; 7 Opins. At. Gen., 35. CONTRACT. 257 States.' Where the Government accepts from the assignee work or materials under the contract, or permits a part performance, it ratifies the assignment.- 16, 1, Aj>r'd, 1887; Card 2983, Fehruary, 1897. Where the War Department assented to the transfer of a contract for the manufacture of ordnance from one iron works to another and accepted deliveries from the latter, Jtdd that the contract remained in full force. 16, 1, stipra. 991. The expression in a contract that the contractor agrees ''"for heirs, executors and administrators " is not essential. The personal representatives of a deceased contractor are entitled to carry out his contracts, and the estate, both personal and real, of such con- tractor is liable for his debts and contracts independently of the pro- visions of the contracts. The provision that the transfer of the contract or any interest therein ''shall cause the annulment of the contract so far as the United States is concerned," being the words of the statute (Sec. 3737, Rev. Sts.), may properly be incorporated in the contract, but it would l)e better to substitute therefor the provi- sion that ''in case of such transfer the United States may refuse to carry out this contract either with the transferor or the transferee," as more clearly expressing what is intended by the statute as construed by the courts. Card 2878, Jntiuanj, 1897. 902. An assignment, to have the effect of invalidating a contract, need not be express; nor need it be technical, formal, or written.^ It may be evidenced b}- the various facts or circumstances illustrating the relations and intention of the parties. 62, 211, JVor<')nhei\ 1893. 903. It has been held by the Supreme Court* that Sec. 31:77, Rev. Sts., which prohibits or makes null and void all transfers and assign- ments of claims against the Government does not apply to involun- tary assignments in bankruptcy or even to voluntary assignments for the benefit of creditors and the reasoning applies with equal force to Sec. 3737, Rev. Sts.** So Jield that an assignment for the benefit of its creditors by the company under contract with the United States to buikl the Memorial Hall at West Point, N. Y., was not void under Sec. 3737, Rev. Sts. Card 2828, December, 1896. Further held that where there had been an assignment for the benefit of creditors, pa}^- ments due or becoming due on the contract should be made to the dui}' appointed assignee and could not legally be made to the assignors, and ^ See 15 Opins. At. Gen.,i235; 16 id., 277; 18 id., 88; also Francis v. United States, 11 Ct. Cls., 638; 2 Comp. Dec, 49; 4*^., 43; 6 id., 88. ^See Wheeler v. U. S., 5 Ct. (:;is., 504; 2 Comp. Dec, 49. * Francis v. V. S., 11 Ct. Cls., 638. ^Erwinr. U. S., 97 U. S., 392, and (ioodiiKiu <■. Xihlack, 102 Id., 556. ^2 Comp. Dec, 49. 16906—01 17 258 CONTRACT. that par. 1, Circ. 13, A. G. O., 1895, did not apply to such an a.ssig-n- ment.^ Card l>052, February, 189G. 904. Sec. 3737, Rev. Sts., does not apply to an assignment hy opera- tion of law. Thus where a part}' died pending* the execution of a con- tract by him with the United States, held that his executors could legally be permitted to complete the contract after filing a certificate from the proper court of their appointment, ])ut for them to assign the contract to others would be a violation of its terms and also of Sec. 3737, Rev. Sts. Card 581:9, February, 1899. And where a bidder died before the contract was entered into, held that the contract and bond should be in the names of the executors of his estate as such executors. Card 8103, May, 1900. 905. The assignee of a party entering into a contract with the United States should sign the same as assignee, or if signed for hiui by an agent, the authority, in writing (under seal if the contract ))e under seal) of such agent should accompany the contract. Card 21rl6, Jtdi/, 1S9G. 936. A receiver duly appointed for a company having a contract with the United States may be permitted to execute the contract, payments being made to the receiver on receipts signed b}" him. Such action would not amount to an assignment of a contract prohibited by Sec. 3737, Rev. Sts. This section applies to voluntary transfers and not to such as are made under judicial proceedings. The receiver is an officer of the court which appointed him, acts under its orders, is appointed on ])ehalf of all parties interested, and stands in the place of the company. And after his appointment the compan}' can exercise no acts with refer- ence to its property and contracts, such matters being in the hands of the receiver. Card 7508. January, 1900; 9217, JVoreinber, 1900. 907. It is a general principle that after a govermnent contract has been once duly consummated, the same cannot legally be modified as to an}' of its material stipulations l)y the consent of the immediate parties.^ To agree to such a modification is in efi'ect to make a new ^Concurred in by the Comptroller of the Treasury under date of Feb. 20, 1896. ^ " The power vested in the head of an executive department to make contracts for work or materials does not imply the i)ower to rescind or alter such contracts when made." 9 Opins. At. (ien., 80. "The authority to make a contract implies no authority to change it after it is made." Id., 104. "When the contract is closed, the general rule is that it must be executed without change of terms. * * * The terms of contracts made by government officers are not in general subject to change at the will of either party, or of botli parties. If they were, every legal guard agamst fraud and favoritism in making contracts could be easily evaded." 10 id., 476, 480. The later authorities, however, appear to favor the exercise, ])y the head of a Department, of a discretion to consent to modilications in the course of the execution of i>ublic contracts, where such modifications (not ))eing in contravention of law) are found to be for the pul)lic interest, and are not of such a character as to operate to tlie pecuniarv disa\ Corliss Steam-Eng. Co.j 1 Otto, 321; ITi Opjns. At. Gen., 481; 21 id., 207; 2 Comp. Dec., 182; :! id., 54; 4 id., 88; 5 id., 8:]; 7 /'/., 92. CONTRACT. 259 contract. Thus where a contract had been duh' made and executed for the furnishing- of a certain specified ({uantity of military stores, held that an agreement subsequently entered into between the contractor and the officer representing- the United States, that the former should deliyer and the latter receiye, under the contract, a certain additional quantity of the same stores, was not merely a modification of the exist- ing contract, but was in fact the making of a new contract, and this without a compliance with the formalities re(|uired by statute. And advised that the stipulation thus agreed to ())ut not in fact carried into effect) be rescinded as unauthorized and in contrayention of law. XLI, 182, April, 1878. 908. Of course no new term or condition can be ingrafted upon a contract by the United States without the assent of the contractor. 29, 324, January^ 1889. Material changes made in a contract not stipulating for the same, by supplemental contract or otherwise, will operate in law to discharge the sureties on the contractor's bond unless they formally assent to the same, whether such change or changes be prejudicial to them or the reyerse.^ 30, 116, Fehruary^ 1889; 55, 365, Septemhe'i\ 1892. But where, in the course of the execution of a contract for the dredging of a riyer, there was deyelopcd certain work requiring to be done, which was not embraced in the work con- tracted for but was quite new and distinct, viz., the remoyal of a bar formed in the riyer after the work under the contract had commenced — held that the same could not be included by consent in the existing contract, or coyered hy a supplemental contract entered into, without adyertising, with the same contractor, though such course might be more adyantageous to the United States, but that the law must be complied with b}- a new adyertisement for proposals followed ])y a separate formal contract. 47, 257, May, 1891. 909. Where a contract stipulates for a modification of its terms, bj^ consent of parties, to be set forth in a supplemental contract, such supplemental contract must be confined to modification mei-ely of the specific undertaking which is the subject of the original contract. A modification which introduces any new matter not originally con- tracted for — as different and distinct work to be done or seryice to be performed — is a new and independent contract made without adyer- tising for bids, and not legitimate.^ So held that a contract for iSee U. S. Glass Co. v. W. Va. Flint Bottle Co., 81 Fed. Rep., 993, where the court, while holding that the alteration in question was material, also held that an Imma- tcrUtl alteration by the parties to a contract would discharge the sureties, if made "without their consent. Hn an oj>inion dated August 13, 1895 (21 Opins., 207), the Acting Attorney Gen- eral held that a modification oi a contract, " where the interests of the Government will not be ]H-ejudiced or any statutory provision violated thereby," may be made, although it mav be a departure from the advertisement for proposals, citing V. S. v. Corliss .Steam Engine Co., 91 U. 8., 321, and Ferris v. U. S., 28 Ct. Cls., 332; that a 260 CONTRACT. dredging in North Rivor and at North River Bar, North Carolina, could not legalh" l)e modified by a supplemental contract substituting dredging in Currituck Sound, a (juite different locality. 64, 344, 910. Where an extension is authorized b}' the terms of a contract, the same — in a just case and where not pecuniaril}' disadvantageous or otherwise prejudicial to the public interests — may be granted in the discretion of the Secretary of War. In an instance of a contract for the erection of officers' quarters at a military post, where an exten- sion of time, applied for, appeared to be equitable, recommended that it be granted with the condition that the United States waived no rights which might accrue under the contract by reason of the non- performance within the period originall}^ stipulated. L, 510, Jidy^ IHSG. 911. Similarly held where the contract provided for the construc- tion of the Barnes Landing Levee, and the Warlield Point Levee, Mississippi, and it was proposed to enter into a supplementary con- tract for the erection of 40,.000 cubic yards at Ingomar, Mississippi, instead of at Barnes Landing as already provided in the original con- tract, but rejuarl'cd that if the work at Barnes Landing was not neces- sar}^ as stated, so nuich of the original contract as provides for it may with the consent of the contractor and his sureties be annulled: or if th(> contractor will not consent to this action he may l)e notiffed that the work will not be done; and the United States would in that event be liable only for the damage he sustained in not being permitted to complete his contract. Card 475, Oetolx-r^ 1S9I^. So, where a contract for dredging had been made, and it was subsequently discovered that dredging was necessary at a place'and of material different from those contemplated in the advertisement, lieJd that a supplemental contract to cover such additional dredging would not be a legal modification of th(^ original contract. Card 1454, June^ 1895. 912. Upon the authority of the opinion of the Attorney General dated Aug. 13, 1805,^ Jiehl that supplemental contracts were legal in the following cases: To provide for an additional expenditure to cover the cost of additional masonr}^ rendered necessar}" by the site of a ((uartermaster and conunissary storehouse, not shown on the plans or provided for in the original contract for the building of the house. Card :^7()5, Octo1>ei\ 1896. For additional excavation found necessary provision for such modification " may well be provided for in every contract to which the Government is a party; and that a contract so modified is not such a new con- tract as must be preceded by an advertisement for proposals from bidders." See, also, 2 Comp. Dec, 373. The modification, however, must not be prejudicial to the interests of the (Jovernment. 2 Comp. Dec, 184, 242, 035; 4 id., 39; 7 id., 92. ^ See preceding note to § 909, ante. CONTRACT. 2()1 in the construction of a cofferdam, and piling- foundation for a lock. Card 2927, FSru<(r[i^ 1897. To cover expense to contractor of main- tenance, etc., during" suspension of river and harbor work, directed by the engineer oificer in charge on account of high water and to pre- vent damage to the levee which the driving of piles, etc., ])v the contractor might have caused. Card 2927, Ji()i>\ 1897. To substitute in the wings of a lock 800 round piles 60 feet in length for that num- ber 50 feet in length. Id.., J.Kly^ 1897. To provide for necessary "rock excavation," the original contract providing for "common excavation" only. Card 5244, November.. 1898. 913. A contract for the construction of a portion of a lock on Osage River, Mo., was duly made, but after the contract was entered into improvements in the Missouri River changed the point of the junction of that stream with the Osage River, thus making it necessary to lower the lower miter sill of the lock about live feet. This rendered the original plans no longer applicable. It was proposed to buy out the contractor and complete the work without contract; this in view of the River and Harbor Act of Aug, 11, 18SS, which provides " that it shall be the duty of the Secretary of War to apply the money herein and hereafter appropriated for improvement of rivers and harbors, other than surveys, estimates and gauging's, in carrying on the various works, b}' contract or otherwise as may be most economical and advan- tageous to the Goverrmient."' TFeJd., therefore, that a supplemental contract providing 1, for terminating the contract; 2, for pa3'ing for work already done; 3, for purchasing the plant, leases, privileges, etc., would be legal with respect to terminating the original contract and paj'ing for work already done, and also legal with respect to the purchase of the plant, etc., if the practice under the statute cited, of extending it to purchases of supplies, etc., used in "carrying on river and harbor works,'' be accepted as correct. Card 2275, 2Lnj^ 1896. 914. A contract was made for the earth work construction of ''mile 24," Illinois and Mississippi Canal. At the time the specitications of the contract were prepared it was assumed that the work could be done by building part of the embankment with the clav and gravel from the high grounds at the east and west ends of the mile in ques- tion, this method appearing to be perfectly feasible and practicable from the test borings which had been made. The latter were, however, made in very dry weather. During the rain}' season which followed further examination developed that the mile for two thirds of its extent was a peat bog of great depth. The construction outlined in the speci- fication could not be successfully executed except by excavating this peat from the greater part of the mile and then making the slopes and bottom of ffood water-tio-ht clav and p-ravel which could not be 2(32 CONTRACT. obtained on the mile. The changed conditions rendered it desirable that the Government should not enforce the construction outlined in the specilications, and induced the contractors to ask that the contract be annulled without prejudice to them. Jldd^ that there was no leoal objection to a supplemental contract annulling- the original con- tract 51 s indicated. Card 5195, Decemhei\ 1898. 915. A contract was made for the construction at Fort Hancock, N. J., of thirty two buildings and one double bake oven at a stated price for each building, etc., the prices aggregating a stated amount. The contract provided that the payments should be made at such times and in such amounts as the officer in charge of the work should elect, based upon estimates to be made by him of completed work, and that twenty per centum of each payment should be retained until the final completion and acceptance by the Government of all the work under contract. After several of the buildings had been completed the Gov- ernment occupied and continued to use them. On the questions whether the price for each building as itemized in the contract could legally be paid in full as soon as the building was completed, and as to the effect which the occupation of the buildings by the Government before final and full payment would have upon the responsibility of the contractor for the care of such buildings, advised^ 1, that if it were desirable to make payment in full for each building when completed, a supplementary contract be made, with the consent of the surety, pro- viding for such payments; and 2, that the unexplained occirpancy by the Government of the buildings would prol)ably amount to an accept- ance of them and thus relieve the contractor of responsibility there- for. Card 4825, August, 1898. 916. Where the progress of a contractor in the performance of important work, contracted to be done by him in connection with the improvement of the Savannah River, was quite unsatisfactory, and the alternative under the terms of the contract appeared to be either the absolute aiuuilment of the contract by the United States, or the supplementing of the operations of the contractor by work carried on by the engineer department of the army, the contractor paying the extra expense if any— //(V^/ that a supplementary contract made with him to the effect that the engineer officer in charge of the improve- ment should render him a!d in th(^ performance of the work, charging to him the actual cost of such aid and deducting it from the payment to be made him undei- the contract, was without legal objection. 62, 451, Thcemler, 1893. 917. While the Secretary of War is without jurisdiction to adjust and pay unli(iuidated damages for an alleged breach of a contract by th(> (lOvcriinuMit, lie may. where it would be to tJie jtiihllc i /iter est to CONTRACT. 263 do so, discontinue a contract between the United States and another party and relieve both parties from all obligations under the same for a consideration, by entering into a supplemental contract for that pur- pose, which would l)e binding on the United States/ Card 3969, April, 1898. 918. A debt due to the United States is public property and cannot be surrendered or its payment waived by an executive officer in the absence of authority from Congress. So held that the Secretary of War was not empowered to release a contractor from a pecuniar}^ lia- bility incurred by him for a delay or other neglect in duly performing his contract, and expressly defined and agreed upon therein as ""liiiai- dated damages"' (XXXVII, 442, March, 1876; XXXIX, 341, Dfcem- her, 1877); or to allow a contractor, in settlement, after a failure fully to perform his contract, a certain percentage of payments, stipidated in the contract to be withheld from him in the event of such failure (XXVIII, 346, 605, Jamianj and May, 1869; XXXI, 93, Decemher, 1870; XXXVII, 441, March, 1876; XXXIX, 341, Becemher, 1877); or to omit to charge a contractor with the difference between the contract price and the price which the Government was obliged to pay in sup- plying by purchase in the market articles failed to be furnished accord- ing to the contract, where it was expressly stipulated in the contract that the amount of such diflterence should be charged against the con- tractor. XXXII,. 6, May, 1871; XXXVII, 437, March, 1876. And lield that the fact that the failure of the contractor was due not to his fault. 1)ut to hardship or misfortune, could not add to the authority of the Secretarv of War in the matter.'' XXXVII, 437, siqjra. But where the contract does not state whether the sums to be forfeited are to be regarded as penalties or as liquidated damages, and where the actual damages are capable of ascertainment, the forfeiture ma}' be treated as a penalty from which to indemnify the United States for the actual damages if an}', and the excess over such actual damages ma}^ be remitted.' Cards 652, June, 1895; 1960, 2{ay, 1896; 6407, ^Lay, 1899; 6684, July, 1899. 1 U. S. r. Corliss Engine Co. , 91 U. S. , 321 . Satterlee i: U. 8. , 30 Ct. Cls. , 31 ; 3 Comp. Dec, 54; 6 id., 953. ^ Where a contract is to Ije treated as stipulating for liquidated damages, the amount of such damages cannot 1)e remitted. 21 Opins. At. Gen., 28; 3 Comp. Dec, 2iS2; 5 id., 315, 597; (i id., 748. But where it provides for a penalty, only actual damages can be withheld. 2 Comp. Dec. 579; 4 /(/.,217. As to whether the provisions of a contract should be treated as stipulating for a i)enalty or for liquidated damages, see 34 Ct. Cls., 205; and 3 Comp. Dec, 282, and authorities cited. The inclination of the courts is to treat a sum to be withheld under the provisions of a contract as a pen- alty, from which actual damages only can be deducted; btit where the amount with- held is reasonalile, and the actual damages are incapable or difficult of exact ascer- tainment, a stipulation for liquidated damages will be sustained as such. 34 Ct. Cls., 205; 3Comi). Dec,282; 4/(/.,217. ^See 2 Opins. At. Gen., 481; 9 id., 81. *4 Comp. Dec, 217; 21 Opins. At. Gen., 28. 2(U CONTRACT. 919. The reserved ten per cent is a penalty intended to secure the United States against any damage resulting from a failure to perform the contract. The Government is not entitled to retain more than the amount of the actual damage.^ L, 361, June^ 1886. Where, though not a complete execution, there was yet a substantial performance, the contract not having been legally annulled by reason of a failure to give the notice of annulment stipulated for, held that the percentage should not be reserved but paid to the contractor. 34, 232, Augud, 1889. 920. Where a contractor, in the event of non-performance, was to be "charged" the sum of $1000 as a "penalty," to be deducted from the mone3^s due him under the contract, it was lield that this amount was not liquidated damages, but penal t}^ as described, and, inasmuch as (in the particular case) there was in fact no damage, was not properly to be charged against the contractor on settlement. ' 42, 328, Augmt^ 1800. 921. The contract for the construction of the Gymnasium at the Military Acadeni}- stipulated for the payment of an entire sum for the whole work, less a deduction of $25 per day for the days during which the completion might be delayed beyond a certain specified date. The building not having been completed at such date, held that the Secretary of War was not empowered to waive any part of the forfeiture, the same being liquidated damages, not penalty.^ 62, 353, 418, JS^mremher, 1893. 922. W^here contracts for liuildings at the Soldiers' Home provided for the completion of the buildings on certain dates and stipulated for the deduction of $25 per da}^ as liquidated damages for each daiy thereafter until the buildings should be completed, held that as the contracts clearly stipulated for liquidated damages, and as the amount was reasonable and the probable loss to the United States was difficult of ascertainment, such amounts were to be treated as liquidated damages, and the Board of Commissioners of the Home had no authority to remit such damages. Card 7314, November^ 1899., March and October, 1900. 'U. S. V. Quinn, 99 U. S., 30; 15 Opins. At. Gen., 418. ^Tayloe r. Handiford, 7 \Vheaton, 13; Taylor v. The Marcella, 1 Woods, .302. And see 20 Opinn. At. Gen., 511. ^See Texas, &.(.-. R. Co. v. Rust, 19 Fed. Rep., 2.39; Am. & Eng. Eney. of Law, 1st edition, vol. 5, p. 25. In this case, however. Attorney General Olney under date of May 28, 1894 (21 ()j)ins., 28), lield the stipulation to be for a penalty, and remarked as follows: "Inasmuch as the forfeiture or penalty incurred here was one imposed by the contract between the parties and not by any act of Congress, and the work contracted for has all been finished according to the contract and no actual damage has resulted to the United States, and the penalty is one from which, in like cases, a court of ecjuity would grant relief, I am of opinion that the Secretary of War has authority to remit the forfeiture provided for in the contract and to order payment of the entire sum withheld from the contractor." CONTRACT. 265 923. A head of a department, in the matter of the making and execu- tion of a public contract, acts as an agent of the United States and cannot legally relinquish any pecuniar}' right of his principal. In the absence of express statutory authority, an executiye officer is not empowered to release an ascertained debt due to the United States. LII, 197, 2fay, 1887; 57, 122, Decemher, 1892. 924. Where it was covenanted in a contract that ten per cent of each partial payment should be withheld until the completion of the contract, JieJd that this reservation could not be continued so as to apply 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 tirst, was in law and fact a Qieiv 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 full}" completed. XLI, G25, J>ih/, 1879. 925. Extra work performed under a contract not in terms contem- plating such work, or providing as to the price or rate to l)e paid for it, must be considered as having been voluntarily rendered under the contract.^ 63,180, January, 189 Ji.. 926. The Secretary of War, in the absence of authorit}- from Con- gress, is not empowered, whatever be the merits of the case, to release a contractor from the due performance of his contract,^ or to relieve or compensate him on account of losses suffered by him in fulfilling or attempting to fulfill his contract, where there has been no breach on the part of the United States.^ In such a case Congress alone can grant relief. XXXVII, 440, March, 1876; 62, 367, JVoveinber, 1893; Card 2402. June, 1896. 927. The Secretary of War is not authorized to release a contractor from his contract, on the ground that he has encountered unexpected difficulty in completing it, or that its execution will involve a material pecuniar}- loss. He can not relieve a contractor from a bad bargain.* ^ But where the extra work or materials are ordered or contracted for, payment therefor may be made. 1 Comp. Dec, 481; 6 ((7., 769; 7 id. (dated January 22/1901). '■'See Opinion of the Attorney-General in 15 Opins., 481. *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) remarks 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 either 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 higher price than the con- tract stipulates for. * * * In short you have no jiower to relieve him from the hardship he complains of, either by giving him damages, by releasing him from his present contract, or by making a new one. * * -^^ If the contractor quits the work, (ir otherwise vitiates the covenants ho has made with the Government, he nmst do so at his own peril and that of his sureties." *2 Opins. At. Gen., 482; 9 id., 80; 15 id., 481; 17 id., 370. 266 CONTRACT. L, 1%,Felruary, 1886; 67, V^,DectnJjti\ 1892; 63, 27, 1)eeeml>ei\ 1893; Card 2509, September, 1896. A contractor, because he is losing- money, cannot be allowed to be released upon a new man being substituted who will undertake the contract at the same rate. L, 76, (D^fe. 928. A supplemental contract releasing a contractor from a contract for dredging a channel, because to insist upon its completion as agreed would be a hardship^ — the supplemental contract stipulating that the contractor should be paid for the work actuall}" performed provided he first remove his plant from the channel — Jield unauthorized and void. 63, 28, Decemher, 189-i. 929. The Secretar}" of War is not authorized to release a contractor from the execution of his contract, unless, by action of the elements or other overpowering cause, performance is rendered practically impossi- ble. Held that a contract duly made for the removing of a wreck in Charleston harbor, rendered difficult of completion by stormy weather, the action of the tides, &c., could not legally ))e allowed to be super- seded b}^ a supplemental contract for partially l)reaking up the wreck, entered into with the same party, without advertising, &c. 63, 256, January^ 1894. 930. A contractor maybe excused from performing his contract where its execution has been rendered impossible by an acttts Dei, or cause which could not possi])]y be attributed to himself;^ as where, by rea- son of an excessive and prolonged drought and conse(|uent failure of the grass crop, the completion of a contract to deliver hay at a militar}^ post w'tS rendered impracticable. Where full performance is thus pre- vented, without fault of the contractor, he is entitled to be paid for the deliveries actually made. 32, 444, Jlay, 1889; 56, 259, October, 1892. 931. But where a contractor, expressl}' and without condition or reservation, engages to perform a specific work or service, he is l)ound by his contract, although its execution prove to be beyond his power, if within the scope of private exertion to accomplish. As where one contracted to remove the T)oiler of a steamer wrecked in Chesapeake Bay, but, after extended search, was unable to find it — /leJd that he could not legally be paid the amount stipulated in the contract.^ 39, 330, Jfrreh, 1890. 932. A contract establishes rights between the contracting parties, and an executive officer would have no authority to give away the con- tract rights of the United States. So /leld, where a contractor applied to be paid the difference between the contract price and the amount he 1 Satterlee, r. U. S., 30 Ct. Cls., .SI. '^ 2 Parsons on Contracts, 67^; 1 Wharton on Contracts, § 314. •*See 1 Bishop on Contracts, § 591; The Harriman, 9 Wallace, 161, 172; Lovden v. U. «., 13 Wallace, 17, 22. CONTRACT. 267 actually expended on the work, that the Secretary of War could not authorize such paj^ment. Card 2402, Jxint\ 1896. 933. Where a contract is not ambiguous or technically obscure, parol evidence is not adniissil)le to establish a new term or add an under- standing at variance with its written stipulations/ Thus where, prior to the execution of a contract, the officer acting for the United States advised the contractor that it would be necessary to deduct from the whole amount to be paid him certain sums which would be required to be disbursed by the Government for certain clerical work and the employment of certain assistants, but failed to insert in the contract any stipulation for such deduction — held that the written contract rep- resented the consummation of all previous negotiations and the final act of the parties, and that the United States was estopped from setting up, by parol evidence, the existence of an understanding that such deduction should be made. L, 488, July, 1886. 934. Where, after a contract for quartermaster stores had been duly subscribed and entered into by and between the lowest bidder and the proper official repi-esentative of the Government, it was ascertained that the former had failed fully to perform a certain contract some- time previously made between himself and the United States, held that this fact could not authorize the Secretary of War to cancel the con- tract thus formally executed and enter into a new contract with another party. XLI, 258, June., 1878. 935. Where a vessel was duly chartered from the owner l)y the Quartermaster Department, to carry coal from Philadelphia to Key West at a certain freight, and while oi route was stopped at the Dela- ware Breakwater by the military authorities, and compelled, against the protest of the master, to discharge her cargo at Fort Monroe, held that the United States was legall}" bound to pay to the owner the full freight to Key West according to the terms of the contract. XX, 491, 2farch, 1866. 936. A breach of some term of the contract, as, in a case of a con- tract for supplies for the army, a failure to deliver some of the arti- cles at the agreed time, will not ordinarih^ in the absence of an express covenant to that eli'ect, autho)"ize the Secretarj- of War to declare the contract annulled, but will only give the United States a right of action for damages. An unreasona])le delay, however, to commence the deliv- ery under su(.'h a contract, indicating an abandonment on the part of the contractor, will justify the Government in treating the engagement 1 Bradley v. Packet Co., 13 Peters, 89; Willard v. Tayloe, 8 Wallace, 557; Partridge r. Insurance Co., 15 id., 573; Maryland c. Railroad Co., 22 id., 105; Forsythe v. Kim- ball, 91 U. S., 291; IT. S. r. Peck, 102 id. 64; 1 Greenleaf Ev., § 275; 2 Wharton, Law of Contracts', § 661; Wald'y Pollock on Contracts, 458. 2f)8 CONTRACT. as relinquished, and will release it from the o))ligation to make paj'- ment. 29, 324, January, 1889; 34, 261, Augu.st, 1889. 937. It appears to l)e established that, in settling with a contractor under a duly executed contract, there may be set oft' against the amount due to him an amount due hy him as liquidated daTuages 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 con- tract, 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 to him,^ XXXII, 257, January, 1872. So where the Nav}' Department had supplied a construction company (under contract with the War Department at the time) with fresh water at the cost of distilling, the amount aggregating $431. 8»i, and was unable to collect the same, it was held that the amount stated could be withheld from monies due or to become due the compan^^ under its contract with the War Dept. Card 6841, August, 1899. And where a dredging company failed to perform its contract with the Navy Dept., held that an amount sufiicient to cover the loss to the U. S. caused by such failure might be withheld from monies due the company under its contract with the War Dept. pending settlement with the Navy Dept. by judicial proceedings or otherwise.^ Card 8973, SejA'iidjrr to Noverrd)er, 1900. 938. Where, in the settlement of the account of a railroad company' under a contract for militar}^ transportation, there was set off in the Quartermaster Department against the amount due the sum of certain amounts regularl}' and voluntarily paid l)y the United States to the company for transportation some five years previously on the ground that these amounts were in excess of the usual rates, laid 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 pay- ments, or of collusion between him and the officers who represented th(^ United States in receipting the accounts and making paA^meut. XXXV, 291, March, 187^. 939. There are three cases in which offsets are authorized: 1. A case of a claim and a counterclaim arising under the same contract. 2. A case of forfeiture of li(iuidated damages under an earlier contract sought to be deducted in a settlement had on a later one. 3. A case iSee 4 Opinss. At. Gen., .5.54; 11 (V7., 120; 2 Comp. Dec, 429; id., 34.5; 7 id., 21.3. '''If the ])arties cannot nnitually agree upon a balance, tin' jjroper course will in general 1)e for the Secretary of War to decline i)aynient until the account nhall be adjusted by the Court of 1,'laims, which has jurisdiction of all offsets and counter claims on the part of the United States against contractors and claimants. See Sec. 1509, Rev. Sts.; 2 Comp. Dec, 429. •'See Decision of the Comptroller of the Treasur\'. (hited A'ov. Ki, 1900, 7 Comi). Dec, 213. CONTRACT. 269 of an amount paid to a party under a mistake of fact/ proposed to be withheld from a subsequent payment due the same party. In either of these cases the principle of set-off may legally be applied in a settle- ment with a contractor. 44, 18, Noveniher^ 1S90. 940. Where n. prima facie claim for loss to the United States by the sinking of a steamboat on the Missouri River, existed against a con- tractor for transportation, and the Government w^as indel)ted to him on an account arising out of other contracts, advised that the sums due him be withheld until a balance should lie mutuall}^ agreed upon, or till the accounts should be judicialh^ adjusted (under Sec. 1059. R. S.) upon his resorting to proceedings in the Court of Claims. 36, 398, JSTovemher, 1889. 941. In a settlement with a contractor the officer representing the United States Avould not be authorized to pay over, to a civil official holding process of attachment or execution from a State court against the contractor, the amount of an}" debt or debts due by the contractor to a creditor or creditors. Payment must be made to the contractor personall}^ or to his agent or attorney, according to pars. 7^1, 726, A. R. of ^1889. 63, 292, January, 189J^. 942. Payments due on a contract with the Government, where the contractors are partners, may legall}' be made to any member of the firm, notwithstanding one of them may have filed a protest and notice against payment to one of the partners.' Card 3210, May, 1897. 943. Where, in a contract for the construction of a lock and dam, in the improvement of a river, it was provided that the engineer officer in charge might, in his discretion, pay for the stone when delivered dressed in advance of the time for putting it into the work — held that the deliver}^ was complete when the stone was fully dressed and ready for use in the stoneyard and the officer representing the United States in the improvement was duly notified of the fact and requested to take the stone; and that it was entireh' unnecessary that the United States should ha\'e any title to or usufructuary interest in the land of the stoneyard, and immaterial who was the owner or in possession of the same. 64, 225, J^fareh, 1891^. 944. A sub-contractor cannot, by injunction or otherwise, restrain the Secretary of War, or a military officer, from paying' the entire consideration of the contract, or so much as ma}" be due and payable, to the contractor. There is no privity of contract between the Gov- ernment and a sub-contractor and he has no U:'gal claim whatever upon ^ An offset may also be made for an overpayment due to a mistake of law, an the Government is not bound 1)y such mistake. See note to § 194.S, post. ■■'Noyesr. New Haven, New London, and Stonington, R. R., .'JOConn., 14, 15; Lindley on Partnerships, 218; American and Eng. Encycloptudia of Law, 1st ed., vol. 17, 998. 270 CONTRACT. the United States for any part of the contract money. He must look to the principal contractor for the pa^^ment of anything that may be due him. LII, 19-i, May, 1887. 945. Material-men could have claims upon the United States onlj^ as sub-contractors and b}^ virtue of having succeeded to the rights of the original contractor by being in a sense substituted for him in the contract. But this would be in contravention of Sec. 3737, Rev. Sts., since it would amount to a transfer to the sub-contractor of an interest in the contract. This section was intended for the protection of the United States, and to secure it from the necessity of having to decide controverted questions of liens and assignments, and must be held to apply to indirect as well as direct transfers. To recognize a lien on the part of a sub-contractor would bo to sanction an indirect transfer of an interest in a contract, which is prohibited. 29, 210, January^ 1889; 48, 341, August, 1891. 946. IL'hl that a sub-contractor for building materials furnished a go\'ernment contractor at Fort Riley, Kansas, coidd not enforce a lien against the United States under the statutes of that State. This, for the reasons — in addition to that set foi'th in -the preceding para- graph — 1st. That the State law requires that the lien be prosecuted in the State district court, a tribunal in which the United States is not suable. Thus the remedy cannot be pursued against the United States as owner of the buildings. 2d. That public policy forbids the obstruc- tion of the legal operations of the United States by State legislation or process.' 29, 210, January, 1889. 947. There is no law of the United States which authorizes an inter- ference, by means of a material man's lien, with an instrumentality of government in the District of Columbia. Soldiers' Homes are instru- mentalities of government. Held, therefore, that a mechanic's (mate- rial man's) lien liled against the amusement hall at the Soldiers' Home, Washington, D. C, could not be recognized as a ground for withhold- ing payments due the contractor who had built it. Card 2457, July, 18DG. 948. A contract stipulated — ^ according to a usual form — that the contractor should be responsible for and pa}^ all liabilities incurred for labor or materials. After its execution certain su])-contractors who had furnished materials to the contractor applied to the Secretary of War for his consent to their suing the sureties on the contractor's bond, in the name of the United States, for their own use, for the sums claimed by them. Ilehl that no such consent could legally be given, for the following reasons: 1. The contract had been duly per- 'See Brings v. A Light Boat, 7 Allen, 287, 297; McCuUoh v. State of Maryland, 4 Wheat., :;i(), 436. CONTKACT. '271 formed. 2. If not performed, to yield the claim would be to part with a ri^ht of action, property of the United States, without the authority of Congress. 3. The contract did not authorize or provide for such a proceeding. The covenant referred to is inserted mainly to further a prompt performance and incidentalh' to protect the United States from l)eing recurred to by the creditors of contractors. The failure to o))serve the covenant would douljtless give the United States a remedy in damages against the contractor and his sureties in case appreciable damages were suffered. But such damages, if any, would be ^Vholly ind(>pendent of the liabilities which the contractor might be under to his creditors and would not l)e measured b}^ their amount. Thus held that the suit proposed could be instituted only by the authority of legishition.' 56, 265, Novernher, 1892. 949. Held that the act of Aug. 13, 1894, protects persons furnishing labor or materials to sub-contractors as well as to the original contractor, but whether it does or not is a proper question for the courts to deter- mine. Advised, therefore, that a party who had furnished material to a sul)-contractor, be given a certitied copy of the contract and bond upon filing the affidavit required by the act. Card 1908, Jan nary., 1896. 950. Under date of Oct. 9, 1895, a party entered into a formal con- tract with the Ignited States for the construction of an addition to a building at Schuylkill Arsenal. He submitted two bonds, but both were rejected because not properly executed. In the meantime, he completed the work to the satisfaction of the Government, but owing to his failure to furnish a bond as required by the act of Aug. 13, 1894, for the protection of persons supplying labor and materials, no paj'ments had been made under the contract. ILhI, that until such bond was tiled no payment shoujd be made; and that this rule would apply to the assignee of the contractor if one had been appointed. C^ard ^)S:>^ M,i,j, 1898. 951. Held that the certified copy of the contract and bond, to be fur- nished as provided in the act for the protection of persons furnishing materials and l!il)()r for the construction of public works, approved Aug. 13, 1891, should, in accordance with Sec. 882, Rev. Sts., be authenticated under the seal (>f the War Department in order that such copy may ]:>e in proper form for use as evidence. Card 1743, S\^j}fe//d>e/'., 1895. Having duly obtained such copy, the party may upon the authority of the statute institute suit as provided therein. The permis- ^ Such authority has been given, since the date of thin oi)inion, in the act of Con- gress of August 13, 1894, c. 280, l)y which persons sui)i)lying, to contractors for ])ul)Hc works, labor or materials which have not been i)ai(( for, are authorized to be furnished with a co|)y of the contract and l)ond, and to l)ring suit on the same, in tlie name of the United States against the contractor and his sureties. 272 CONTRACT. sion of the Secretary ot' War to institute such .suit is not re(juired. Card 2319. J/r/y, 1896. 952. Tlie new obligation of the surety under the act of Aug. 1.3., 1891, does not create an additional obligation on the part of the I'nited States in the nature of an e([uital)le lien or other right. The United States is not required to withhold any funds due to a contractor for the purpose t)f indemnifying a surety for moneys paid out by him to material men and laborers.' For the United States to withhold, except for its own protection, payments due a contractor in order to pa}' therewith either liabilities on the part of the contractor or to indemnify his surety would be an assumption by the United States to insure the very payments which are intended to be secured l)y the provisions of the contract and the bond, and would cause the United States through the disbursing ofhcers to adjudicate the mattei's of fact and law arising between contractors and tlieir creditors. Cards 7311, Novemher. 1899; 7720, March, 1900. 953. Held, in the absence of any statutor}' regulation of the subject, that the Secretary of War was not empowered to exercise control over the labor employed by the contractors for the work on the jetties at Galveston, Texas, or to prevent their availing themselves of the labor of convicts authorized by the laws of Texas to be hired out to con- tractors. The only statute of the United States relating to the use of such labor — that of February 23, 1887 — merely makes it a criminal offence to hire out criminals incarcerated for offences against the United States, prescribing a penalty. But even this statute the Secretary of War has no authority to enforce, but the same is to be executed in the same manner as any other criminal statute of the United States.'^ 48, 402, August, 1891; Card 3512, Septemher, 1897. 954. Held that there is no statute requiring or justifying the annul- ment of a contract with the United States on the ground that Italian labor was being employed in its execution. Card 4652, July, 1808. 955. Sec. 1164, Rev. Sts., making it the duty of the Chief of Ord- nance to make contracts and purchases for ordnance and ordnance stores for the use of the army, is a general provision, enacted in 1815, and subject to be restricted and modihed by subsequent specitic legis- lation. Such legislation is the provision of the appropriation act for the Military Academy for 1892, for the purchase of certain ordnance and ordnance supplies, the effect of which is to place such purchase under the inmiediate control of the Secretar}^ of War. So held thac the dropping from this appropriation of the sum thus appropriated ^8ee3 C'oinp. Dec, 708. '^The action taken on the case in second citation nnder this i)ara^raph was: "The Secretary of War will not consent to the use of convict labor." CONTKACT. 273 and the placing of it to the credit of the Ordnance Department of the armj', was an unauthorized proceeding and should be recalled. 57, 86, December^ 1892. 956. Par. 746 A. R. (589 of 1895; 671 of 1901), to the effect that officers of the army shall not contract with other persons in the military service to furnish supplies or service to the Government, does not apply to contracts on behalf of the United States which require for their validity the approval of the Secretary of War.^ A contract may therefore legally be made by the War Department with Captain Zalinski, U. S. Arm}', for the purchase of pneumatic dynamite guns of his invention. 31, 106, 2farch, 1889. 957. On the question whether, in view of A. R. 589 (671 of 1901), an army quartermaster may enter into a contract with a retired officer of the army for the rent of rooms in a building owned by the latter, held that under the construction put upon this regulation by the Supreme Court of the United States,^ the Secretary of War may authorize the contract in question to be entered into, in which event it becomes unnecessarj' to consider whether a retired officer is in fact '' in the militar}^ service " within the meaning of the regulation cited. Card 2508, August, 1896. Similarly held with respect to a retired officer who as agent of a corporation desired to enter into a contract with the Government to furnish it military supplies. Card 4828, August, 1898. As the regulation is a prohibition proceeding from the Secretary of War to the officer or agent in the military service, it may be waived by the Secretary in a given case. So held that whether it should be waived where the contract was to be between a quartermaster of a volunteer regiment and a lirm whose business it had been and was to furnish quartermaster supplies and of which the quartermaster had been and was a member, was a question for the Secretary of War to decide on the facts of the particular case. Card 4218, June, 1898. 958. An officer of the army is under no statutory incapacity to be a part)'' to a contract with the United States, or to become connected ^ The paragraph of the regulations cited is substantially the same as par. 1002 of the Regulations of 1863, and with reference to the latter the Supreme Court held (IT. S. v. Burns, 12 "Wall., 251): "That regulation does not apply to contracts on behalf of the United .States which require fep, 1891. 970. Where an official of the War Department was allowed to compile and pul)lish facts derived from records, the property of the United States, preserved in that Department for official and public use and reference, held that he could not legally copyright in his own name such compilation. 43, 294, Octolev, 1890. 971. An officer of the army prepared, in 1S83, under orders from competent authority, a course of instruction in rifle and carbine firing which was submitted to a board of officers and after slight revision was approved by the Secretary of War for publication to and use by the arm}'. The officer who originally' prepared the instructions copy- righted the publication. Several years later other officers in their official capacit}' revised these instructions or regulations, which revision was approved and adopted by the Secretar}' of War. On the ques- tion whether the revised regulations could be published by the Gov- ^ See Sec. 9, Art. I, of the Constitution. ''Drone on Copyright, 324; Sec. 4952, Rev. Sts.; and sec. 1, c. 565, act of March 3, 1891. 'Gray v. Russell, 1 Story, 11; Drone on Copyright, 158. *See now sec. 52 of the public printing and binding act, Jan. 12, 1895 (28 Stats., 608). 278 COUNSEL — m civil proceedings. ernment without an infringement of the existing cop3a-ight, it was held that the copy right was not a valid one for the reason that the officer who originally prepared the regulations did so in his official capacity, in the performance of his duties as an officer of the United States Army and under the salary paid him by the Government; that the regulations as originally prepared, considered, revised and adopted became the official public regulations for rifle and carbine firing in the arni}^, and that therefore they could, as again revised by other officers in their official capacity, be printed by the Government for distribution to the army, without infringement of the copyright referred to/ Card 3433, \\u(jmt, 1897. COUNSEL— IN CIVIL PROCEEDINGS. 972. Prior to the passage of the act of June 22, 1870, c. 150, "to establish the Department of Justice" — (see the provisions of sees. 14, 16 and 17 of the same, as now incorporated in Sees. 189, 361, 363, &c., Rev. Sts,), the head of an executive department was held to be author- ized, under the general provision 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 civil war and subsequentl}^ — counsel were employed directly by the Secretary of War, or authorized by him to be employed, to defend officers, soldiers, and in some cases civilians serving with the army, in suits and prosecutions instituted against them, 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 party Avas shown to have acted within the scope of his authority, 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 defence be assumed by the United States, through the U. S. District Attorney, or some other counsel retained by the Secretary of War or authorized to be employed by himself ,— with the further sug- gestion that the counsel be instructed to remove the case, when com- menced in a State court, to a court of the United States, if practicable under the exi.sting statute law. Where the party w^as shown to have exceeded his authority, or to have been actuated l)y personal hostility, or to have disregarded the directions of par. 1461 of the Army Regu- lations of 1861 and not reported the case with sufficient promptitude, nVheaton v. Peters, 8 Peters (U. S.), 591; Amer. & Eng. Ency. of Lhav, vol. 4, pp. 154,158 (first edition). COUNSEL IN CIVIL PROCEEDINGS. 279 his application for counsel was commonly recommended to be denied. I, 34:8, Septemher, 1862; II, 16, January, 1863; III, 105, July, 1863; VII, 45, January, 1861^; VIII, 51, 108, 130, March, 186J^; X, 576, XI, 201, Decemlet\ 1861^; XIII, 509, IlarcJi, 1865; XVI, 565, XVIII, 290, Octoher, 1865; XXI, 197, January, 1866; XXIII, 121, July, 1866; XXIV, 135, January, 1867; XXVI, 248, December, 1867; 521, 536, Ajrrih 1868; XXIX, 458, Mwemher, 1869; XXX, 83, February, 1870; XXXIV, 65,- January, 1873. 973. But, b}^ the act of 1870, above indicated, the whole matter of the emploj-ment of counsel in cases of a public nature, and the settle- ment of their compensation, has been taken from the chiefs of the other executive departments and transferred to the Attorney General. Sec. 189, Rev. Sts. (derived from sec. 17 of said act), provides gener- ally that — '" No head of a department shall employ attorneys or counsel at the expense 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 Sees. 356 to 367, Rev. Sts. ; and when an officer or soldier gives notice, as required by par. 1059, A. R. (968 of 1895; 1072 of 1901), of a suit or prosecution commenced against him for an act done in the due per- formance of a military duty and applies to be defended at the expense of the United States, the Secretary of War, if he deems the case to be one in which such action will be just and expedient, will refer the papers to the Attorney General for the proper action. XXXVIII, 99, June, 1876; 62, 32, October, 1893. 974. Where an attorney submitted to the War Department a claim for services rendered an enlisted man in a habeas corpus proceeding, no notice of such emplo3"ment having been previously given, it was held that the employment and payment of the attorney were prohib- ited by Sees. 189 and 365, Rev. Sts. , and further that in view of Sec. 366, Rev. Sts., payment of the claim could not be made except by special act of Congress.^ Card 7256, Dectraber, 1899. 976. An action for damages was commenced against an officer on account of his having placed in confinement, as a deserter, a man who was in fact a discharged soldier. The man had been regularl}^ turned over to him as a deserter, and it was his dut}'^ to receive and hold him. The officer applied for counsel, under par. 1057, A. R. (968 of 1895; 1072 of 1901). Advlstd that the application be referred to the Depart- ment of Justice for disposition." 50, 363, November, 1891. 976. An officer proposing to bring suit in the Court of Claims, ' See par. 968, Army Regulations of 1895 (1072 of 1901). ^ The Attorney General instructed the local district attorney to appear and defend in the case. 280 COUNSEL TO ASSIST A JUDGE-ADVOCATE. under Sec. 1059, Rev^ Sts., for the amount of certain subsistence funds, for which he had been made responsible through the dereliction of a commissary sergeant, applied to the Secretary of War to detail an officer of the army to act as his attorney in the prosecution of the claim. Held^ in view of the provisions of sec. 5498, Rev. Sts., that such detail could not lawfully be made.^ 35, 452, October^ 1889. 977. An officer made application for counsel to assist a sergeant of his company in bringing suit for false imprisonment against a civil official. As the imprisonment of the soldier did not arise from any matter connected with his public duties, held that the application could not be acceded to under A. R. 845.^ LIII, 175, October^ 1885. 978. A soldier having been arrested by the civil authorities of a State for the commission of a civil offence, his post commander applied for counsel to defend him. Advised that there was no provi- sion of law for furnishing counsel in such a case. The laws of the State make it the duty of the courts to assign counsel at the request of an accused party when unable to employ any. 42, 51, July., 1890; 49, 253, Septemher, 1891. 979. Upon a request that counsel be emploj-ed by the War Depart- ment to defend an Indian under arrest on a criminal charge, before a State court, as an act of justice to "a ward of the nation," it was held that there was no fund under control of the Secretar}^ of AVar that could be used to pay such counsel, and further that the Secretary of War was without authority in the premises. 29, 154, January., 1889. 980. The Commissioners of the Vicksburg Military Park emploj-^ed a firm of lawyers, sul)ject to the approval of the Secretary of War, "to make abstracts of title for them and advise them what steps may be necessar}' to perfect the title to the lands which the Government needs for the Park." Held., that Sec. 189, Rev. Sts., prohibited the employment in question and that therefore the Secretary of War was without authority to approve the same. Card 6781, Jidy., 1899. 981. The War Department has no special regulations covering the matter of the qualilications of attorneys appearing before it. In practice any attorney who has legal authority to represent a client in a particular matter will be heard by the Department in that matter. Card 2931, February, 1897, to March, 1900. COUNSEL— TO ASSIST A JUDGE-ADVOCATE. 982. There is no special provision of law for compensating attorneys retained as counsel to assist judge-advocates. Such counsel should not be retained, except in important and complicated cases; and the 1 See 16 Opins. At. Gen., 478. ^ See 1057 of 1889 (968 of 1895; 1072 of 1901). COUNSEL FOR THE ACCUSED. 281 authority of the Secretary of War for their employment should first be sought and obtained. The claims of such counsel, approved by the judge-advocate, should be presented to the Secretary of War, to be paid, if allowed, out of the contingent fund.^ V. 44:6, Decemhefi^ 1863. 983. The fact of the selection of a certain officer as the judge- advocate of a military court is evidence that such officer is consid- ered qualified to conduct the prosecution of cases before such court; and the emplojanent of civil counsel to aid him in any case can be authorized only by the Secretary of War, or some proper commander. For a judge-advocate to employ counsel without such authority, or to contract with a counsel to pay him for his services a certain amount fixed between them without the sanction of the proper superior, would be an irregular and unwarrantable proceeding, and no such contract would be binding upon the Government. If paid at all he should be paid only such amount as, upon a review of all his services and inspec- tion of the record itself, shall be deemed reasonable and just. XXII 3-15, August., 1866. COUNSEL— FOR THE ACCUSED. 984. An officer or soldier put upon trial before a court martial is not entitled as of ri^ht to have counsel present with him to assist him in his defence, but the privilege is one which is almost invariabl}" con- ceded,' and where it is unreasonably refused, such refusal ma}^ consti- tute ground for the disapproval of the proceedings. XXXII, 519, Ajji'il, 1872. A court martial, however, is not required to delay an unreasonable time to enable an accused to provide himself with counsel. XXX, 102, Feh^uary, 1870. 985. While reasonable facilities for procuring such counsel as he may desire should be afi:'orded 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 particular officer whom he desired as counsel to ^In cases of exceptional difficulty and public importance, civil counsel were for- merly not unfrequently retained to assist the judge advocate, as indicated in the text. 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 the rarest occurrence. Under the existing law, indeed, counsel could be employed (at the public expense) for this purpose only through the Department of Justice upon the request or recommendation of the Secretary of War. ^See ]\IcNaughten, p. 178; Macomb (edition of 1809), p. 94; Winthrop, Mil. Law and Precedents, 241. In the case published in par. 4, S. 0. 145, Dept. of the East, 1896, the Department Commander decided, as shown by the record, that "as there is no officer * * * available for detail as counsel, it is believed, considering each of the charges, that the judge-advocate of the court should be able to guard the interests of the accused." Compare, on this subject, People v. Daniell, 6 Lansing, 44; People /'. Van Allen, 55 New York, 31. 282 COUNSEL FOR THE ACCUSED. act in that capacity, and this officer could not at the time be spared from his regular duties without material prejudice to the public inter- ests, lield that the commander was justified in den3ang the application, and further that the validity of the subsequent proceedings and sen- tence in the case was not affected by such denial. XXXII, 519, April .^ 1872. 986. An accused, prior to arraignment, even if in close arrest, should be allowed to have interviews with such counsel, military or civil, as he may have selected. XII, 44:1, June, 1865; XXI, 111, December ^ 1865. So, his counsel should be permitted to have interviews with any accessible military person whom it may be proposed to use as a materia] witness, or whose knowledge of facts may be useful to the accused in preparing for trial. XIX, 33, October.^ 1865. 987. 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. So held that it has no power what- ever to compel an officer to act as counsel for an accused. XIII, 100, July, 187 If. Nor can such a court excuse one of its members to enable, him to act as counsel for an accused. XXXV, 190, July, 187 If,; 57, 417, January, 1893. 988. Ifeld that G. O. 29 of 1890, providing for the detail by the commander of a post at which a general court-martial is ordered to sit, of a suitable officer of his command to act as counsel for prisoners to be arraigned, if requested by them, was not to be construed as sanc- tioning the detail or voluntary appearance of a post commander him- self in such capacity at his own post. 65, 77, 3Jay, 189^. 989. Section III, Circular 8, A. G. O. , 1891, provides that "no officer directly responsible for the discipline of an organization or organiza- tions under his command — as the conmianding officer of a post, band, company, battalion, squadron, or regiment — nor the trial officer of a summary court will be regarded as a 'suitable' officer under the provi- sions of General Order 29, A. G. O., 1890, for this dut}^ (counsel for defence before general court-martial) at the post where he is stationed." Held that the section quoted was intended to declare the officers men- tioned therein not suitable for the duty of counsel, and that it should not be construed as conferring upon them an exemption from such duty, which they could waive.* Card 29, July, 189Jf. 990. By the use of the word counsel in General Order No. 29, A. G. O., 1890, without qualification, it was undoubtedly intended that officers detailed as such should perform for an accused soldier all those duties which usually devolve upon counsel for defendants before civil 1 See Counsel, Court-Martial Manual of 1901, p. 25. COURT MARTIAL AUTHORITY AND FUNCTION. 283 courts of criminal jurisdiction, in so far as such duties are apposite to the procedure of military courts. It would be proper for an officer so detailed to employ all honorable means to acquit him, that is to invoke every defence which the law and facts justify, without regard to his own opinion as to the guilt or innocence of the accused. Mili- tary law does not an}" more than the civil assume to punish all wrong doing, but only such as can be ascertained by the methods of justice which the law and the customs of the service prescribe.^ 64, 164, March, 189 J^; Card 609, Wovember, 189 1^. 991. An application by an accused officer to be furnished, at the expense of the United States, with civil counsel to defend him on his trial by court martial, remarJied upon as unprecedented and not to be entertained. Par. 1057, A. R. (968 of 1895; 1072 of 1901), relates to no such a case. 50, 277, N'ovemher, 1891. No authority exists for the payment by the United States of civil counsel emplo3^ed by an officer or an enlisted man to defend him on his trial by court martial. 32, 165, May, 1889; 45, 438, February, 1891. COURT MARTIAL— AUTHOllITY AND FUNCTION. 992. Courts martial are no part of the Judiciary of the United States, but simply instrumentalities of the Executive power. (Compare § 2038, post.) The}" are creatures of orders; the power to convene them, as well as the power to act upon their proceedings, being an attri])ute of command. (See Seventy-second Article; One hundred and FOURTH Article.) But, though transient and summary, their judg- ments, when rendered upon subjects within their limited jurisdiction (see Court Martial — Jurisdiction), are as legal and valid as those of any other tribunals, nor are the same subject to be appealed from, set aside, or reviewed, by the courts of the United States or of any State. "^ V. 656, Decemher, 1863; LV, 486-492, 2rarch, 1888. ^ See Counsel, Court Martial Manual of 1901, p. 25. ^See Dvnes v. Hoover, 20 How., 79; £'.(\/x(r^.' Vallandigham, 1 Wall., 243; Keyes?'. U. S., 109 U. S., 336; Wales v. Whitney, 114 id., 564; Smith v. Whitney, 116 kl, 167; Johnson v. Sayre, 158 id., 109, 118; Fugitive Slave Law Cases, 1 Blatch., 635; In re Bogart, 2 Sawyer, 402, 409; Moore v. Houston, 3 S. & R., 197; Ex pavte Dunbar, 14 Mass., 392; Brown v. Wadsworth, 15 Verm., 170; People v. Van Allen, 55 N. York, 31; Perault v. Rand., 10 Hun., 222; Moore f. Bastard, 4 Taunt., 67; 6 Opins. At. Gen., 415, 425. "No acts of military officers or tribunals, within the scope of their jurisdiction, can be revised, set aside, or jnmished, civilly or criminally, by a court of common law." Tyler v. Pomeroy, 8 Allen, 484. Where a court martial has jurisdiction, "its proceedings cannot be collaterally impeached for any mere error or irregularity com- mitted within the sphere of its authority. Its judgments, when approved as required, rest on the same basis and are surrounded by the same considerations which give con- clusiveness to the judgments of other legal tribunals, including as well the lowest as the highest, under like circumstances." Ex parte Reed, 10 Otto, 13. See Winthrop's Mil. L. & P., 55-57 and authorities cited; 3 Greenleaf Ev., 470; Clode Mil. F., 361; id., M. L., 58. In Rose ex rel. Carter v. Roberts (99 Fed. Rep., 948) the court said: "It is not the 284 COURT MARTIAL AUTHORITY AND FUNCTION. 993. A court martial should in general be left to determine its own course of procedure, except where the same is defined by law, regula- tion, or usage. It would be unwarranted by usage to require in orders that a court martial shall adopt a certain procedure in any case or class of cases as to a matter properly within its discretion. Thus a com- mander could not properly order that courts martial convened by him should take testimony in cases in which the accused pleaded guilt}^ though he might properly recommend their doing so. XXXIV, 138, February^ 1873. 994. Where the accused pleads guilty and the specification does not fully set forth the particulars of the ofl'ence, the court is authorized to call upon or permit the judge-advocate to introduce testimony suffi- cient to inform itself, as well as the reviewing officer, as to the extent of the criminalit}" involved in the offence and the measure of punishment proper to be imposed. ^ XXXIX, 206, October, 1877; Card 5093, Odoher, 1898. 995. AVhile a specific punishment may be recommended in orders to be adjudged by courts martial in a certain class of cases, it is not com- petent to order such courts to adopt a particular form of sentence in any case. The duty and discretion of courts martial in the imposi- tion of punishments are prescribed and defined by the Articles of War. XXXI. 354, 2faij, 1871. 996. It ma}" be said to be a principle of military law that a court martial is to be left independent as to matters legally or properly within its own discretion. Such a court, however, ma}" not assume authority over a subject belonging to the province of the officer by whom it has been convened. Thus, while it may decline to proceed with the trial of a case manifestly not within its jurisdiction, it can- not properly refuse so to proceed on the ground that it is not empow- ered 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 office of a writ of haheaii corjms to perform the functions of a writ of error in review- ing the judiinient of a court martial. Courts martial are tribunals created by Con- gress in pursuance of the jwwer conferred by the Constitution, and have as i)lenary jurisdiction of offences connnitted to them by the law militarv as ilo the circuit and district courts of the United States in the exercise of their statutorv powers over other offences. The question of jurisdiction may be reached bv such a writ, as it may l)e when the judgment of any tribunal is attacked; but the range and scope of the in(iuiry is controlled by the same rules and limitations in either case. There must be jurisdiction to hear and determine, and to render the particular judgment and sentence imposed; but, if this exists, however erroneous the proceedings may be, they cannot be reviewed collaterally, or redressed by habeas corpus. These i)rinciples have been rej^eatedly declared by the authorities. J?i re Davison (C. C), 21 Fed., 618; Ex parte Reed, 100 U. S., 13, 25 L. Ed. ,538; In re Gov, 127 U. S., 731, 8 Sup. Ct., 1263; 32 L. Ed., 274; Ex parte Yarbrough, 110 U. S., 651," 4 Sup. Ct., 152, 28 L, Ed., 274; U. S. V. Pridgeon, 153 U. S., 59, 14 Sup. Ct., 746, 38 L. Ed., 631." ^See Court-Mar. Manual of 1901, p. 42, par. 2. COURT MARTIAL AUTHORITY AND FUNCTION. 285 upon the court without injury to the service; or that the accused has not been placed in arrest. A court declining to go on with a trial upon any such ground may be peremptorily ordered by the convening authority to proceed: if it still refuses, the preferable course will ordinaril}'^ be to dissolve it in general orders (adding, if deemed desirable, an expres- sion of censure on account of its contumacy), and to convene, for the trial, a court composed entirely of new members. XXI, 177, January^ 18G6; XXV, 578, 2fai/, 1868; XXVIIl, 57, August, 1868. 997. A court martial has no authority over the person 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; the compel- ling of his attendance before the court being a duty of the convening officer or post commander.^ XXII, 606, February, 1867. XXXIX, 44, Decernher., 1876. So, a court martial has, as such, no authority to arrest, or to require its judge-advocate or other officer to arrest, a witness suspected of false swearing upon a trial which has been had before it: in such a case its proper course is to report the facts to the convening authority for his action. Ill, 109, July., 1863. 998. Charges are regularly and properly referred to a court martial for trial by the officer 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 an}^ case will not be affected by the cir- cumstance that the charges were in fact irregularly referred to it by a commander inferior to the convening officer and without having been approved by him. XXII, 502, Decemler, 1866; XXVI, 167, Novem- ler, 1867. 999. A court martial is not authorized, in its discretion and of its own motion, to reject or strike out a charge or specification 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 nolle pro>'c^A, 1866. 1018. A court-martial has only statutory powers. Its judicial authority being derived wholly from statute (mostly the Articles of War), it can exercise no common law functions, such, for example, as the general power to punish for contempt. XLIX, 306, Augud, 1885. Its origin and authority being statutory, the statute law investing it with its powers must be closely followed. No presumption can lie made in favor of its jurisdiction. LV, 186, 2£arch., 1888. 1019. Courts-martial being no part of the Judiciary of the United States, but simply instrumentalities of the Executive power, the pro- visions of Art. VI of the Amendments to the Constitution, according, in criminal prosecutions, the right of trial by jury and to be confronted with the witnesses, do not apply to their procedure which is governed A\ holly by statute and military usage. I/dd therefore that the use of depositions under the provisions of the 91st Article of war was not open to ol)jection on constitutional grounds. 52, 204, February., 1892; 55, 4i»3. Ocfobrr, 1892. 1020. The principle of the Vth Amendment to the Constitution, but iSee Simmons §§ 699-707; Kemiedy, 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 ac(iuitting an acciij^ed, that the prosecution had been actuated by malice, was held nut to constitute a libel. 16906—01 19 290 COURT MARTIAL JURISDICTION. not the amendment itself, applies to courts martial trials as a part of our common law military. As Sec. SOU, Rev. Sts., does not apply to courts-martial, it does not set aside the general principle which with courts-martial takes the place of the constitutional provision, but whether it applies or not, an accused on trial ])efore a court-martial cannot, when testifying as a witness in his own behalf, be compelled by it to criminate himself as to the matter at issue. Card 1405, JaJy^ 1895. 1021. A court martial convened bv the Secretary of War, htJd legally constituted; such act of the Secretary being administrative and in law the act of the President whom he represents.' The order here is not a judicial ])ut an executive act, and, like any other executive order, is legal if made through the head of the executive department to the province of which it pertains. LVI, 465, Au(ju):rnii.'^/t//ient: they have no authority to adjudge damages for personal injuries or private wrongs/ XXYII, 454, Janu- ary^ 1869. The}' have no power to rescind a contract or to pass upon other civil rights. They are called into existence solelv for the pur- pose of awarding punishment for military otiences. Card 3608, jVovem- her, 1897. 1025. While it will in general be more for the interest and conven- ience of the service to l)ring an accused officer or soldier to trial near the localitv of his offence, he may with equal legality be tried by a court convened in any other part of the United States." XI, 351, Decemher, 186 J/.. 1026. In order to become amenable to the militar}" 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, l)ut not yet mus- tered into the United States service, was not amenable to the jurisdic- tion of a court martial of the United States for an offence committed while engaged in recruiting service under the authority of the gov- ernor. XII, 475, July., lS6i). 1027. An officer or soldier (except as otherwise provided in the 60th Article) ceases to be amenable to the military jurisdiction, for offences committed while in the military service, after he has been separated therefrom by resignation, dismissal, being dropped for desertion, muster out, discharge, &c., and has thus become a civilian.^ The old English precedent of Sackville's case* (which appears indeed to stand alone even in England) has not been followed in this country or recognized in our law. I, 395, November., 186^2; II, 49, March.^ 1863; XII, 476, July, 1865; XIII, 108, Decemher, 186J^; XIX, 64, 71, Octoher, 1865; XXI, 37, MvemJjer, 1865; XXXI, 34, 48, Mvemler, 1870; 571, August, 1871; XXXIII, 354, Septemler, 1872; XXXI Y, 422, August, 1873; XXXV, 649, November, 1871^; XLII.^ 313, June, 1879. Black., 1141; 6 Opins. At. Gen., 425. "A court martial is a court of limited and special jurisdiction. It is called into existence by force of express statute law, for a special pirpose, and to perform a particular 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 otiicerwho executes its sentence, are trespassers, and as such are answerable to the party injured, in damages, in the courts." 3 Greenl. Ev., § 470. See also McNaghten, pp. 175, 176. 1 See 2 Greenl. Ev., §§ 471, 476; United States v. Clark, 6 Otto, 40; Warden v. Bailev, 4 Taunt., 78. -That the jurisdiction of courts-martial is non-territorial, see § 1041, post. ^See this princi])le repeated and illustrated in G. C. M. O. 4, 16, War Dept., 1871; G. O. 90, Dep.t. of Pennsylvania, 1865; do. 43, Middle Dept., 1865; do. 22, Dept. of the INIissouri, 1866. *Nole the counter dictum of Lord IMansfield, in Parker r. Cllve, 4 Burrow, 2419 (dated in 1779), that officers of the army, "after resigning their commissions, cease to be objects of military jurisdiction. "" 292 COURT MARTIAL JURISDICTION. A dischiiro-o of a soldier, when subject to trial and punishment for a military ott'enee, is a formal waiver and a])andoinnent l)y the United States of jurisdiction over him. XXXIV, 406, AugKst^ 1873. Nor does a soldier, after having- been dishonorably discharged ])y sentence, remain liable to the military jurisdiction, for desertion or any other military offence conmiitted Ixfore discharge, 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, Noveiaber, 1870: XXXII, 190, Decemler, 1871; XXXIII, 354, Septemher. 1879.; XLI, 228, J/?///, 1878; Card T614, January, 1900. Nor can a person, who, liy reason of acceptance of resignation, dis- missal, discharge, &c., has become whollv 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 dis- covered till after he had left the army. XXXVII, 374, 3farch, 1876. The returning by a dismissed, &c., oificer 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, yocoiiher, 1863; XXXV, 640, jS^>veml>e)\ 187 Jf. Except as to the offences covered by the 60th Article of War, amenability to military jurisdiction ceases on dismissal or othei" sever- ance from the militar}' service, the United States being deemed to haA^e waived the right of prosecution; nor is such amenability for offences committed during a period of service which has been legally terminated, revived by a subseciuent re-entry into service. L, 634, A'Hjasf. 1886. 1028. An honorable discharge releases from and marks the termina- tion of the particular contract and term of enlistment to which it relates only; and does not therefore relieve the soldier from the con- sequences of a desertion conmiitted during a prior enlistment. 49, 442, Octoher, 1891; 53, 179, Ajrril, 1892; 59, 86, April, 1893. Simi- larly held with respect to a discharge without honor. Card 2115, Marcli., 1896. Thes(^ discharges release the soldier from amenability for all offences charged against him within the particular term to which they relate, including that of desertion, except as provided in the 60th Article of War. Card 2041, JLiy, 1896. But a dishonorable discharge (/. e. by sentence) does not relate to any particular contract or term of enlistment; it is a discharge from the military service as a ^It is to be iiiulerHtood that the fjeneral rule of the nonamenal)ility to mnitary trial of officers and soldiers, after discliar render, 1870; XXXVII, 541, ^fay, 1876. 1034. So, where a prisoner confined at the Leavenvyjiili prison after a discharge from the service, was brought to trial by court martial for an offence (desertion) committed not during his confinement ])ut more than a year and a half before he was received at the prison under his original sentence, Ju Id \hvit Sec. 1361, Rev. Sts., furnished no author- ity for such trial, and that the court w as therefore without jurisdiction and the sentence void. XLI. 228, JA/y, 1878. 1035. To give a court martial jurisdiction of the person of an officer or soldier charged with a military ofience, 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 tril)unal, his voluntary appearance and submis- sion for trial is sufficient to give the couit jurisdiction of his person. XXVIII, 27, July, 1868. 1036. It is no o])jection to the assuming by a court martial of juris- diction of a military offence committed b}" an officer or soldier, that he may be amenable to trial, or may actually have been tried and con- ^See, in support of this view, Ex parie Milligan, 4 "Wallace,. 121-123; Jones v. Seward, 40 Barb., 563; In matter of Martin, 45 id., 145; Smith v. Shaw, 12 Johns., 257, 265; In matter of Stacy, 10 id., 332; Mills v. Martin, 19 id., 22; Johnson v. Jones, 44 Ills., 142, 155; (iriflin r. Wilcox, 21 Ind., 386; In re Kemp, 16 Wis., 382; Ex parte McRoberts, 16 Iowa, 605; Antrim's case, 5 Philad., 288; 3 Opins At. Gen., 690; 13 />/., 63. A civilian brought to trial l)efore a court-martial, cannot, ])y a plea of guilty or other form of legal assent, confer jurisdiction upon the cou»rt where no jurisdiction exists in law. Compare People i\ Campbell, 4 Parker, oSti; Shoeuudver r. Nesbit, 2 Rawle, 201; Moore v. Houston, 3 Sergt. & Kawle, 190; Duffield r. Snnth, id., 599. ^This view is approved, and the last sentence of the prisoner declared inoperative by the Secretary of War, in G. C. M. O. 4, War Dej)!.. 1871. Put see now sec. 5 of the Summary Court Act approved June 18, 1898. COUET MARTIAL JURISDICTION. 295 victed, by a criminal court of the State, &c., for a criminal offence involved in his act, Thu.s a soldier may he 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 battery. So, an officer or soldier may be brought to trial under a charge of ''Conduct to the prejudice of good order and military disci- pline" for the military offence (if any) involved — see Sixty-second Article — 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, vis., 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 tw^o jurisdictions and may legally subject the offender to be tried and punished under Ijoth.'^ V, 140, October, I860; XLI, 187, Ajrn'L 1878; XLIII, 210, Fehruary, 1880; XLIX, 657, January, 1886; 65, 268-9, June, 1891^; Card 6862, August, 1899. 1037. It cannot affect the authority of a court martial to take cogni- zance of the military offence involved in an injury committed by a soldier against an officer, that, before the trial, the latter has resigned or been otherwise separated from the army. XXXII, 623, May, 1872. 1038. In March, 1870, the president of the "National 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 "sur- geon," "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 '^ As to the measure of tlie punishment, upon the conviction of the military offence, see § 2.318, post. ^That an officer may be amenable to the civil and the military jurisdiction at the same time for the same act, see cases of Ast. Surgeon Steiner and Captain Howe, 6 Opins. At. Gen., 413, 506. In the former case it is held that the "conviction or aciiuittal 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 latter 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 authori- ties for the civil relations of the sameact. ' ' And see 3 Opins. At. Gen. , 749, and compare IMoore r. Illinois, 14 Howard, 19-20. In a case published in G. C. M. O. 20, Hdqrs. of Army, 1869, an officer was charged with and convicted of "Conduct to the preju- dice of good order and military discii)line," for the killing of a soldier, for which, as "manslautjhter," he had previously l)een acquitted l)v a civil court. And see cases in G. O. is, Dept. of the East, 1869; G. C. M. 0. 50,' Dept. of the Missouri, 1871. See CourtO.Iartial Manual (1901), par. 7, p. 17. 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 full (/ uttarhed is ordinarily properly allowed to have the precedence in its exercise over the other. See Ex parte McRoberts, 16 Iowa, 606; 6 Opins. At. Gen., 423; G. O. 25, Hdqrs. of Army, 1840. 29<3 COURT MARTIAL JURISDICTION. by the convening authority, who thereupon applied to the Seeretaiy of AVar for an order designating a military prison for the confinement of the party in execution of his sentence. Held (upon a reference of the case for opinion, by the Secretary of War), that the proceedings were unprecedented, unauthorized a]j Initio^ and void as a whole and in detail; that the provision in the act establishing the home, that the inmates should be '' subject to the rules and articles of war in the same manner as if they were in the army," even if it could l)e regarded as constitutional, conveyed no authority for such a court as that consti- tuted and composed in this case; and that the sentence adjudged ])y the same could not legally be executed in the manner proposed or oth- erwise.^ XXX, 286, April, 1870. 1039. The discharge of a soldier not taking effect until notice thereof,^ actual or constructive, Jidd that a soldier who committed a militarj' offence on the day on which he was to be dishonorably discharged under sentence l)ut before the discharge was delivered to him (or to the officer in charge of the prison at ^vhich he was also to be confined under the same sentence) was amenable to the militarj' jurisdiction for the trial aiid punishment of such offence as being still in the military service. 27, 8s;-], (k'toher, ISSS. 1040. IFeld that an officer could not. by procuring himself to be, or consenting to being, placed under a ''conservator"" as a hal)itual drunkard, in the form prescribed by the local law, withdraw himself from the militarv jurisdiction; but that he remained amenable to trial and punishment for offences conmiitted prior to such proceeding and within the period of limitation. So revoitimended in the particular case that the officer be brought to trial for certain offences (duplica- tion of pa}^ accounts) committed prior to such proceeding. 63, 358, Fehruary, 189J^. 1041. The jurisdiction of courts martial is non-territorial. In a case' of an oflicer who exhibited himself in a drunken condition at a public ball in Mexico, held that his offence was cognizable by a court martial of the LTnited States, subsequently convened in Texas ))y the depart- ment commander. This for the i-eason that the military jurisdiction does not recognize territoriality as an essential element of military offences but extends to the same wherever committed: a principle which is amply confirmed In' the comprehensive provision of the 04th Article of War.^' 48, 52, Jamiary, 1891; 64, 64, Fehruary, 1891,. ' It i.M inaccurately stated in tlie report of the case of Renner v. Bennett, 21 Ohio St. 4.34 (December, 1S71), that no inmate of the National Home had ever been .su1)jected to a trial by court martial. The instance referred to in the text, however, is the only one known of such a trial; and in this case the proceediniis were on the repi)rt of the Judjie-Advocate (General, declared to he void ab initlu and wholly inoperative l)y the Secretary of War. 'See § 1158, post. ^See G. C. M. O. 11, 1)e])t. Texas, 18!)4. DEED. 297 D. DEED. 1042. An act of Cong-ress authorized the Secretary of War .simply to "crtZt " to a city certain pier.s. Ildd that the term ''cede" called for a simple absolute grant, and that a deed of bargain and .sale for a valuable consideration was not the correct form of transfer; fur- ther, that as the authorit}' was in terms to cede^ without more, the Secretary would not be empowered to attach to the grant any cove- nants or conditions as to the use or care of the piers or otherwise. Should the city hereafter permit its piers to become an obstruction to navigation, there is a remed}' provided hy law. LIII. 381, Ajjril, 1887. 1043. Certain lands were granted to the United States for canal pur- poses, and it was expressl}^ stipulated in the deed that the same should be "occupied, used and emplo^^ed in and for no other use or ol)ject whatever. " A revocable license was granted by the Secretary of War to a bridge company to enter upon and lay a temporary railway over a part of such lands. Held that this was a mere permission for a tran- sient use not inconsistent with the grant; and that, whether the stipu- lation in the deed was construed to be a mere covenant or a condition subsequent, there was here no such diversion of the premises from the purposes for which they were granted as to work a forfeiture.^ LV, 37, Sejytemher, 1886. 1044. No formal acceptance of a deed, apart from the delivery, is necessary, and in the practice of the War Department a formal accept- jtnce is not usually given. An acceptance may be presumed from a variety of circumstances, such as placing the deed on record, posses- sion of the deed, the conveyance being beneficial to the grantee, the exercising of ownership o^'er the propert}^ conveyed, &c. Thus where the Secretary of War secured in 1871, under sec. 18 of the act of July 17, 1862, a deed to a certain piece of land for use as a cemetery, which deed was duly delivered, placed on record, and forwarded to the War Department, and the land was so used until 1880, at which time the Secretar}" of War declined- to accept the said deed of 1871, it was held that the deed had long since been legallv accepted, vesting the title in the United States, that the subsequent refusal to accept it, did not divest the title, and that, in the absence of authorit}" from Congress, ^See 2 Washburn on Real Property, 6; McKehvay v. Seymour, 29 N. J. Law, 231; Chapin v. School Dist., 35 N. H., 452; Thornton r. Trammel, 39 Ga., 202. 298 DEFENCE. the Secretary of War could not convey it to other parties. Card 3790. Jan uarij, 1898. 1045. The owner of a certain tract of land subject to overflow from the government reservoir system at the headwaters of the Missis- sippi river, conveyed to the United States by a deed, duh^ executed, acknowledoed and recorded, the perpetual right to overflow the said tract for a nominal consideration. Subsequently he asked that the deed be cancelled and another and larger consideration be paid him for the easement. II(M that the Secretary of War had no authority to cancel the deed, or to release the easement conveyed b}^ it. Card 3782, January, 1898. 1046. An act of Congress authorized and directed the Secretary of War to sell a certain parcel of land at public auction and to convey the same to the purchaser. The act also prescribed in detail the man- ner of advertising, &c. //t/c/that the deed should preferably contain recitals showing that the provisions of the act of Congress under which it was given were complied with. Card 631, Noveinl)ei\ 189^. DEFENCE. 1047. In order that he may not be embarrassed in making his defence, the accused party on trial ])efore a court martial should l)e su])jected to no restraint other than such as may be necessary to enforce his pres- ence or prevent disorderly conduct on his part. Except, therefore, in an extreme case, as where, the accused being charged with an aggra- vated and heinous oftence, there is reasonable ground to believe that he will attempt to escape or to commit acts of violence, the keeping or placing of irons upon him while before the court will not be jui^tifled.^ Even in such a case it will be preferable to place an ade(]uate guard over him. XXXI, 102, Becemher, 1870; XXXII, 274, 033, January and jrUmher, 1890; 60, 257, June, 1893. 1051. An officer having had a verbal altercation with another officer (of superior rank) in which the latter had (as he, the former, repre- sented) used invidious language toward him and threatened his life, addressed to the latter, on the following day, a highly al)usive and insulting communication in writing. On his being brought to trial for this offence, the court-martial sentenced him onh' to. be repri- manded — on account, as they expressed it, of the ''great provocation" received by him. Ilrld that the proper redress of the accused in such a case was by complaint to the proper superior and the preferring of charges: that the course taken bv him was unmilitarv and unbecomino- the language used by the other, however reprehensible, constituting no legal provocation and no defence to his act as charged. 65, 285, June, 1891^. DEPOSITS. 1052. lltld, under Section 1306, Rev. Sts., that a soldier, having sav- ings on deposit as authorized by Sec. 1305, Rev. Sts., was not entitled to interest on the same after the date of his dishonorable discharge under a sentence imposing the same; although the discharge certificate, by reason of the soldier Ijeing subjected to a term of confinement adjudged by the same sentence, was not delivered personalh^ to the soldier but to the commanding officer to retain in trust for him pend- ing his confinement. L, -liU. July, 1886. DESERTION. 1053. Desertion is an unauthorized absenting of himself from the military service, b}' an officer or soldier, with the intention of not returning. In other words, it is the violation of militar}^ discipline familiarly known as absence without leave (whether consisting in an original al)senting without authority, or in an overstaying of a defined leave of absence) accompanied liy an animius manendi, or non rever- tendl : this animus constitutino- the eist of the oflience. In order to 300 DESERTION. establish the commission of the specific offence, both these elements — the fact of the unauthorized voluntary withdrawal, and the intent per- manently to abandon the service — must be proved. The intent may be inferred, not indeed from the fact of absenting alone, but from the cir- cumstances attending this fact, and here the duration of the absence is especially material. Thus the circumstance that the absence has been exceptionally protracted and quite unexplained will in general furnish a presumption of the existence of the necessary intent. An unauthor- ized absence, however, of a few hours, terminated by a forcible appre- hension, may, under certain situations, be sufficient evidence of such intent and thus proof of a desertion; while an absence for a consider- able interval, unattended 1)}^ circumstances indicating a purpose to 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 compulsor}^ or volun- tary), must be considered together. Each case nnist lie governed l)y its own peculiar facts, and no general rule on the subject can be laid down. VIII, 109, MarcK ISGJ^; XXVI, 346, July, 1868; XXXIII, 128, July. 1872. 1054. 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 govermnent funds, held., on his being arrested some months subsequently in the United States, that he was clearly chargeable with the offence of desertion.^ Ill, 230, July, 1863. So where an officer having been guilty of sundry embez- zlements and frauds, and become involved in de])t, and being on the point of being placed in arrest, obtained, by means of wholh^ false representations, a brief leave of absence from his post for the expressed purpose of visiting a certain place named; and was subsequently appre- hended at a place quite other and much more distant than that desig- nated, and while rapidly traveling en route for a still more remote locality; — held., in the absence of any evidence to rebut the presump- tion thus raised, that he was properly chargeable with having absented himself with the animus of a deserter. XXXVIII, »»22. June, 1877. 1055. In trials of desertion it is not necessary to introduce evidence as to the date of enlistment unless the same is alleged in the specifica- tion. Card 2814, January, 1897. 1056. That a soldier has been chai'cjed ^ith. a desertion is no evidence iSee G. O. 332, War Dept., 1863. DESERTI01S-. 301 that he has committed the otfence. II, 520, Jnnr^ 1S63. So hdd that a mere entry on a morning report book, descriptive roll, or other official statement or return, that a soldier deserted on a certain clay, was not legal evidence of a desertion by him, but was evidence only that he had been cJiarged with desertion/ XXII, 15, March., 1866. So, a report £rom 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 insufficient proof of the fact of desertion, upon a trial of the soldier for that offence." XII, 28, Octoher, 186 J^. Held also that an entry upon a report of prisoners that an accused deserted on a certain day and was subse- quenth' apprehended as a deserter was not legal evidence of the fact of desertion, upon his trial for that offence. XXXVII, 590, June, 1876. Similarly Jield that the mere statement of a lirst 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 place, 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, 640, June, 1877. The fact that a soldier has been dropped from the rolls as a deserter is not legal evidence to proA'e the fact of desertion on a trial for that offence. XLIX, 118, June., 1885. 1057. The nature of the offence of desertion is well illustrated in cases of escape. The mere fact that a soldier, while awaiting trial or sentence, or while under sentence (and not discharged from the serv- ice) escapes from his confinement, is not proof of a desertion on his part, since he may hare had in view some minor object, such as the procuring of liquor, &c.^ But an escape, followed by a considerable absence, especially if the soldier is obliged to lie forcibly apprehended, is strong presumptive evidence of the existence of the intent necessary to constitute the crime. So, though the absence involved may be com- paratively brief, the circumstances accompanying the escape or attend- ing the apprehension, ma}' be such as to justify an equally strong 1 Compare G. C. M. O. 33, Dept. of the Missouri, 1875. '■^Compare Hanson v. S. Scituate, 115 Mass., 336. ^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 con- viction of desertion is disapproved on tlie ground that the evidence sliowed "merely an escape from the guard house witliout intention to leave the service or the vicinity of the post." And see in this connection Samuel, 324, where to be "discovered," after a short absence, "in the i)ursuit of some accidental temporary object, though perhaps otherwise illicit," is instanced as not indicating an intent by the offender " to sever himself from the service." 302 DESERTION. presumption. An escape, with intent not onh' 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 natiire of the offence which iwaj be involved, there is properh^ no substantial distinction between an escape while awaiting trial or sentence and an escape while in confinement uijder sentence. An escape indeed from an imprisonment imposed by sentence would probabh' be more likely to be characterized by an a7iimus non rever- tendl than an escape from a merely preliminarv confinement in arrest. So. an escape from confinement while awaiting trial upon u grave charge, which must entail upon conviction a severe punishment, would naturally be more generall}^ so characterized than an escape from an arrest upon a charge of inferior consequence. Undoubtedh', in the great majority of cases, escape is desertion:' the precedents however show that it is not necessarily so; and, upon the mere fact alone that a soldier has liberated himself from military custody, it is not just to convict him of having designed to dissolve his contract and permanentlv abandon the military service. XXXI, 282, Ajrnl, 1871; XXXV, 026, Octoler, 1871^; XXXVII, 291, 597, January and June, 1876; XXXVIII, 43, Ajyril, 1876; XLI, 119, Feh- ruary, 1878; LIII, 35, Septemher, 1886. Of course an escape from legal military custodv is alwa^'s an offence, and the soldier who has escaped may (where his act does not amount to desertion) be brought to trial for such offence as "conduct to the prejudice of good order and military discipline."' X, 574, Xovemher, 186^. 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 militarj' service.^ XXXV, 626, Octo- l>er. 187 J^. 1058. Jleld to be no defence to a charge of desertion that the accused, at the time of the enlistment which he is charged with having aban- doned, was an unapprehended deserter from the army; an enlistment of a deserter being not void but voidable ovAj. XXXIV, -1:99, Oeto- he7\ 1873; XL VIII, 203, Beeember, 1883. 1059. 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 palliate, not excuse, the offence committed. XXXI V, 411, August, 187S. So, in a case of 'See cases published in G. C. M. O. 14, H. Q. A., 1880; do. 40, 44, kl. 1882; do. .31, kl, 1884; do. 279, Dept. of the East, 1885; do. 11, Dept. of the :Mo., 1885; do. 18, Dept. of Cal., 1877; do. 125, Dept. of the Dakota, 1882; do. 54, Id., 1885; do. 5, Dept. of the Platte, 1873; do. 35, Dept. of Texas, 1875; do. 54, id., 1885. '•^ But see now sect. 5 of the Suinniary Court Act, approved June 18, 1898. DESERTION. 303 a Swiss, who, having* enlisted in our army, deserted after two years of service, htld that it was no defence (though, under the circum- stances, matter of extenuation) that his act had been induced by an intense nostalgia or maJadie du jxiys. XXVIII, 496, April, 1869. So, held., in a case of a desertion b}" a German, that the fact that he had received a notification from the military authorities of the North German Empire to report at home for military dut}^ under the pen- alt}' of being considered as a deserter from the German arm}-, consti- tuted no defence to a desertion committed by him from our service.^ XXXIV, 411, Augast, 1873. 1060. It is however a complete answer to a charge of desertion before a court martial, that the accused has previoush' been "restored to duty without trial," as sanctioned by army regulations, provided he has been so restored by competent authority', i. (., the commander who would have been authorized to convene a general court for his trial: otherwise, however, when so restored b}' a superior not duly authorized. VI, 418, October, 1861,.; 18, 302, August, 1887; 21, 223, Decerrd)er, 1887. 1061. The forfeiture of the rights of citizenship, and the incapacity to hold office under the United States, imposed upon deserters by the act of March 3, 1865 (Sees. 1996, 1998, Rev. Sts.), can be incurred only upon and as incident to a conviction of desertion by a general court martial, duly approved b}' competent authority.' XXXII, 370, March, 187-2; XXXIII, 221, August, 1872; XXXV, 464, July, 187 I^; XXXVIII, 434, FSruary, 1877; XXXIX, 433, Mirch, 1878; XLII, 30, Xovemher^ 1878; 3, 221, Fehruary, 188J^; 42, 408, August, 1890; Cards 248, August, 189 J^; 2934, February, 1897; 3095, Ajjril, 1897; 4513, July, 1898. These disabilities, though attaching to ever}^ such conviction, may be removed b}' an executive pardon of the otl'ender. XXXV, 85, January, 1871,; 42, 373, August, 1890; 56, 56, October, 1892; 63, 494, February, 1891^. But whether a soldier duly convicted of desertion and dishonorably discharged the service may vote at a State election would be determined by the law of the particular State. Card 429, October, 189 J,. 1062. The forfeiture of pay and allowances prescribed for deserters by pars. 129, 1513, 1514, A. R." (1380 and 1381 of 1895; 1557 and 1558 of 'As to the principle of the right of expatriation, as asserted in our pubhe law, see Sec. 1999, Rev. Sts. ^Such is believed to have been the uniform course of ruling in the civil courts. See State v. Symonds, 57 Maine, 148; Holt v. Holt, 59 id., 464; Severance v. Healey, 50 N. Hamp., 448; Goetcheus v. Matthewson, 61 N. York, 420 (and 5 Lansing, 214; 58 Barl)., 152); Huber v. Reily, 58 Pa. St., 112; McCafferty v. Guver, 59 id., 110; Kurtz V. :\rothtt, 115 U. S., 487,501. As to the lialjility to make good to the United States the time lost hi/ a desertion, see FoRTY-EiGiiTii Article. 304 DESERTION. 1901) can be imposed, in any case, only upon a satisfactory ascertainment of the fact of desertion. Tlae same may indeed legally be enforced in the al^sence of an investigation b}^ a military court, as, for instance, upon the restoration to duty without trial, by the order of competent authority, under the Arm}" Regulations, of a deserter as such. But in general, in this case equalh" as in that of the statutory liability (see § 1001, c/y^A /), the forfeiture can safely be applied onh^ upon the trial and conviction b}- court martial of the alleged deserter. VII, 325, Jfcwch, 1864' The conviction must of course be duly approved; if it be dis- apjr/'orcd, the soldier cannot legally be subjected to the forfeiture, since he cannot be treated as a deserter in law. XXVII, 2G2, Sep- temher, 1868; XXXV, 638, October, 1871^; XXXVI, 82, Novemher, 1871i.. Nor can he be subjected to the forfeiture if he is acquitted., though the finding be disapproved by the reviewing authority. XXXI, 19, j^ovemher, 1870. A removal, in orders of the War Department, of a charge of desertion entered by mistake upon the i-olls against a soldier, operates to relieve him of any and all stoppages which have been charged against his pay account for forfeitures authorized by the Army Regulations in cases of deserters. XXXIX, llo, February., 1878; XLI, 518, March, 1879. 1063. The Supreme Court of the United States in U. S. v. Landers, 92 U. S. 79, said that for the purpose of determining the rights of the soldier to receive pay and allowances for past services, the fact of desertion need not be established l)y the finding of a court martial; that it is sufficient to justify a withholding of mone3's that the fact appears upon the muster rolls of his company. Held, therefore, that an order directing discharge without honor on account of desertion is, for administrative purposes, conclusive as to the fact of desertion. Card 7232, November, 1899. B}^ this is meant that the fact that a soldier has been discharged without honor on account of desertion is sufficient evidence that he did desert, to justify the Pa}' Department in withholding pay and allowances due at the time he was charged Avith desertion. But this should be held to be subject to the power of the Secretary of War to decide with reference to any pending question (any unexecuted matter) within the jurisdiction of the admiiiistrativo department, that although the discharge cannot be set aside it may be held on sufficient evidence that, notwithstanding the discharge without honor by reason of desertion, the man was not a deserter. Card 8355, Jnn.', 1900. 1064. 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 property.^ So, where it 'See § 824, (inte. DESERTION. 305 was proposed to sell certain private property belonging to and left by a deserter and devote the proceeds to the post fund, Jidd that there was no legal authority for such appropriation l)y the military author- ities or the Government. XXXV, 454, June^ 187 Jf.. So, a soldier, by reason of having deserted, does not forfeit local bounty money which has been paid him upon enlistment or subsequently, or any other money found in his possession upon his arrest. And such money can- not legally be withheld from him, to be appropriated to a regimental or post fund or any other purpose, but, being his own personal prop- erty, unaffected by his offence, must be treated as such. XIII, 329, February, 1865; XV, 128, August, 1865; XVI, 168, 595, May and Sejjtemher, 1865; XXV, 400, 3fa7'ch, 1868. 1065. A deserter is not chargeable under par. 124, A. R. (126 of 1895; 137 of 1901), with the expenses of transportation therein specified, if his conviction has been duly disapp?'Oved; such disapproval l)eing tanta- mount to an acquittal. L, 105, March, 1886; Card 2121, March, 1896. 1066. Where a sergeant was sent to identify a deserter, supposed to be serving under an assumed name in another organization, with a view to the latter s apprehension, held that the sergeant was not a "witness" (/. e. at the trial) within the meaning of par. 126, A. R. (137 of 1901), and that therefore the cost of his transportation was, under said para- graph, a proper charge against the deserter as expenses paid for apprehension. Card 3556, October, 1897. 1067. Expenses incurred by enlisted men in the pursuit of a particu- lar deserter and therefore on account of his desertion, ma}' properly be charged against him under par. 125, A. R. (136 of 1901), notwith- standing the fact that the person apprehended as such deserter proved to be the wrong man. Card 3185, May, 1897. 1068. The expense of tlie transportation of a convicted deserter, incurred in the course of the execution of his sentence, is not charge- able against the deserter under par. 124, A. R. (§ 1065, ante), but must be borne by the United States. 52, 21, February, 1892. 1069. Where a deserter was acquitted by court martial of stealing certain property, held that such acquittal did not relieve him from responsibility for its loss, the same having been caused hj his deser- tion, as found by a board of survey. Card 721, December, 189Jf. 1070. Par. 126, A. R. (see § 1065, ante), provides that "a soldier con- victed by a court martial of absence without leave will be charged with the expense incurred in transporting him to his proper station." Held., that this authorizes a stoppage for transportation and commu- tation of rations for himself and the guard sent after him. Cards 6068, March, 1899; 6375, May, 1899; 7180, October, 1899; 9177, October, 1900. 16906—01 20 306 DESERTION. 1071. The reward of thirty dollars, made payable by par. 156, A. R. of 1863, as amended b}' G. O. 325, War Dept. 1863, is not due merely on the apprehension of a deserter: he must also be delivered "to an officer of the armj' at the most convenient post or recruiting station."' XXVIII, 539, xl/>/'v7, 1869. 1072. The amount of the reward— to cite from G. O. 325 of 1863— is in full "for all expenses incurred in apprehending, securing, and delivering a deserter." Disl)ursements made by a civilian, where no arrest is eflfected, are at his own risk, and cannot legally be reimbursed by the military authorities. XX, 470, March., 1866. 1073. The legal lialjility imposed upon the soldier by army regula- tions, to have the amount of the reward stopped against his pay, is quite independent of the ■])%inis1iinent which may be imposed upon him by sentence of court martial on conviction of the desertion. Such stoppage need not be directed in the sentence: courts martial indeed ha,ve sometimes assumed to impose it, liive an ordinary forfeiture of pa}^, but its insertion in the sentence adds nothing to its legal effect. Xil, 326, Fehruary, 1865. 1074. Where a soldier, charged with desertion, is acquitted.^ or where, if convicted, his conviction is disapiyroved by the competent reviewing authority, he cannot legally be made liable for the amount of a reward paid or pa3'able for his arrest as a deserter, since in such cases he is not a deserter in law. XXVI, 347, July, 1868; XXX, 47, Septemher, 1869. Similarly held where the acquittal was disapproved hy the reviewing authority. 36, 259, Novernher, 1889. 1075. Where a soldier, for whose apprehension as a supposed deserter the legal reward has been paid, is subsequently brought to trial upon a charge of desertion, and is found guilty not of desertion but only of the lesser and distinct offence of absence without leave, he clearly can- not 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 offence — the court martial — having pronounced that it was not desertion, the Government ^The actual payment of the compensation in such cases is authorized by the annual army appropriation acts, Avhich, in appropriating for the incidental expenses of the Quartermaster I)ei)artnK'nt, inckide as an item — "for thea])i)rehension, securing and delivering of deserters, and the exj)enses incident to their pursuit." The fact of the offer of a reward for the arrest of a deserter does not authorize a breach of the peace or conunission of an illegal act in making the arrest. See, in this connection, Clay y'. United States, Devereux (Ct. Cls. ), 2.5, in which an officer, who, under the orders of a sui)erior, without ])reviously ])rocuring proi)er autliority from a civil magistrate to enter and search, had broken into a dwelHng liouse for tlie purpose of securing the arrest of certain (leserters, was held lo have committed an unjustifialile trespass, and his claim to ]>e reimbursed by the United States for tlie amount of a judgment recovered against him on account of his illegal act was dis- allowed bv the Court of Claims. DESEETION. 307 i.s 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. Moreover such action would be directly at variance with par. 124 A. R. (li'6 of 1895; 137 of 1901), which fixes such liability upon the soldier tried, in the event onh" of his conviction, of deser- tion.^ unless indeed the sentence of the court expressly stoj)s the amount.- XXVI, 347, Jnhj. 1868; XXVII, 255, 306, Octoler, 1868; XXXI, ^QS, June, 1871; XXXIV, 533, 590, N'ovemljer, 1873; XLII, 315, Jimc, 1879; 535, 31arch, 1880; XLIII, 222, February, 1880; 49, 150, Seplemler. 1801. 1076. To entitle a person to the reward for the arrest of a deserter, the party arrested must l>e still a soldier. Though, at the time of the arrest, the period of his term of enlistment may have expired, or he may be under sentence of dishonorable discharge, yet if he has not been discharged in fact, the official duly making the arrest, &c., on account of a desertion committed before the end of his term, becomes entitled to the pa3"ment of the reward specified in the regulations. Similarly held, where the soldier, arrested when at large as a deserter, had been sentenced to confinement (without discharge) and had escaped therefrom. 63, •415, Fehruary, 1891^. 1077. If, in view of the limitation of the 103d Article, the soldier has a legal defence to a prosecution for desertion (G. O. 22 of 1893), the reward is not payable for his apprehension. 55, 264, 8e2JtemT)er, 1892; 59, 428, May, ^1893. 1078. "Where the soldier when arrested had been absent but three days, and was still in uniform, and had not been reported or dropped as a deserter, and his company commander had not the "conclusive evidence" of his "intention not to return," referred to in par. 132, A. R. (133 of 1895; 144 of 1901), held that there was not sufficient evidence that he was a deserter to justify the payment of the reward for his arrest and delivery. 53, 227, April, 1890. 1079. A soldier left his post and was subsequently apprehended and delivered to the militar}' authorities as a deserter by a civil officer. It was supposed that the soldier was a deserter, but upon his return he was adjudged insane. Held that the statutory reward could not be legally paid, bvit advised that the expenses which the officer had incurred be paid him from the appropriation for the contingent expenses of the army; also that a reasonable amount in addition be allowed him for his services and made a part of the expense of caring for and taking the man to the as3'lum. Card 1407, June, 1895. ^This conclusion was concurred in by the Attorney General in 16 Opins., 474. ^See G. O. 38 of 1890, amending A. R. 125 (127 of 1895; 138 of 1901). See also note, page 50, Court-Martial Manual ( 1901 ) . 308 DESERTION. 1080. The arrest made must l)e a legal one. Thus held that the reward Avas not pa3'al)le for an arrest made on the soil of Mexico, invohitig- a violation of the territorial rights of that sovereignty. An act done in violation of law cannot be the basis of a legal claim. LV, 412, March, ISSS; 37, 495, Janaari/, IS90; Card V,)Q1, January, 1896. 1081. Where the deserter was not arrested by, but Kurrendered him- self to, the civil official, who in good faith took him into custody and securely held and ^\x\y delivered him, advised that there had been a substantial apprehension for the purpose of reward and that the reward was properly payable. ' LII, 293, Jme, 1887; 58, 134, FSruary, 1883; Card 1290, April, 1895. 1082. The deliver}' should be personal and manual on the part of the civil official. Where a soldier who had deserted was sentenced to a penitentiary as a horse thief, and at the end of his term of imprison- ment a U. S. marshal caused information that he was a deserter to be conveyed to the commander of a neighboring militar}' post who there- upon had him arrested and brought to the post, held that the marshal was not entitled to claim the reward. 60, 241, November, 1891. 1083. So, where a civil official merel}' informed a captain of artillery that two soldiers serving in his battery were deserters from the Bat- talion of Engineers, held that, though such information was correct, the official was not entitled to the reward; and that the amount of the same, which had l)een erroneously paid him on the certificate of the captain, should be charged against the latter under par. 736, A. R. (f)54 of 18i)5). 34, 298, Augmt, 1889. And see 37, 495, Jan nary, 1890. 1084. Under pars. 124 and 126, A. R. (135 and 137 of 1901), the delivery of a deserter to a detachment sent in pursuit of him entitles the civil officer who made the arrest to the reward. Under par. 126, the expense of transportation of the deserter from place of delivery to his station or the place of trial, is a distinct charge not included in the reward. Card 3405, July, 1897. 1085. The fact that a deserter was discharged on habeas corpus pro- ceedings on the ground of minority at enlistment, is not ground for refusal of payment of reward for his apprehension. Card 3717, Dcomher, 1897. 1086. The reward should be withheld where there is evidence of col- lation between the alleged deserter and the civil official. Adrisedthut a suspicion of such collusion was properly entertained in a case where the soldier, after an absence of but a few days, voluntariW surrendered himself at or near the post of delivery to a policeman who turned him over, without expense or difficulty, to the military authorities 'SeeCirc. 1, A. G. O., 1886. DESERTION. 309 who did not treat him as a deserter but caused him to be charged, tried, and convicted as an absentee without leave only. 44, 64, 100, JSfovera- htt\ 1S90. 1087. An officer of the customs, empowered by law to make arrests of persons violating the revenue laws, but having no such general authority as is ordinarily possessed b}^ peace officers "to arrest offend- ers" (according to the teruis of the act of Oct. 1, 1890, authorizing certain civil officials to arrest deserters), held not entitled to be paid the regulation reward for the apprehension, &c., of a deserter from the army. 46, 397, Ajrnl, 1891. 1088. ILld that a justice of the peace of Idaho was not, b}' the laws of that State, a peace officer or authorized to arrest offenders, and was therefore not within the terms of the act of Oct. 1, 1890, or legally entitled to be paid the reward for the arrest, &c., of a deserter. Such justice ma}' by his warrant authorize and thus cause arrests, but actual arrest pertains, under the laws of the State, to another class — sheriffs, constables, city marshals and policemen. 57, 91, Decemhe7\ 1892. But held that a member of the Indian police, established under the regula- tions of the Indian Office, was a civil officer having authority to arrest offenders, and was entitled to the reward for the arrest of a deserter.^ Card 316, Octol^er, 1891^. 1089. Par. 124, A. R., as amended by par. II, of G. O. 160, Adjutant General's Office, 1899 (A. R. 135 of 1901), in addition to making pro- vision for the payment of a reward of $30 to a civil officer for the appre- hension and deliver}" of a deserter from the military service provides that the officer making the arrest "will also be reimbursed for actual cost of tickets over the shortest usually traveled route for himself to and from" the place where the deserter is delivered to the military authorities and for the deserter to such place, the total amount not to exceed $20. Held., that the phrase "actual cost of tickets" would not include an expenditure for carriage hire, but pay- ment of items not contemplated by the regulations and not to exceed $50.00 in all (including the reward), may be paid by special authority of the Secretary of AVar under the appropriation act (of March 3, 1899), making provision for the payment of reward and expenses. Cards 85S6, ./-////, 1900; 8916, Stj^teuiher^ 1900. So where a deserter from the I' nited States Army in Porto Rico surrendered to the United States Minister in Venezuela, and the latter sent him back to Porto Rico, ])ut while holding him, incurred an expense of thirty-six dollars for his board, it was held^ that the expenditure being less than tifty dollars and not being an item provided for in the regulation, should, iSee Circ-. 12, A. G. O., 1894, revoking par. 1, Circ. 20 of 1893. 310 DESERTION. before pa^'inent, be specially authorized by tlie Secretary of War. Card Ts-W. May. 1900. 1090. Tlie law authorizes the payment of a reward ''for the appre- hension, securing and delivery of deserters." In practice the word "deserters" as here used is construed to include soldiers charged with desertion and is not limited to soldiers convicted of desertion. The reward would therefore be payable though the soldier were subse- quently discharged without trial. Card 8273, 2ray, 1900. 1091. Circular No. 11, A. G. O., 1883, declares that the reward shall not be paid where the deserter, at the time of arrest, "is serving in some other branch of the army," &c. Thus held that the reward was not payable for the arrest of a deserter from the cavalry, who, subse- quentlj^ to his desertion, had enlisted in an infantry regiment in which he was serving at the date of the arrest. 65, 235, June., 189Jf. 1092. Where a civil official, having made an arrest of a deserter, concealed him from the military authorities and afterwards 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. 51:56, Rev. Sts. XLI, 481, Deceml)et\ 1878. 1093. Everj" desertion includes an absence without leave. Upon a trial for desertion, the accused is tried also for the absence without leave involved in the offence charged.^ If acquitted, unthout reserva- tion, of the desertion, he is acquitted also of the lesser offence. If convicted, as he may be, of the lesser offence only, under a charge of the greater, he is acquitted in law of the latter. XXXIII, 123, Jidy, 187'2. See § 1359, j^ost. 1094. The right of the United States to arrest and l)ring to trial a deserter is paramount to any right of control over him by a parent on the ground of his minority.^ 58, 287, March., 1893; Card 1967, Janu- ary, 1896. 1095. Enlisting in the enemy's army by prisoner of war is desertion, unless submitted to as a last resort to save life or escape extreme suf- fering, or to obtain freedom. Thus held in a case of a U. S. soldier who entered the service of the enemy from Andersonville, Ga., in the civil war, that the burden of proof was on him to establish that he resorted to such enlistment with design of effecting his escape and rejoining his own arnn^; and that his abandoning such enlistment and coming within our linos at the ffrst opportunity was material evidence of such a design. 43, 141:, Octoher, 1890; 51, 100, December, 1891. 1096. A soldier who had been extradited from Mexico solely on a 1 See 13 Opins. At. Gen., 460. 2 In re Cosenow, 37 Fed. Rep., 668; la re Kaufman, 41 id., 876. And compare In re Grimley, 137 U. S., 147, and In re Morrisgey, id., 157. DESERTION. 311 charge of theft, held not liable tb trial as a deserter; the principle that a person extradited on account of a certain alleged offence is exempt from trial on any other criminal offence^ being deemed applicable where the other offence is a military one. 37, 495, and 38, 167, Jan- iianj^ 1890; 49, 62, September^ 1891. A deserter from our army cannot, in the absence of any international convention allowing it, legally be arrested as such in Mexico and brought thence into Texas. 39, 458, March, 1890. 1097. The amenability to trial of a deserter from an enlistment in the arm}^ is not affected b}^ the fact that when he enlisted he was a deserter from the Marine Corps. XLVIII, 203, Becemher., 1883. 1098. Held that a deserter from a volunteer regiment was, after the disbandment of the volunteer army, no longer amenable to the mili- tary jurisdiction, having become thereupon a civilian. 42, 406, August, 1890; 50, 192, N(memher, 1891; Card 494, October, 189J^. The liability of such a deserter to trial and punishment by court martial continues, notwithstanding the muster out of his own regiment, until the entire volunteer army has been mustered out of service. Cards 6410, 6433, May, 1899; 6593, June, 1899; 9005, Sejjtemler, 1900. 1099. A civil employee of the Quartermaster Department does not become liable as a deserter by abandoning his employment. L, 226, Ajrril, 1886. 1100. The so-called "deserter's release," provided for by G. O. 55 of 1890, is accorded when, by reason of the period which has elapsed since the end of his term of enlistment, the deserter could success- fulW plead the statute of limitation to a prosecution for his desertion. This period is complete at the expiration of two years from the end of his term of enlistment, exclusive of absences meanwhile from the United States. But where a soldier, who would have been eligible for such release on May 9th, 1894, was, in February preceding, arrested, brought to trial, convicted and sentenced to be dishonorably dis- charged, and was so discharged accordingly, hM that he was not within the privilege of the general order, and that the release could not l)c accorded him.*^ 65, 189, June, 1891^; Card 4130, May, 1898. 1101. The '• deserter's release" is intended for deserters in whose favor the limitation of the present 103d Article of War has fully run, and who therefore have a perfect defence to a prosecution. It was designed to secure them against proceedings for desertion and to avoid the expenses to which the Government might be put in the matter of their arrest and trial. But it is not, and cannot, in view of the pro- visions of the 4th Article of War, serve as a discharge from the army. lU. S. *'. Rauscher, 119 U. S., 407. ^ See Circ. 5, A. G. 0., 1894, as to tlie purpose and effect of the " release." 312 DESERTION. The language of G. O. 55 of 1890, which describes it as a release "from the army" is therefore faulty. 52, 326, March, 1S92; 61, 430, Sej)tetnhe,', 1893; 62, 1, October, 1893; 63, 30, Dec&niber, 1893; 347, FSruary. 1891^. 1102. A deserter who has been once dishonorably discharged is not a subject for the "release" — does not belong to the class of persons for whom it is intended, 63, 32, Decemher, 1893. It is designed for soldiers actualh^ in service. In cannot therefore now be given to one who was a soldier of a volunteer organization during the war of the Rebellion. 62, 1, Octoher, 1893. Nor can it ])e issued in a case of a soldier who has deceased. 62, 326, Mare/t, 1892, As it is only issued in cases of deserters who may successfully plead the limitation of the present l(»3d Article, it should not be given where the desertion was committed in time of war. Card 96, JuJy, 1894-. 1103. The persons from whose military record there may be a removal of the charge of desertion, under the act of March 2, 1889, c. 390, are those against whom such a charge is "now standing." Deserters, therefore, whose cases had, at the date of the act, been judiciallv duly disposed of — by trial, conviction and sentence by court- martial — are not within the purview of the statute. LIII, 143, Octoler, 1886; 18, 296, August, 1887; Card 359, Septemher, 1891^. Similarly hdd with respect to deserters restored to duty without trial. In both cases (conviction by court martial and restoration without trial) the charge of desertion no longer remains, but the fact of deser- tion has become a matter of record and cannot be removed. Cards 2021, 2025, January, 1896; 2(569, Octoher, 1896; 2934, Fehruary, 1897. 1104. Held that a soldier had "served faithfully " in the sense of sec. 1 of the last-named act, when, having been sentenced to reduction and continement on conviction of desertion, his sentence had been duly executed, and he had thereupon returned to duty and served for a con- siderable further period in a status of honor. 36, 184, Octoher, 1889. Wliether a soldier served ''faithfully" within the meaning of the act is a matter for the Secretary of War to determine. The fact that a soldier may have l)een tried and punished by court martial does not per se render his service unfaithful. Each case should be decided upon its own merits. Card 3036, March, 1897. 1105. The act of 1889 provides that the charge of desertion shall be removed if the soldier has " served faithfully until * * * May 1st, 1865, having previously served six months or more " * * *. Held that the six months of service need not have been continuous provided they were actually served ])efore May 1st, 1865, and the soldier was in service at that date. 48, 219, July, 1891. 1106. "Where a soldier was insane at the time of his desertion held DESERTION, 313 that the charge of desertion should be removed. Card 670, Novemher^ 18H. 1107. Held that a soldier was not within the description of the "third" division of sec. 2 of the act of 1889, of having been "dis- charged'' from service b}- a court of "competent jurisdiction," who had, as a minor enlisted without consent, been discharged upon habeas corjms by a State court. ^ 32, 313, May^ 1889. 1108. A soldier, who enlisted August 16, 1862, for three j^ears, deserted May 16, 1864, was arrested April 20, 1865, and again deserted Sep- tember 29, 1865. There was thus two charges of desertion standing against him. Under the President's proclamation of March 11th, 1865, all deserters who returned to service within sixty days were pardoned " on condition that they * * * serve the remainder of their orig- inal terms of enlistment and in addition thereto a period equal to the time lost by desertion." And a War Department circular of May 29, 1865, provided that when deserters had been arrested during the con- tinuance of the said proclamation they should be entitled to its benefits. In the particular case under consideration the soldier was arrested dur- ing the continuance of the proclamation and was therefore pardoned on the conditions named therein. He thus became obliged to serve until July 20, 1866, but as he failed to comply with this condition by deserting September 29, 1865, held that both charges of desertion should be allowed to stand against him. Card 1390, Jidy, 1895. 1109. A soldier, who had successiveh' enlisted in and deserted from two companies of the same volunteer regiment, returned in response to the President's proclamation of March 10, 1863, and served out his first enlistment. Held that the proclamation operated as a pardon for both of his desertions, and that he should be treated as discharged from his second enlistment by his restoration to duty in the first. Card 3447, August, 1897. 1110. The act of May 17, 1886, provided that, where a soldier of the war of the rebellion deserted from one organization and within three months enlisted in another, the charge of desertion, if certain facts were shown, should be removed and a certificate of discharge issued from the organization in which he first served. Held that the purpose of this legislation was to change the status of beneficiaries under it from that of deserters to that of soldiers honorably discharged as of the date of their desertion. Card 2090, March., 1896. 1111. Sec. 3 of the act of March 2, 1889, provides for the removal of a charge of desertion if the following three conditions are fulfilled, viz: 1, That the soldier enlisted again within four months of the desertion; 2, that he served such term faithfully; and 3, that such re-enlistment ^ But see the provision as amended l)y act of March 2, 1891 (1 Sup. Rev. Sts. 901). 314 DESEKTION was not made for the purpose of securing bounty, etc. A soldier deserted on December 6. 1861, and enlisted on the 13th of the same month in another regiment, deserted from the latter regiment ou January 8th, 1868, enlisted on the 15th of that month in a third regunent and was honorably discharged from this enlistment. Each of the last two enlistments was made within four months of the desertion in the preceding enlistment and neither of them was made for the purpose of securing bounty, etc. Held^ therefore, that as he served the third enlistment faithfully the charge of desertion pertaining to the second enlistment was properly removed, but that such removal and the con- sequent issue of an honorable discharge did not affect the fact that he did not serve that enlistment faithfull3^ Further held^ therefore, that the charge of desertion pertaining to the first enlistment could not be removed. Card 3928, March ^ 1898. 1112. While the first section of the act of March 2, 1889, provides that the -harge.of desertion standing against a volunteer soldier who served until May 1, 1865, and had previously served six months shall be removed, etc., there is no good ground for holding that the act as a whole contains any provision that would warrant taking May 1, 1865, as the close of the war, so far as a soldier of the regular army is con- cerned, or as a date before which a desertion must have occurred to make sec. 3 of the act applicable. Thus where a soldier who had enlisted in the regular army on March 17, 1861-, deserted August 20, 1865, and eleven daj^s thereafter enlisted in another regular regiment not for the purpose of bounty, etc. , and was honorably discharged there- from, held that the charge of desertion should be removed. Card 3891, Marcli, 1898. 1113. A volunteer soldier, having enlisted in 1861 for three years, deserted in 1862 and within a month enlisted in the navy for one year, from which enlistment at the expiration thereof he received an honor- able discharge. He thus escaped in fact one vear's service under his army enlistment. JLld that his thus avoiding one year's service was not a gratuity within the meaning of sec. 3 of the act of March 2, 1889, and did not preclude the removal under that section of the charge of desertion. Cards 163. August, 189Jf,; 3090, AjnnJ, 1897. 1114. By section 13, of the enrollment act of March 3, 1863, a drafted man who failed to report to the board of enrollment was declared ^* a deserter" and triable therefor by court martial. Held that this section imposed upon him the single duty of reporting to the enrollment board, and to that extent and for that purpose only gave him a military status; that prior to his acceptance or rejection l)y the l)oard, ho was not fully in the military service of the United States, DESERTION. 315 nor a soldier within the ordinary meaning of that term. Where such a drafted man failed to report and subsequently within four months enlisted elsewhere, //tA/upon an application by him to have the charge of desertion removed under the act of March 2, 1889, that not being a soldier in the military service within the meaning of the act at the time he became a "deserter," the same did not apply to his case and that therefore the charge could not be removed. Cards 20-11, 2042, May, 1896. 1115. Sec. 7 of the act March 2, 1887, provides that the charge of desertion shall not be removed if the soldier left his command while in arrest or under charges for breach of military duty. Where a soldier deserted in 1865, while in arrest and under charges for breach of military duty, afte7' the expiration of his term of enlistment, it was held that he was still a soldier at the time he deserted and that there- fore the section named applied in his case and precluded a removal of the charge of desertion. Card 3099, April., 1897. 1116. TLfId that a charge of desertion entered against a soldier in a particular term of enlistment is removed by an honorable discharge from such enlistment. Card 2041, May, 1896. 1117. A pardon does not operate retroactively, and cannot therefore "remove a charge" of desertion. L, 395, June, 1886; 42, 406, August., 1890; 43, 36, Septemher, 1890. It does not wipe out the fact that the party did desert, nor can it make the record say that he did not desert. It cannot change facts of history. 58, 446, Ma/rcli, 1893. 1118. A deserter at large from the volunteer army was drafted in 1864, and served as a drafted soldier until mustered out. Held that his status as such drafted soldier was unaffected by the fact that he was in desertion at the time he was drafted; nor was his status as a soldier in desertion affected by his being drafted or by his service as a drafted man. Card 2106, 2farch, 1896. 1119. Ordinarily desertion would be sufficient evidence that service during the term in which it occurred was not honest and faithful, but if in an exceptional case the Secretary of AVar should decide that it was, notwithstanding the desertion, he would be acting within his dis- cretion under the act of August 1, 1894. The provision in the act of June 16, 1890, that desertion renders service not honest and faithful is limited to the purposes of that act and does not control enlistments under the act of 1894. Cards 2004, January, 1896; 2121, 3£arck, 1896; 3530, Septemler, 1897; 3794, June, 1898. 1120. When a soldier deserts from one regiment and enlists in another he may be held to serve out both enlistments or either of them. In the latter case all that need be done is for the Government to aban- 316 DISBURSING OFFICER^ don the enlistment in one regiment (ordinarily ))v a discharge there- from without honor) and recognize the enlistment in the other. No transfer is necessary. Card 2115, March^ 1896. 1121. There is no law extending amnesty to soldiers who are now deserters from the U. S. arm3\ Card 778, Decemher^ 189Jf.. 1122. The restoration of a deserter to duty without trial under par. 128, A. R. (139 of 1901), does not operate as an acquittal, or relieve the deserter from the forfeitures of pay incurred by operation of law under pars. 1513 and 1514, A. R. (1380, 1381 of 1895; 1557, 1558 of 1901.) L, 122, 3larch, 1S86; 21, 221, December, 1887. Nor does it operate to remove the charge of desertion and substitute therefor that of absence without leave. Card 4076, April, 1898. DISBUESING OFFICER. 1123. A disbursing officer of the army who has paid out public moneys upon vouchers which prove to have been false or forged is personally responsible to the United States for the amount of the loss; and it is the usage of the Government to hold such an officer so respon- sible, however innocent of criminalit}- 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 vipon the Government to prosecute a civil suit against the party chargeable with the fraud, but he may legallv himself initiate such a suit if he desires to do so for his own indemnity. XVI, (535, <)ctol>et\ 1865; XXVIII, 20, 42, August, 1868; XXXII, ^423, March, 1872. 1124. It is in accordance with the usage of the militar}^ service, as well as the general practice under existing laws, for an officer of the arm}' charged with the disbursement of public funds to pursue in his own name and representative capacity the proper legal remedies when such funds are illegallv appropriated 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 an}^ more a public claim of the United States than it is as prosecuted b}^ the disbursing officer in his official capacity. Thus advised, in the case of such an officer, a portion of whose pu))lic funds were in the possession of a bank, as an authorized pu])lic depositar}', at a time when the same stopped paj^ment and went into insolvency, that the officer should lile and prove his claim before the Register in Bankruptcy and prosecute the collection of the same so far as neces- sary and practicable; and furth(M- that a due and reasonable diligence on his part in pursuing the legal measures open to him for realizing the amount for which he was officially responsihh' would furnish the DISBURSING OFFICER. , 317 strongest support to any application, which he might in future prefer, to be discharged from liability for any loss to the United States result- ing from the failure of the depositary. XXXV. 365, J/«y. 187 If.. 1125. Congress, in appropriating money for the new State. War and Navy Building, has provided that the amounts shall "be expended under the direction of the Secretary of War." While the Secretary would thus be authorized to commit the disbursing of the funds employed to any proper person, yet advi^ed^ in view of the policy of the law as expressed in Sec. 1153, Bev. Sts., that the Secretary would properly designate as the disbursing- agent the engineer officer engaged in superintending the work, especialh' since — as provided in said sec- tion — the duty of disbursing would thus be performed without any charge to the United States. XLI, 283, Jaiu-. 1878. 1126. Sec. 362u, Kev. Sts., provides that a disbursing oificer. having on deposit in a public depositary public moneys intrusted to him for the purpose of disbursement, shall '"draw for the same only in favor of the persons to whom payment is made." Where, upon the order of a party to whom the United States was indebted in a certain amount, a disbursing officer made payment of the amount to a firm to which such party was indebted — adiustd that such payment was clearly in contravention of the statute. 53, 239, April, 1892. 1127. Upon construing Sec. 1766, Rev. Sts., in connection with the original act — that of January 25, 1828. entitled '"An Act to prevent defalcations on the part of the disbursing agents of the Government " — JitJd that such section, though expressed in somewhat general terms, properly applied only to bonded disbursing officers.^ 61, 167. August, 1893. 1128. iZtWthat the act of April 20, 1874, c. 117, entitled "An Act to provide for the inspection of the disbursements of appropriations made by officers of the Army." applied only to the inspection of dis- l)ursements of monies appropriated by legislation of Congress. 48, 184:. July, 1891. 1129. Any officer of the United States ""having any public money entrusted to him for disbursement" is a "disbursing officer" within the meaning of Sees. 3620 and 5488. Rev. Sts. ILId, therefore, that medical officers entrusted with mone^-s for disbursement under general orders 116 and 136 A. G. 0. 1898, were such disbursing officers. Card 5269. X'»\inht'i\ 1898. But htJd that the moneys received by the ([uartermaster in charge of a U. S. transport from parties travelling thereon, for meals furnished them can be applied, under Sec. 3618, Rev. Sts., and the act of March 3, 1875 (18 Stat., 41o). to the pur- chase of fresh supplies.' Card 50-18, Octohti\ 1898. ^ But see the general provision of the Ai-my Appropriation Act of June 16, 1892, in regard to the withholding of the pav of oflBcers under this section. •'See Dig. Dec. Second Comp., vol". 3, p. 324. 318 DISCHARGE. DISCHARGE. 1130. The classification of discharges has never been assumed by Congress but has been left by it to the Executive branch of the Gov- ernment. Card 2731, Novemher^ 1896. At i^resent there are three kinds of discharges expressly recognized, to wit: The honorable, the dishonorable, and the discharge without honor. The dishonorable di.scharge is given only in the case of discharge by sentence of court- martial. The discharge without honor is given in the cases first speci- fied in circular 15, Headquarters of the Army, 1893'; but this circular did not create such discharge; it merely gave it a name. Before the issue of the circular and as far back as the rebellion (notwithstanding that it was from time to time theoretically asserted that the only kind of discharges known to the law were the honoral^le and the dishonora- ble, and that all discharges except by sentence of court-martial were honorable) a third kind of discharge was out of necessity resorted to. It i:! now recognized that there is a kind of discharge which is neither honorable nor technically dishonora))le, but must be classified b}^ itself — this is the "discharge without honor." There were many soldiers summarily discharged during the rebellion for causes taint- ing the character of their discharges. In numerous cases the orders were made to read dishonoraUy discharged, although a dishonorable discharge in the technical sense of that term cannot be imposed except by sentence of a court-martial. A summary discharge, cannot be a dishonorable discharge, if the term is used in such technical sense, but it may be for a cause tainting the character of the dis- charge — a discharge manifestl}^ not honorable. Such a summary discharge is now called a discharge without honor. Its name however is only important as a recognition of a discharge, not technicall}^ dis- honorable, but not honorable in fact. (See X, 286, Septeml)ei\ 186J^.) It might not be going too far to say that when soldiers were sum- marily "dishonorably discharged" during the rebellion the order was so worded simply because the soldier had done something to disgrace the service, and could not be in fact honorably discharged. 60, 2-11, June., 1893. Thus where a volunteer soldier under arrest for desertion was ''■dishonora])ly discharged" by order on account primarily of the desertion, held that while his discharge was not technically dishonora- ble, it was what is now called a discharge without honor, and therefore not honorable. Card 2128, March, 1896. The term also covers the sunmiary dismissal of an oflicer. 52, 403, March, 1892; Card 1503, Aiigasf, 1895. 1131. On the question Avhcther a discharge by order (summary) was of the class desigfnated as not honorable, /. (. without honor, held that DISCHAKGE. 319 in the absence of express evidence that such discharge was given on account of an untitness for the service for which the person discharged was culpably responsible, or by reason of fraud in the enlistment, or when the person at the time of his discharge was in a status of dis- honor, /. <^ in confinement under the sentence of a general court-martial or of a civil court, the discharge should be deemed honorable. Card 270, Sej>hmhcr, 1894. 1132. The discharge without honor is not a punishment. When a soldier is discharged before or on expiration of service, he is entitled to a certificate to that effect, l)ut he is not entitled to a certificate of honorable discharge (which is now onl}^ given to soldiers whose service has been honest and faithful) if in fact his service has not been honest and faithful. In such case he has failed to earn an honorable discharge and is given a discharge which discloses that fact — a discharge without honor. ^ This discharge carries with it forfeiture of retained_pay, if any, as an incident, not of the discharge but of the failure to render honest and faithful service. Not being a discharge ''by way of pun- ishment for an offence" (Sec. 1290, Rev. Sts.), forfeiture of travel allowances is not an incident of it." But when a soldier is discharged without trial on account of fraudulent enlistment, or "for disability caused by his own misconduct"" (/. e. "without honor""), travel allow- ances are forfeited; in the first case by reason of the right of the Gov- ernment, on the discovery of the fraud, to rescind the contract of enlistment and thus avoid all unexecuted obligations under it, and in the second under the provisions of the Army Appropriation Act, approved March 16, 1896. Cards 1862, JVovem7>er, 1895; IdO^! Decem- })e)\ 1895; 6569, June., 1899. But a soldier discharged without honor, except for fraudulent enlistment, does not forfeit clothing money due him at date of discharge. Card 2107, March, 1896. 1133. A company of volunteers having in 1862 refused to proceed to a certain point when ordered to go there, was subsequently duh^ mustered out l^ecause of its refusal to obey the order. Held that the members of the company were discharged without honor. Card 1915, Decemher. 1895. 1134. Held that the discharge of a cadet from the United States Military Academy, in 1862, for demerits in excess of the limit fixed, was what is now known as a discharge without honor. Card 2533, August, 1896. ^The discharge without honor has been given upon the remission of a sentence (S. O. 169, A. G. 0., July 26, 1893); also where sentence was set aside on account of fatal defect in record (par. 55, S. O. 257, A. G. 0., 1898). ^Concurred in by the Comptroller of the Treasury under date of Dec. 14, 1895, overruling last ]iaragrai)h of sec. 680 and section 1449, Digest Dec. Second Comp- troller, Vol. 3, 1884-1893. 320 DISCHARGE, 1135. A volunteer officer wa.s .summarily dismissed on account of nnlitness caused l)y his own fault. ILhl, that his discharge was with- out honor. 52, -t03, 2£arch, 1892. Similarly held where the officer was summarily *' dropped'" for absence without leave. 46, 389. Aj/r/L 1801. 1136. But where an officer of volunteers was examined as to his qualilications by a board of officers under "an act to provide for the examination of certain officers of the army," approved June 25, 1864, and was reported mentally disqualified for the duties of his office and was thereupon dismissed by executive order in accordance with the provisions of the act, Jidd that the dismissal Avas in efiect an honorable discharge from the service.' 46, 333, Ajyril, 1891; 65, 31, 2faij, 189^. 1137. A soldier was tried by court martial for offences which, upon convic-tion, would have justified his discharge, Init having been 1138. The statement of character being no part of the discharge, ](iui,d,ei\ 189.'^. 1139. Where a soldier's service has been honest and faithful, held, that discharge without character was improper. Card 2230, April, 1800. 1140. An executed honorable discharge cannot be revoked unless obtained by fraud on the part of the soldier. Merc mistake on the pai-t of the officers executing it will not justify revocation. Card 2700, Octoher., 1896. The same is equally true of a discharge without honor when once duly executed. Cards 2099, 2farch^ 1896; 2423, Jnly^ 1800; 9028, Septemher., 1000. An order directing a dimharcje may of course be revoked or suspended at any time before the discharge ordered has actually taken effect. XXIX, 508, January., 1870. An order purporting to revoke an executed honorable discharge, not obtained b}- fraud, and substituting therefor a dishonorable one, hdd, wholly unauthorized and illegal. VI, 478, Noi'einhev., 1864.; XI, 197, I)eceml>rr, 186^; XX, 584, ^7>r//, 1860; XXV, 541, May, 1808; Cards 2700, sujmi; 1200, 1399, April and Ifay, 1805; 2543, A>/(/mt, 1800. Similarly held, respecting the substitution of an honorable dis- charge for an executed legal discharge without honor, or for an exe- 'SeeCirc. 4, A. G. O., 1891. DISCHARGE. 321 . cuted legal dishonorable discharge. Cards 605, JSfovemher^ 189Jf,; 1382, Mail, ISOo; 2009, 2f<(rch, 1806; 2171, Ajrril, 1896; 6378, July, 1899. 1141. A soldier was duly discharged pursuant to an order from the War Department. The order was issued under a misapprehension in regard to his actual status at the time — a mistake of fact — which if discovered would have deferred or prevented the issuing of the order. Held, that the mistake of fact did not invalidate the discharge; that having been duly executed, it could not be revoked, 61, 121, Sejytern- her, 1893. Cards 1876, November, 1895; 1791, January, 1896. 1142. Where a soldier, by making an alteration in his "descriptive list"' so as to cause it to appear that his term of enlistment, which was in fact five years, was three years only, induced the regimental com- mander to give him an honorable discharge at the end of three years' service; held, upon the fraud being presently discovered, that the dis- charge might legally be revoked and the soldier be brought to trial by court martial under the 99th (now 62d) Article of War. XXI, 390, May, 1866. But where by competent authority an honorable dis- charge was given to a soldier who was at the time in arrest under charges, held that such discharge — no fraud being imputable to the soldier — could not legally be revoked. XXIII, 483, May, 1867. 1143. Where a soldier, before the expiration of his term, received under the 4th Article of War a discharge in due form, though charges were then pending against him, the authority ordering the discharge not having been made aware of such charges, htld that the discharge was executed and could not be revoked with a view to bringing the soldier to trial; that he had, by the discharge, duly become a civilian and was no more than any other civilian under the control of the militarj'- authorities. 50, 295, NoveuJjtr, 1801; Card 1791, January, 1896. 1144. The fact that a soldier has been a deserter does not preclude his receiving an honorable discharge, if either he be restored to duty without trial, or having been tried and sentenced, he yet, by reason of his imprisonment being fully executed or being remitted before the end of his term, is returned to dut}^ and is in the performance of faith- ful service when his term is completed. An honorable discharge then given to him is an authoritative declaration by the Government that he leaves the military service in a status of honor. Thus honorably dis- charged he cannot, by reason of his having formerly deserted, be deprived of any rights to pay, allowances or bounty usually incident upon honorable discharge.^ XXVI, 484, March, 1868. 1145. A soldier while a deserter again enlisted, was allowed to serve such second enlistment, and did so honestly and faithfully; held that ' This opinion is (luoted and adopted by the U. S. Supreme Court in United States V. Kelly, 15 Wallace, 34, 36. 16906—01 21 322 dischargp:. he was entitled at the end of the term, being in respect to this term in a status of honor, to an honorable discharge from it. But this did not affect his other enlistment; as, to that he should be treated as a deserter. 43, 48, SepttmUr, 1890; Card 902, Fclruanj, lS9o. 1146. AA^here a court martial, in imposing dishonorable discharge in connection with confinement, directs that the discharge be first exe- cuted; or where it is reasonabh" to lie inferred 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 connnand that the execution of the discharge be postponed to the end of the term of confinement.' XXXII, 390, 3farch, 1872; 529, Ajyril, 1872; XXXIV, 32, Novemher, 1872; 580, Xovemher, 1873; XXXVII, 22, June, 1875. On the other hand, if the sentence clearly imposes the dishonorable discharge of the .soldier at the end of the term of confinement, the reviewing oflicer is not authorized to direct that he l)e discharged forthwith. XXXVII, ■156. January, 1869. A dishonorable discharge given in the latter case at the beginning instead of at the end of the term, would not be given pursuant to the sentence and should therefore be set aside as void and inoperative, the man taken up again as a soldi(>r and the discharge given at the end of the confinement as directed liy the sentence. Card 5968, M/rrI>, 1899. 1147. Where a court martial sentenced a soldier, in connection witL confinement, to be dishonorably discharged at such date as might be fixed by the reviewing officer, aSee an opinion of the Judge-Advocate General on thin subject, i>ul)lislu'd and approved l)y the Secretary of War in G. O. 71, War r)e]>t., lS7."i. ^See an o])inion to this effect j^ublished, as a])prove(l bv the Secretary of War, in G. O., 90, War Dept., LS72. ^That a discharjie by reason of expiration of term of service .t,nven pending the exe-j cution of a period of conlinement, Avliich extends l)evond the term of enlistment, does not have such effect, see G. ()., 138, A. G. O., 1899; ^Sec. 2 of the actof August 1, 1894 (28 Stats., 216), provides that "no soldier shall be again enlisted in the Army whose service during his last preceding term of enlist- ment has not been honest and faithful." DISCHAEGE. 323 1861^; XXVIII, 250, Novemher, 1868; XXXI, 290, Aj^ril, 1871; XXXIV, 623, Xovemler, 1873. 1150. Where a soldier has been legall}" sentenced to be dishonorabl}^ discharo-ed and such sentence has been duly executed, it is beyond the power of the Executive, whatever the merits of the case, to substitute an lionorable in lieu of the dishonorable discharge. The latter having: gone into effect cannot be undone*/ moreover the soldier, having l^een thereb}' whollv detached from the military service and made a civilian, can not again be discharged from the service until he has 1)een again enlisted into it. XXXVII, 390, March, 1876; 510, May, 1876; XXXVIII, 236, August, 1876; mo. May, 1877; XLI, 465, Novenil)e)\ 1878; Cards 217-1:, Ajjr 11,1896; '277C), December, 1896; ?>S00, January, 1898; 5234, January, 1899; 7448, January, 1900. 1151. The Secretary of War may b}" an act of Congress be authorized and required to amend the rolls and records so as to show that a soldier was honoralily discharged as of the date on which he was in fact dis- honorably discharged, and give him a discharge certilicate to that effect. Card 2047, Fehruary, 1896. 1152. The formal certificate of dlscJuirge signed as required by the 4th Article of War, and furnished the soldier is legal evidence of the fact of discharge, and of the circumstances, when stated, under which it was given. ^ It is furnished the soldier primarily for his use, ))ut not being a record, the statements therein arc not conclusive upon the Government when contradicted b}" record or better evidence. 51, 126, December, 1891. Thus an entry on a certificate of discharge of the date of enlistment is a copy from the original record of that fact. If this entry is erroneous it may be corrected by the AVar Department by substituting a new and correct certificate of discharge or, as is done in practice, l)y endorsing on the old certilicate a statement that the records of the department show, etc. 49, 87, Septemher, 1891. 1153. The discharge of a soldier takes effect when he receives notice tliereof actual (as by the deliver}' to him of the certificate of discharge) or constructive.^ The opinion heretofore held that "the discharge takes effect, like a deed upon delivery" (XXIX, 599, January, 1870 ; MOpins. At. Gen., 274. ■■'Hanson r. S. Soituate, 115 Mass., 336; Bd. of Comrs. r. Mertz, 27 Ind., 103; U.S. V. Wrijrht, 5 Philad., 296. ' ' Officers disoharfred to take effect from a particular anterior date, who do not receive notice of tJieir discharge until sometime afterwards, and who in the meantime con- tinue on dutv, are entitled to pav to the date when notice of discharge was received." Dig. Dec, Second Comptroller, Vol. 1(1869), § 1144. "An officer on detached service at the time his regiment was discharged, and actually performing duty as an officer of said regiment until he received notice of his dis- charge, is entitled to pay up to the date of such notice." Id. § 1146. ■'"The discharge of a soldier can only take effect on the date and at the place where he receives notice, or is legallv chargeable with notice, of his discharge." Decision of the Comptroller, dated April 18, 1900 (Circ. 233, P. M. G. O., 1900). 324 DISCHAEGE. XLVII, 170, June^ 1883) fails to distinguish between the fact of dis- charge and the certiticate of discharge, and is therefore erroneous except so far as it may be held to support the proposition that a dis- charge takes effect upon delivery of the discharge certificate when such deliv^ery constitutes the notice to the soldier that he has been dis- charged. But the discharge certificate — often called the discharge — is not really the discharge; nor is the delivery of it, actual or constructive, to the soldier the onl}^ means of giving him notice that he has been dis- charged. Such delivery would be a proper and effective notice, but to in fact release him from control (when he has been discharged) and inform him verbally or otherwise of his discharge, would constitute equally effective notice. Cards 1570, Jnly^ 1895 ; 1916, December^ 1895 ; 5632, January, 1899. Where a soldier immediately upon enlist- ment was imprisoned on suspicion of being a deserter and "bounty jumper'' but was subsequently released and sent away from the army without a certificate of discharge by an officer authorized to summarily discharge him, heldf that the soldier was thereby discharged, and upon satisfactory proof being furnished that the suspicion against him was erroneous, further held that his imprisonment during the whole of his service being through no fault of his own did not deprive him of his right to a certificate of honorable discharge. Advised that one be issued him. Card 1916, supra. 1154. An officer or soldier actually serving to a given date cannot legally be mustered out or discharged as of a prior date. 44, 450, January, 1891; 46, 101, 223, 243, Marcli and April, 1891; 51, 126, Decemher, 1891. But where certain volunteer officers duly absent from their commands were on May 6, 1865, ordered by the President to be honoral)ly mustered out of service "of date of 15th instant," the said officers to immediately apply by letter for their muster-out and discharge papers, liAd., that they ceased, by virtue of that order, to be officers on the date last named, though the muster-out and dis- charge papers may not have reached them until after such date. Cards 163»;, Octoher, 1895; 1945, December, 1895. 1155. Dishonorable discharge imposed by sentence of a general court martial cannot be executed until the order promulgating such sentence has l^een received at the place where the same is to lie executed. The discharge, if to take effect forthwith, should be dated as of the day on which the order is received; and the soldier is entitled to be paid to include the date of his discharge, if any pay be due him. If confine- ment has also been awarded, the certificate of discharge is in practice committed to the custody of the post commander or other proper offi- cial to }>e held l)y him until the confinement has lieen executed and then delivered to the party entitled to it. 41, 86, May, 1890; Card DISCHARGE. " 325 1767, October^ 1895. But where the records fail to show the actual date of the dishonorable diseharue. Jidd that the date of the order promulgating" the sentence should be taken as the date of the discharge. 42,474, September, 1890; 59,195, Ajrrll, 189S; Cards 1226, A^Ml, 1895; 3S10. Jcnrvary, 1898. 1156. A soldier should not be discharged on the day of the expira- tion of his term if he is then awaiting sentence of court martial. No soldier in such a status can be entitled to his discharge till the result of his trial is published. ^ 47, 338, May, 1891. 1157. The act of desertion does not operate as a discharge. The name of a deserter is dropped from the proper rolls and is not again taken up until his apprehension or surrender; but he is in no sense discharged from the army. 63, 30, Decemher, 1890. Nor can an official publication in orders of a sentence of dishonorable discharge have the effect of discharging a soldier; there must still ])e notice, actual or constructive, of the fact of discharge. Cards 4()4, Octoher, 1891^.; 3063, April, 1897. While a soldier is, at the end of his term of enlist- ment, entitled in general to be at once formally discharged, he cannot discharge himself by simply leaving the service at such time. 54, 300, July, 1892. The final statements required b}^ the Army Regulations to be furnished with the discharge are no part of it; the discharge is complete without them. L. 494, July, 1886. 1158. The statement of "character'"'' appended to the certificate is no part of the discharge. It is a general rule that the character to be given a soldier on his discharge is discretionary with his compan}^ or other immediate commander (G. O. 74, A. G. O. 1881), and that the superior of such commander has no authority over the matter.^ 30, 169, February. J889. 1159. Ileldthut the object of the "deserter's release'' should be to protect the deserter from arrest and the Government against expenses attending the same — and that it should be prepared in such a wav as to preclude the claim that it operated as an actual discharge from the service.^* 63, 247-354, February, 1894. 1160. While a volunteer soldier was absent in desertion, the volun- teer armies were disbanded under an act of Congress. Held that the soldier upon the disbandment ceased, by operation of law, to be a deserter and became a civilian; that his military record, so far as the War Department was concerned, ended with the j^roper entry of the fact of his desertion; that in the absence of statutory authorit}^ the War Department was without power to legally discharge the soldier 'See A. R. 152 a, published in G. O., 138, A. G. O., 1899 (169 of 1901). '^Biit see now par. 148, A. R. of 1895 (1(52 of 1901). ''The "deserter's release" now in use conforms to these requirements. See see. II, Circ. 5, A. G. O., 1894. 326 ■ DISCHARGE. after the volunteer armies b}^ disbandment ceased to exist. 50, 192- 203, JS^'ovemher, 1891; Card 494, Octoher, 189 Jf. If the party was in fact discharged, actually or constructively, before or at the time the volunteer forces wcm'c disbanded, as shown l)y the I'ccords, a certificate to that eti'ect could at any time be given by the War Department. 36, 334, N'ovemher, 1889. 1161. The statvites requiring honorable discharge from the military service to entitle the party discharged to certain riglits and privileges have reference to the discharge given him for the purpose of severing him from the service — the onh^ regular legal discharge. Ili'Jd there- f oi"e that a discharge certificate given (without authority of statute) to a .volunteer soldier (who had never been discharged), after the volunteer armies had ceased to exist, ''to complete his military record", was void and of no efi'ect. He could not be discharged from a service he no long-er belonged to nor from a service that no longer existed. 42, 26T, Augn.st, 1890; 60, 214, Jane, 1893. 1162. A soldier who became insane while in the service was in hos- pital on account of the insanity at the expiration of his term of serv- ice. A discharge certificate was thereupon issued to him (in contra- vention of the Arm}" Regulations covering such cases) and his discharge was noted on the records. Held that, being insane, his notice of dis- charge was ineffective to deprive him of the right to l)e sent to the Government Hospital for the Insane or to preclude the Government from recalling and cancelling the discharge. Advised that the same be recalled and cancelled, and the man conunitted to the Government Hospital in accordance with the regulations. 61, 79, August, 1893. 1163. There is no express statutor}- authority for sending to the Goxerimient Hospital for the Insane prisoners at military posts who have been discharged the service and pending their confinement have become insane; but it is the practice to send them there. ^ Cards 443, Oetohr. 189Ji- nm.Maj, 1898. 1164. A dishonorable discharge is a discharge given pursuant to the sentence of a general court-martial w^hen specifically awarded by or necessarily involved in such sentence. 42, 267, August. 1890. Being a punishment it can only l)e authorized l)y sentence of a court-martial after trial and conviction, and no executive or militar}" official (except in executing such a sentence) can legally give or order such discharge. 36, 3:-i4, ^jncnhcr, 1889; 56, 220, (Mohcr, 1892; 60, 95, June, 1893. The sentence "To be drummed out of the service," necessarily involves dishonorable discharge and it has been the practice to give certificates thereof in such cases. 41, 117, J/^/.y, 1890. And when a soldier is ' See Sec. 4852, R. S.,as to prisoners becoming insane in the U. S. penitentiary. DISCHARGE. 327 sentenced b}' court-martial to imprisonment in a penitentiaiy and the sentence does not also direct dishonorable discharge, it nevertheless involves such discharge.^ Card^ l'2i26, Ajjril, 189S. 1165. Also /ic/r7, that a military commission can adjudge dishonor- able discharge from the military service, if it has jurisdiction of the offence committed by the soldier, and such punishment is necessary to a full and proper exercise of its jurisdiction. 41, 18, Jlai/, 1890/ 60, 164, June, 1893. 1166. An lionorable discharge releases from and marks the termina- tion of the particular contract and term of enlistment to which it relates onl}-, and does not therefore relieve the soldier from the con- sequences of a desertion committed during a prior enlistment. 49,442, Octoher, 1891; 53, 179, April, 189%; 59, 80, April, 1893. Similarly held with respect to a discharge without honor. Card 2115, Jfarch, 1896. These discharges release the soldier from amenability for all offences charged against him within the particular term to which they relate, including that of desertion, except as provided in the 60th Article of War. Card 2041, May, 1896. 1167. But a dishonorable discharge (/. e. by sentence) does not relate to any particular contract or term of enlistment; it is a discharge from the military service as a punishment — a complete expulsion from the army and covers all unexpired enlistments. A soldier thus dishonor- abh' discharged cannot be made amenal)le for a desertion or other mili- tary offence committed under a prior enlistment except as provided in the 60th Article of War. Nor would a subsequent enlistment after such dishonorable discharge operate to revive the amenability of the soldier for such offences. 53, 46, 179, Ajjrll, 189-2 ; 55, 165, August, 1892; 59, 55, April, 1893; Card 3585, Mremher, 1897. 1168. A soldier dishonorably discharged loses his retained pay, if any. under Section 1281, Revised Statutes (see par. 1369, A. R. of 1895), and his travel allowances under Section 1290, Revised Statutes. 17, 203, June, 1887. 1169. A soldier who had been tried and convicted numerous times by court-martial during his term of service was at the expiration thereof given a certiticate of discharge " without honor'', for, as stated by his company conunander, "being disqualitied for service on account of vJianider thvo\\g\x his own fault.'' ILld, that the condition referred to under which a soldier ma}- be discharged without honor, to wit, ''when he is discharged without trial on account of having become disqualitied for service, physically or in character, through his own 'Thiis wa^: tlie j)rac'tife durin*,' the civil war. But it is now the practice in such cases to si)ecitically adjudge dishonorable discharge to precede the imprisonment. 328 DISCHARGE. fault", (lid not apply to the case of a soldier discharged by reason of expiration of term of service; that the previous convictions could properly have been considered by the board of officers provided for by the regulations in determining- whether the soldier's service had been honest and faithful and upon an approved finding that it had not been, the discharge without honor could have been given. 65, 40, Ifaij, 189Jf.. 1170. Section 4 of the act of June 10, 1890, c. 426, authorizes the President, in time of peace, in his discretion and under such rules and upon such conditions as he shall prescribe "to permit any enlisted man to purchase his discharge from the arm3^" JltJd^ that under this section the President could permit a soldier to purchase his discharge, even if his service had not been honest and faithful, but in such event the soldier would forfeit his retained pay, if any. 63, 373, Fehrumy^ 189.^. 1171. Discharges are granted under the provisions of paragraphs 144, 145, 146, A. R.of 1895 (155-157 of 1901), by way of favor, upon the application of the soldiers eligible therefor and subject in each case to a waiver of travel allowances (par. 146). Held that this waiver could legally be required; and that the soldier by applying for the discharge consents to such waiver as a condition upon which the discharge will be granted. Card 1862, December, 1895. As the discharge can only be granted by the President or Secretary of War, a department com- mander has no authority to refuse to forward an application therefor. Card 203, Augusf, 189 J^. 1172. Jleld that under paragraphs 2 and 4, G. O. 17, A. G. O., 1893 (A. R. 144 of 1895; 155 of 1901), the period during which application for discharge by purchase may be made is limited to the second year and first half of the third year of the enlistments therein referred to; but the order for such discharge ma}' be issued and the discharge executed subsequently to the termination of such period. Cards 247, Jidy., 189^; 1340, Maij, 1895. 1173. Sec. 4 of the act of June 16, 1890, provides that mone3'S paid upon purchase of discharges shall be ""deposited in the Treasur}' to the credit of one or more of the current appropriations for the support of the army, to be indicated by the Secretary of AVar."" Held that under this section the Sccretar}' could change his designation of appro- priations from time to time, as to purchase mone}" thereafter accruing, if, in his judgment, such change would be for the interests of the service. 59, 60, Ajjril, 189J. 1174. Held that there was no legal authority for the refunding^ by the military authorities, of money paid to purchase a discharge under the act of June 16, 1890. This clearly appears from the terms of the DISCHARGE. 829 act which provides that the money when paid, "shall be deposited in the Treasuiy " to the credit of some current appropriation to be desig- nated b}^ the Secretary of War. to be "available for the payment of expenses incurred during- the fiscal year in which the discharge is made." The act moreover authorizes the President to permit such purchases " under such rules and upon such conditions as he shall pre- scribe '', and nothing is found in the rules actually prescribed (G, O. SI, 108, of 1890; -18 of 1891; 32 of 1892: or 17 of 1893) which con- templates or refers to the refunding of such purchase money. 65, 71, May. 189^. 1175. "Where a soldier deposited fifty dollars under the act of May 15, 1872, presumably in anticipation of his application for purchase of discharge, and subsequently while such application was pending deserted, hdd that said deposit was necessarily unconditional and like ^nj other deposit was forfeited by desertion. Card 807, January^ 1895. 1176. Under the authority of the act of April 11, 1890, c. SO, enti- tled "an Act for the relief of soldiers and sailors who enlisted or served under assumed names * * * during the war of the rebel- lion'',— At/fZ that a son of a slave, originalh' enlisted under the name of his former master and discharged as such in 1864, might legally have a discharge certificate issued to him in the name of his father, become free since the enlistment. 60, 354, JaJy. 1893. 1177. Sec. 224, Rev. Sts., does not authorize the Secretary of War to issue a duplicate certificate of discharge, to replace one lost, to an officer or soldier who served in the Mexican war, or to one who served in any war other than "the late war against the rebellion." 65, 390. July. 1891^. 1178. Where a duplicate certificate, having been furnished, has been lost or destroyed, held that as the statute does not prohibit the issuing of a second certificate, the Secretary of War may, under the power which, as representative of the President is vested in him, issue such second certificate if in his judgment it is proper to do so. Card 3101, Apnl. 1897. 1179. Where a certificate of honorable discharge upon being submit- ted to the Adjutant General's Office has had its value impaired by an erroneous entry thereon, held that there was no legal objection to an issue b}- the War Department of a new certificate containing no refer- ence to the erroneous entry. 34, 222, August, 1889; Card 1793. Odnher, 1895. 1180. It is well established that a soldier cannot himself avoid his contract of enlistment on the ground of minority, and abandon at pleasure the military service. His release on this ground can be 330 DISCHARGE. ohtainod only on application of a parent or guardian entitled to his services, and \vith(»ut wiiose consent he enlisted.' 58, 142, Fd>ruar>j, 1893. The application of the ])arent, whether made to the Secretary of War, or on halx-a^ cdrjyu,^ to a I\ S. court, uuist be made before the soldier attains his majority and ratities his contract.^ LV, 440, March, 1888; 53, 105, Apr!!, 189%; 54, 2;^8, Juhj, 1892. 1181. Where a soldier otherwise elio'il)lo for discharge on the ground of minority at enlistment is held awaiting trial or sentence for desertion or other military ofl'ence, or under sentence for the same, an application for his discharge by his jxirent should not be enter- tained by the Secretary of War. In such a case the pu])lic interests are paramount to the right of the parent. Nor can the parent legally procure his release on haheas corjms.'^ L. 680, Atu/usf, 1886; 54, 233, July. 1892; 57, 135, Decemher, 1892; 61, 158, August, 1893; 62, I'Jl November, 1893; Cards 2870, Jcmuai-y, 1897; 4244, Jwie, 1898. 1182. A minor who enlists without the consent of his parent or guardian and procures his enlistment by intentionally concealing the fact that he is a minor, receiving pa}^ and allowances thereunder, may be discharged w'ithout honor or held for trial for fraudulent enlist- ment, or honora])ly discharged, in the discretion of the Secretary of War. Card 4244, Jane, 1898. 1183. Where a State court on habeas corpus proceedings ordered that a soldier in the militarv' service of the United States be discharged therefrom, held that as the court was without jurisdiction in the matter its order was absolutely void tmd without etiect as a discharge of the soldier from the service. 32, 313-319, May, 1889; Card 394, Sej>tt)„- ber, 1894. 1184. lit I (I that the Secretary of War can not delegate to depart- ment commanders the power conferred upon him by the act of March 16, 1896(29 Stats., 63; G. O. 12, A. G. O., 1896), to discharge enlisted men for disal)ility caused l)y their own misconduct, with forfeiture of travel allowances.^ Card 7442, December, 1899. ^ In re Davison, 21 Fed. Rep., 618; In re Zimmerman, 30 id., 176; In re Cosenow, 37 id., 668; In re Kaufman, 41 id., 878; In re Morrissoy, 137 V. S., 157. '^ In re Dohrenddi'l', 40 I'Vd. Ivt'p., 148; In re Spenivr, id., 149. •Mn a recent faso (/// re Carver, 103 Fed. Rep., 024) it was held that the Federal courts will entertain jurisdiction on habeas curpna for the release of a minor, under the age of 21, who is detained in the military service of the United States under enhstment, in violation of Set'. 1117, Rev. Sts., although cliarges have been tiled against the minor bv an otHcer of the army for violation of the act of July 27, 1892, sec. 3, making frautlulent enlistmciit and the receipt of i)ay or allowance thereunder l>unishable by court-martial, if thi' charges have not been acted u}K)n by the Execu- tive department of the (iovcrnment. lUit what constitutes action on tlie charges by the Executive de])artment of the Government doesnot appcartoliave ))ecn argued orspi'cilically jxissed upon inthiscase. See, for a citation and discussion of authorities on this subject, G. O. 127, A. G. O., 1900. *ButseeG. O. 12, A. (i. ()., Mioo (A.R., 151 of 1901). DISCHARGE. 331 1185. The act of April 22, 1898, provided that "at the end of any war in which the United States may become involved the army shall be reduced to a peace basis by the "" * "' honorable discharge or transfer of supernumerary enlisted men." Held that particular enlisted men could not claim a right under this law to be discharged. The provision is directed to the President and makes it his duty to reduce the army by the means indicated, and of course he, through the officers of the arm}^ will select the men to be discharged. Card 6085, October^ 1898. This act further provided that all enlistments for the volunteer army should be for the term of two years unless sooner terminated and that all officers and men composing said arni}^ should be discharged when the purposes for which they were called into service shall have been accomplished or on the conclusion of hostilities. ILId that this latter provision made it the duty of the President to disband the volunteer army when the occurrences named took place, but did not give individuals the right to claim discharges before the end of the two years for which they enlisted. Cards -±822, August, 1898; 4891, 4897, Sejytemler, 1898. 1186. G. O. 40, A. G. O. of 189S, provided ''that men enlisted or reenlisted during the war ma}^ be informed that they will be granted their discharges if desired at the close of the war upon their individual applications." Held that this order simply authorized the discharge on their own application of men who had enlisted during the war, leaving the character of each discharge and the question of travel pay to be determined by the law and regulations on the subject. Card 6569, June, 1899. 1187. Held, that the provisions of par. 148, A. R. (162 of 1901), relat- ing to the appointment of a board of officers to determine the facts in any case in which a soldier considers that injustice will be done him as to the character proposed to be given him on his discharge is directory only and does not affect the validity of an executed discharge, with reference to which the directions of the regulations have not been observed. Card 5943, March, 1899. 1188. By the practice of the War Department, the age of an alleged minor is generally required to be shown by the affidavits of both par- ents, if living, or by the affidavit of the surviving parent or guardian, supported by the affidavits of at least two other respectable persons cognizant of the fact or by an officially authenticated record of a church or court. If practicable the affidavits should be accompanied hj the certificate of a judge of a U. S. or State court acquainted with the parties and vouching for the truth of the representations made. LIII, 53, October, 1886. 1189. Advised that an application of a parent for the discharge of a 382 DISCIPLINARY PUNISHMENT OR REPRESSION. minor soldier bo denied where it appeared that he had been married, presumably with the parent's consent. B}' the laws of France, and of Louisiana and some other States, marriage is an emancipation. And if it does not wholly- emancipate the minor, it removes him in a measure from the parent's control and gives him a right to his earnings.^ 53, 105, April, 1892. 1190. A parent or guardian not domiciled in the United States but in France, held not entitled to the discharge from the militar}^ service of a minor enlisted without consent. By such foreign residence the parent or guardian is viewed as having emancipated the child or ward.^ 62, 13^, Octoher, 1893. 1191. Where an application was made for the discharge, on account of minority, of a soldier born in Bermuda, advised that, in addition to the affidavit of the parent, there bo required, as evidence of age, a transcript of the official parish, or other public, register of births, signed b}^ the proper custodian (and sealed if ho has a seal); his sig- nature to be certified to as genuine b}' the U. S. consul. A transcript from the parish record of baptisms (as sent in this case), held insuf- ficient if a register of births exists. 43, 77, September, 1890. DISCIPLINARY PUNISHMENT OR REPRESSION. 1192. Two soldiers, at a militarv post, refused to do extra fatigue dut}^ imposed upon them by their captain for failing to make a proper score at target. The captain caused one of them to be tied up by his wrists with his feet partly raised from the ground for some six hours, and the other to be so tied up for about one hour and to be immersed several times in a water-hole. Held that such action was wholly with- out justification, the punishment inflicted not being sanctioned b}' law or usage, or warranted by the circumstances of the case, and that the ofiicer was clearly amenable to trial under the 62d Article of War. 60, 257, June, 1893. 1193. A soldier, who had been improperly allowed with others of a detachment to enter a saloon and drink, became disorderly and insub- ordinate in public, without however committing violence. The captain commanding, in attempting to repress him, assaulted him b}- striking him on the head with a government rifle with such force as to fell him to the ground and rend(u- him senseless, at the same time inflicting a severe contused lucerat(>d wound on his right car which rendered it deaf for several da3's. There Avas nothing like a mutiny and no serious disorder in the command. Held that the violence of the officer was iSee Taunton v. Plymouth, 15 Mass., 204. "^ So held by Attorney-General Gushing, 6 Opins. , 607. DISMISSAL BY SENTENCE. 333 greatly in excess of his authoritj-and wholly unjustifiable, the fact that the soldier was under the intluence of liquor going- to ag-gravate the officers offence. And recommended that the captain be brought to trial under Art. &2. 43, 52, June, 189S. 1194. Where, upon the trial of a soldier convicted of insubordinate conduct and severely sentenced, it was shown in evidence that at the time of such conduct he was subjected to punitive treatment by his companj^ commander, who caused him to be tied up and gagged, and it appeared that there was no indication of mutiny or other exigency in the command, held that such treatment was arbitrary and unwarranted by law or usag'e, and a military offence on the part of the officer, and advised that clemency be exercised in the case of the soldier. LIU, 193, October, 1886. 1195. Recommended that company commanders be authorized, sub- ject to the control of the commanding officer of the post, to dispose of derelictions of duty in their commands which would be within the jurisdiction of inferior courts martial, by requiring- extra tours of compan}', troop or battery fatigue, unless the soldier concerned demands a trial; the right to make such demand to be made known to him.' Card 3589, Octoher, 1897. DISMISSAL— BY SENTENCE. 1196. Courts martial are empowered (and required) to adjudge dis- missal upon officers of the army b}' the 3d, 6th, 8th, 13th, l-ith, loth, 18th, 26th, 2Tth, 28th, 38th, 50th, o-ith, 59th, 61st and 65th Articles of War, upon conviction of the specific offences therein described. In Arts. 8 and 50 the punishment of dismissal is referred to as "cashier- ing" — a term which has almost passed out of use in our service, and when employed means no more than dismissal. VII, 601, June, 186 Jf,,' XXXIV, 563, October, 1873. 1197. A legal sentence of dismissal of an officer when finally con- firmed by the competent authorities (according- to the 106th or l»»9th Article of War) takes effect upon the officer on the day on which the confirmation is officially communicated to him, either bj" the promul- gation of the order of confirmation at his station or other form of offi- cial notice.^ Thus the date of the actual confirmation is not neces- sarih- — is not probabl}" 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 party ceases thereupon to be an officer of the army; but this declaration is immaterial and sur- ' See this recommendation adopted and published in par. 1, Circulars, A. G. O., 1898. ='See §§ 184S and 1849, jmi. 334 DISMISSAL— BY SENTENCE. plusaoe. It not iinf requently happen.s — especiall}' in time of war, and particularly when the officer has, >since his trial, been taken prisoner b}^ the enemy — that a considerable period may elapse before the officer is officially informed of the confirmation of the sentence and thus becomes, in law and fact, dismissed from the service. XXXVl, 110, Decemhe,\ 1871^ ; XXXVIII, 341, October, 187G; 49, 170, September, 1891. 1198. A sentence of dismissal cannot legall}' be conlirmed so as to take effect as of a date prior to that of the formal confirmation. Thus where such a sentence was adjudged by a court martial on April 27, 1863, 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, 1863," lidd that this part of the order was unauthorized and inoperative. XXX, 4S(), July, 1870: 42, 370, August, 1890. 1199. AVhen a legal sentence of dismissal has been duly c'onfirmed and executed, the power over the case of the reviewing officer (whether the President, or the commanding general in time of war — see Review- ing Officer) is exluiudtd. The reviewing authority, as such, is functus officio. He cannot recall, revoke, rescind or modify the official act of confirmation, or the order which is the evidence of it. So — the sentence being executed and the dismissal being an accomplished fact — the case is beyond the reach of the ])ardoning poirer : by no exercise of that power can the sentence be removed or remitted, or the office lost be restored.^ Thus, so far as the executive power is concerned, the dismissal is final and irreversible. And the law has provided no court of appeal or other revisoiy authority (see Appeal) by which the same ma}' be reopened or set aside: the onl}' remedy is by a new appointment.^ Of course if the sentence was not legal — if the court, for example, was illegall}" constituted or composed, or was without jurisdiction, or its proceedings were invalidated as b}' 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 i\i\'6 fact may at any time be declared in orders. And so, whci'c the sentence, though h\gal, has not been approved or confirmed by th(> cc)m])etcnt authority. But where the sentence is strictly legal and has l)een legally t-oniirmed and executed, the mere fact either that the proceedings of the court were irregular, or that the rights of the accused were prejudiced in the admission or rejection of evidence, or that from this cause or ])ecause the members ^ Ex parte Garland, 4 Wallace, 333, 381; 12 Opins. At. Gen., 548. 2 See 4 Opiny. At. Gen., 274, 306; 6 id., 369, 514; 7 id., 99; 12 u?.,518; 14 *W.,449. DISMISSAL BY SENTENCE. 335 of the court were biased or otherwise, the linding was unjust or the sentence too severe — can add nothing whatever to the power of the Executive or of Congress to nullify or modif}" the dismissal as such} XX, 302, January, 1865; XXVI, 462, Feh'nanj, 1868; XXVIII, 457, 3larch, 1869; XXIX, 575, January, 1870; XXX, 318, 323, 420, 3fay and June, 1870; XXXIV, 634, J^ovemher, 1873; XXXVI, 274, 330, February and March, 1875; XXXVIII, 243, Jiugtmt, 1876; XXXIX, 238, 242, 248, May and June, 1870; LIII, 498, Septemher, 1887; LV, 221, December, 1887; Card 7509, January, 1900. 1200. Upon the legal execution of a sentence of dismissal, the officer is wholly separated from the military service and becomes as com- pleteh^ a civilian, as if he had never been in the army. As his dis- missal is irreversible, he can be restored to the service only by a new appointment by the President under the Constitution. ~ This is the law independently of express 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, Rev. Sts., provides that — " No officer of the Army who has been or maj" be dismissed from the service by the sentence of a general court martial, formally approved by the proper reviewing authority, shall ever be restored to the military service except b}^ a reappointment confirmed by the Senate.*" Thus, upon principle and at law, a new appointment is the only mode b}" which a dismissed officer can be rehabilitated. He cannot be honorabl}" discharged (as dismissed officers have not unfre- quently asked to be) or placed on the retired list or permitted to resign, in lieu of standing dismissed, because it is onl}- a commissioned 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, have lirst to be returned to it by an appoint- ment. XXIX, 103, July, 1869; XXX, 318, 323, May, 1870; XXXI, 504, July, 1871; XXXVI, 216, 330, January and Jfarch. 1875; XXXVII, 421, 492, March and A2jril, 1876; XXXIX, 248, October, 1877; XLI, 675, September, 1879. 1201. A sentence of dismissal does not attach any legal disability to the person dismissed. He is not — as is indeed indicated by Sec. 1228, Rev. Sts., above cited — disqualitied to be newly appointed to the army (XXX^'I. 330, March, 1875), nor is he disqualihed to be enlisted as a soldier (VII, 253, February, 1864), or to hold civil office under the United States. VIII, 6oi, Ju7ie, 186J,.; XXII, 517, Decemher, 1866; XXXI, 486, June, 1871; 38, 95, January, 1890; 40, 14, 2£arch, 1890. »See 4 Opins. At. Gen., 274. ■^See4 Opins. At. Gen., 318; 14 Jd, 44S, 502; also Report 868 of Judiciary Corn- niittee of Senate, of March 3, 1879, 45th Cong., .3d Bes. 336 DISMISSAL BY ORDER OF THE PRESIDENT. 1202. In view of the positive provision of the act of July 16, 1862, now incorporated in Sec. 1441, Rev. Sts., that "no officer of the n(wy who has been dismissed by the sentence of a court martial * * * shall ever again become an officer of the navy,'' Jield^ in the case of an assistant engineer of the nav}', 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 approval, would be in contravention of the statute and beyond the power of the Executive. V, 481, Decemher, 1863. DISMISSAL— BY ORDER OF THE PRESIDENT. 1203. Dismissal by executive order is quite distinct from dismissal by sentence. The latter is a punishment : the former is renumal 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 Constitution," 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 99th Article of War and in Sec. 1229, Rev. Sts.), expressly divested 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 war of the rebellion it was exercised in a great number of cases, sometimes for the purpose of summaril}^ ridding the service of unworthy officers, sometimes in the form of a discharge or muster-out of officers, whose services were simply no longer required. The dis- tinction between this species of dismissal and dismissal by sentence is illustrated b}" the 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, Octo- le,\ 1866; XXVI, 5, September, 1867; XXXI, 557, August, 1871; XLII, 470, July, 1880; XLVIII, 243, January, 188 J^. 1204. .\ 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 notified of iho-fact of the dismissal.' 49, 91, 176, Septem})tr, 1801. 1205. A summary dismissal "by order pf the Secretary of War" is 'See 7 Opins. At. Gen., 251. ■•* See, as among the i)rincii)al authorities on this subject, — Commonwealth v. Bus- eier, 5 Sergt. & Rawle, 461; Ex parte Ilennen, 13 Peters, 258, 259; United States i\ Guthrie, 17 Howard, 307; 4 Opins. At. Gen., 1, 609-613; 6 id., 5-6; 7 id., 251; 8 id., 230-232; 12 id., 424-426; Sergeant, Const. Law, 373; 2 Story's Cons. § 1537, note; 1 Kent's Corns., 310; 2 Marshall's Washington, 162. ^'See 16 Opins. At. Gen., 315. ♦See 12 Opins. At. Gen., 427. •HJould V. U. S. 19 Ct. Cls., 593, .595; 4 Conip. Dec. 601; 5 id., 419. DISMISSAL BY ORDER OF THE PRESIDENT, 337 in law the act of the President.' V. 31!), November, 1863; 36, 322, No nil tier, 1889. 1206. A department or arm}^ commander can have of course no authority to summarily dismiss or discharge an officer from the mili- tary service. XI, 405, FSruary, 1865; XVI, 553, Septemhei\ 1865; XLI, 84, Jamuiry, 1878; XLII, 263, April, 1879. 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, January, 1878. So where (in 1863) an officer of volunteers was dismissed b}" the order of an army com- mander, which was never ratified in terms by the President, but a suc- cessor, appointed to the vacancy by the governor of the State, was accepted and nuistered in by the United States; held (in 1880) that the dismissal was to be regarded as having been substantiall}^ ratified and legalized. XLIV, 82, July, 1880. There was during the civil war no law or regulation specifically authorizing department or avvay commanders to dismiss commissioned officers without trial by court-martial, but such dismissals were made sometimes unconditionally and sometimes subject to approval of higher authority, and the War Department has in practice held that it is with- out power to change the record or status of persons so dismissed. Card 3728, Deceiid)er, 1897. 1207. Jleld that the ruling in Blake's case (103 U. S., 231) was appli- cable, and that the office of an army officer might legally be vacated by the appointment and commission of a successor, although betAveen the office of the original officer and that of the successor there may have intervened a tenure by a third officer. Thus — (1st) Captain A. was dismissed from his office without legal authority; (2d) Captain B., an unassigned officer, was assigned to the captaincy of A. and held it till his own resignation, one year and three months later; (3d) Lieutenant C. was then promoted and appointed to the office and his appointment was confirmed. Held that Lieutenant C. was the legal incumbent of the office. LV, 546, April, 1888. 1208. Iltld that the ruling of the Supreme Court in the case of Blake was not applicable to volunteer officers of State organizations, and that a governor of a State, who had duly appointed a certain volunteer officer in a regiment, was not empowered to dismiss him by simply appointing to the same office, commissioning, and causing to be mus- tered into the U. S. service, another person. 46, 102, March, 1891. iSee 12 Opins. At. Gen., 421; McElrath >: United States^, 12 Ct. CI. R., 202; also § 2294, pout, and note. ^See § 337, ante, and note. 16906—01 22 338 DISMISSAL BY ORDER OF THE PRESIDENT. 1209. Where the suece.ssors of eighty-two volunteer officers of the civil war, .sentenced to be dismissed, were, pending action on their cases ]\y the President, appointed, with the advice and consent of tlie Senate, it was held, that the latter under the ruling in the Blake case ceased to be officers of the army after such appointments were made; and this independently of the fact that the court-martial proceedings had never actually been approved or confirmed in whole or in part b}' the President as required by the Articles of War to give effect to the sentences of dismissal. 24, 7, Aprils 1888. 1210. Where, l)y the direction of the President, an order was issued cancelling the muster-in of a volunteer officer on account of facts indicating that he was not a fit person to hold a commission, Judd that this was, in effect, a legal exercise of the authority of summary dis- missal for cause, vested in the President by the act of July IT, 1862. 61, 264, August, 1893. The President had not the same power of dismissal in the case of a volunteer officer as he has in that of a regular officer. This for the reason that the tenure of office of the former is for a fixed term and for a limited time only: the power to dismiss is thus, in his case, not an incident of the appointing power. ^ But the President was invested with a special power of dismissal of volunteer officers by the act of Congress of July 17. 1862. 46, 102, 3£arch, 1891; 52, 496, March, 189^. 1211. Held that it could not affect the operation of an order sum- marily dismissing an officer as '"second lieutenant," that, before its being communicated to him by being promulgated to the regiment, he had become by promotion a first lieutenant. VI, 558, Novemher, 186 k. 1212. A dismissal of an officer by executive order does not operate to disqualify him for reappointment to military office, or for appoint- ment to civil office under the United States. XXXVl, 830, March, lb It). 1213. The Executive, in summarily dismissing an officer, cannot at the same time deprive him of pay due. Nor can the right of lui officer to his pay for any period prior to a summary dismissal ordered in his case, be divested b}^ a dating back of the order of dismissal. Such an order cannot be made to relat*^ l)a('k so as to affect the status or rights of the officer as they existed before the date of the taking <'ff('ct of the dismissal. VI, 379. 405, September and October., 186Jf.; X, 1, 4, Jidy, 180 J^; XVII, 670, May, 1866; XXXI, 125, Jannar>/, 1871; XXXV, 112, Janua/ry 187 J^; XLII, 73, Decemlm', 1878; 470, J>dy, 1880. 1 See Mechem on Public Officers, p. 283, § 445. But see Parson's case, 30 Ct. Cls., 222. DISMISSAL BY ORDER OF THE PRESIDENT. 339 1214. There can be no revocation oi a dul}' executed order of dismis- sal, however unmerited or injudicious the original act may be deeuied to have been. For distinct as dismissal by order is, in its nature, from dismissal b}^ sentence (see § 1203 cmte)^ 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 in so far that he is completely relegated to a civil status, having in law no nearer or other relation to the military service than has any civilian who has never been in the army. Thus an order assuming to revoke a legal order of dismissal is as unauthorized 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.^ Nor can that be affected indirectly which cannot legally be done directly. An officer dismissed l)y executive order cannot be relieved by being allowed to resign or be retired, or by being granted an honorable discharge. For, in order to be discharged, &c., from the army, he must first be hi the a^my, 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, 504, July, 1871; XXXV, 392, 4:'6id, 2Iay and July, 187 J^; XXXVI, 218, 330, January and March, 1875; XXXVII, 451, AprH, 1876; XXXVIII, 61, 159, January and JuJy, 1876; XXXIX, 248, Octoher, 1877; 474, Ifarch, 1878; XLI, 153, March, 1878; 611, Jidy, 1879; XLII, 73, Decemler 1878; 35, 251, Septemher, 1889; 36, 323, Novemher, 1889; 52, 384, 3farch, 1892; 59, 80, A2)rn, 1893; 65,. 51, May, 1894; Card 4953, Septemher, 1898. 1215. That a summar}- dismissal is not revocable by an executive order is established law. Cards 691, December, 189^.; 3735, March, 1898; 4586, July, 1898. Where an officer duly summarily dismissed in July, 1863, and subsequently restored by an order assuming to revoke the order of dismissal, procured to be passed by Congress, in 1890, an act recognizing his restoration as legal, which, however, was vetoed ])y the President — held that his status was that of a person who had been illegally in the military service since the date of the order of so-called revocation. 44, 120, Deceinher, 1890. 1216. A\'hile an order assuming to revoke an executed legal order or sentence of dismissal is void and inoperative, yet where such dismissed »See 4 Opins. At. Gen., 124; 12 id., 424-8; 14 id., 520; 15 id., 658. A contrary view expressed by the Court of Claims, in its earlier period, in a series of cases — see Smith r. United States, 2 Ct. CI., 206; Winters v. United States, 3 id., 136; Barnes r. United States, 4 id., 216; Montgomery v. United States, 5 id., 93 — was finally practically abandoned in McElrath v. United States, 12 id., 201. See also U. S. v. Carson, 114 U. S., 619. •'See 8 Opins. At. Gen., 235; 12 id., 421; 13 id., 5; McElrath v. United States, 12 Ct. CL, 201. Compare § 1200, ante, and §§ 1218-1224, i^ost. 340 DISMISSAL HY ORDER: TRIAL IN CASE OF. orticer enters upon the duties of the ollice under the void order, held that he was during- the period he thus pi'rt'ornied such duties a de facto oniccr. Card (il>l, Ih-cemher, 189J^; 3785, JA/yv'/^ 1H9H. 1217. IHd that it was quite evidently the intention of C-ong-ress in tlir act of July 15, 1870, s. 12, that the commissions held by the offi- cers who remained unassigned on January 1, 1871, should cease on that da.y. No action on the part of a nmstering officer was re(iuired to carry the law into etiect — as is shown by V\. (). 1 of Jaimary 2, 1871, in which the separation from the service, on January 1. of the unassigned offi- cers was formally announced. 55, 1(>4, AiKjKst^ 1892. DISMISSAL" BY ORDER: TRIAL IN CASE OF. 1218. //, s. 12 ' (now kSec. 1230, Kev. Sts. ) — referring as it does to officers "hereafter dismissed "—was not retroactive in its operation, and did not (Mubrace cases of officers dismissed hy oi'dcr before the date of its passage. XVI, (531, Octoher, 1865; XX, 518, Ajn'lL 1800. And simi- larly held as to the provision now incorporated in Sec. 1230, Rev. Sts.; the same, though somewhat diiierently worded from the original stat- iitt\ being construed as not intended to enlarge the application of the latter.- XXXVIl, 018, June, 1870; XXXVIIl, iOO, July, 1870. 1219. The statute does not indicate within what period after the dis- missal 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.'* XVI, 170, May, 1865; Card 495-1, January, 1899. Held that a party who (without any sufficient excuse) delayed for nine years to apply for a trial under the statute might \v(41 be regarded as having waived his right thereto.' It could scarcely have been c()nteni})lated by Congress that a dismissed oIKcer shoulcl be at liberty to defer his api)lication for a trial till the evidence on which he was dismissed, or a material part of the same, had ceased to exist, and his restoration would thus be made certain. XLII. 446, Decemhr, 1S79. 1220. Though it may be sufficient that the a])i)lication madt' under the statute should state simply that the ajjpiieant has been "wrong- fully" dismissed, the preferable form would be for the applicant to set forth in what the alleged wrong consisted. XVI, 513, August, 1865. 'This statute was hold by tlie Attorney General (12 Opins., 4) not to be uncon- stitutional, in that it was n(")t "ubudxiousto the ohjec'tion that it invades or frustrates the power of the President to dismiss an ollicer." More serious objections to its constitutionality are believed to be: 1, That it authorizes the subjectinj: of a civilian to military trial; '2, that in restorinjj; an ollicer to the army it substitutes the action of a court "martial for tlu- ai>i)ointini,' power of the President. -See, toasi mi lar effect, the opinion of the Solicitor (ieneral in !(> Opins. At. lien., 599, "See Newton r. V. S., IS Ct. ('Is., 435: Armstron,u; r. V. S., I'd /(/., oS7. ' Compare 4 Opins. At. (Jen., 170; 5 hi., ;!S |. DISMISSAL BY OEDER: TRIAL IN CASE OF. 341 1221. Wh(>ro ii trial of a volunteer officer under this statute resulted in an ac(|uittal, and his original dismissal thus became ''void,''' but meanwhile his reg'imont had ])een mustered out of service, /irlfJ that he was properly entitled to an honorable discharge as of the date of the muster out of the regiment with full pa}' and allowances up to that time. XII, 659, ^epfeuJxir^ ISGij. 1222. It has ])een repeatedly held and is well settled that with the passing away of the \olunteer army of the civil war, each and every officer and enlisted man thereof became a civilian and lost his military status and all connection with the military establishment of the Govern- ment, and that laws relating alone to persons in the army are no longer applica))le to him. JLId^ therefore, that officers dismissed b}' order of the President from such volunteer army can no longer legally be brought before a general court-martial for trial under Section 1230, Rev. Sts. Card 4!)54, January, 1H99. 1223. Under the statute of 1865 there were but few trials; this legis- lation having been followed in the next year by the provision of the act of July 18, 1S66 (now incorporated in the second clause of Sec. 1229, Rev. Sts., and the new 99th Article of War), prohioiting execu- tive 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 held, that an officer dropped for desertion under the first clause of Sec. 1229, Rev. Sts., was not entitled, upon application therefor, to a trial under Sec. 1230; that the provision of the former section making such an officer ineli- gible for re-appointment in the army was incompatil)le with his res- toration })y the action of a court martial under the latter section; and that the latter section applied only to officers dismissed l>v order of the President under the general power to remove pul)lic officers appointed by him and f requentl}^ exercised in cases of army officers during the war of the rebellion (see § 1203, ante), but which, as to its exercise in time of peace, had been divested by Congress by the act of July 13, 1866. XLII, 446, Decemhei^ 1879. ' 1224. Although the act provides that if the sentence of the court be not one of death or dismissal the part}' tried shall be restored to his office, yet held, in a case in which the court acquitted the accused, that the President possessed the authority, vested in reviewing officers in all other cases tried by court martial, of returning the proceedings to the court for revision (see Revision), 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 opinion, justif}' the acquittal. XIX, 191. Mvemher, 1865, 342 DISQUALIFICATION. DISQUALIFICATION. 1225. Disqualification, or incapacity to hold oflice under the United States, is a punishment certainly sanctioned by precedent in the mili- tary service. ' Being a continuing punishment, it may of course be removed by a remission of the same by the pardoning* power at any time during the life of the party. (See Pardon.) XXXI, 24, November, 1870; XLI, 158, March, 1878; XLIl, 636, May, 1880. ^ It is indeed specifically authorized in two articles of war, Nos. 6 and 14 (providing for the punishment of false muster and like offences), but is here apparently intended not as an independentpunishment but as a penal consequence incident upon conviction and sentence of dismissal. As a distinctive punishment, however, it has been imposed in many cases, and has apparently been regarded as a particularly suitable penalty in cases of embezzlement of public funds or other fraud upon the Government. Instances of sentences, including (generally with dismissal) the punishment of disqualification, are to be found in the following orders of the War Department (or Hdqrs. of Army), published l)efore the civil war, the instances being none of them cases of conviction of false muster: (1. O. of April 2, 1818; do. of Sept. 2.5, 1819; do. 71 of 1829; do. 15 of 1860. The infrequency of this punishment in the early orders may perhaps be owing in part to the fact that it was considered that "cashiering" — a sentence often then adjudged — involved disqualification. Similar instances ot the same punishment occur in the following Orders issued from the War Department during and since the civil war: G. O. 18, 94, 1.59, 184, 242, 249, 332, 389, of 1863, do. 36, 51, 69, of 1864; G. C. M. O. 175, 251, 277, 369, 395, 404, of 1864; do. 6, 46, 85, 125, 201, 205, 219, 232, 2.38, 260, 270, 315, 365, 397, 432, 541, ,565, 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; clo. 14, 15, of 1870. Instances of this punishment have also been noted in the following orders issued from the military departments, armies, &c.: G. O. 60, 64, 76, 86, 89, 99, 106, of 1863; do. 2, 4, 20, 24, 28, 30, 32, 51, of 1864; do. 9, 12, of 1865— Armv of the Potomac. G. 0. 18, 81, of 1864; do. 11, of 186.5— Dept. of the East. G. 0. 81 of 1864— Dept. of Pennsylvania. G. O. 96 of 1864; do. 23, 27, of 1865— Middle Department. G. O. 22 of 1865— Middle Militarv Division. G. 0. 15 of 1863; do. 30 of 1865— Dept. of West Virginia. G. O. .34, 113, 175, of 1864; do. 49, 82, of 1865— Dept. of Virginia and North Carolina. G. 0. 32, 33, of 1864— Dept. of the Ohio. G. 0. 19 of 186.5— Dept. of Kentucky. G. O. 17, 21, 33, of 1863— Dept. of the Tennessee. G. O. 3 of 1863; do. 6, 22, of 1864— Dept. and Armv of the Tennessee. G. 0. 14 of 1865; do. 5 of 1866— Dept. of Tennessee. G. O. 21 of 1863; do. 24 of 1864; do. 77, 112, of 1865— Dept. of the Missouri. G. O. 8 of 1866— Dept. of Florida. G. O. 67 of 1863; do. 74, of 1865— Dept. of the Gulf. G. O. 55 of 1864— Mil. Div. of W. Mississippi. G. O. 87 of 1867 — Second Mil. Dist. This punishment, however, has, since 1870, been discontinued in the practice of our courts martial, and this discon- tinuance is to be traced to the ruling of the Attorney General in an opinion addressed to the Secretary of the Navy in 1868 (12 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 supplies with the Government, was illegal; sentences of disalnlity in general being further held to be "not in accordance with the custom of the service except where expressly authorized by law." This ruling was applied to a military case in G. CM. O. 22 (as also in do. 57,) to War._ Dept. , &c., of 1870, and the punishment of disquahfication imposed upon an officer disapproved as unauthor- ized. But whatever may have been the usage of iiaral courts martial, the very numerous precedents of cases in which such punishment had been adjudged by //////7((;7/ courts for a great variety of offences, were, it is considered, (|uite sufficient to have esta))lished that this penalty was sanctioned by i-ustom in the army. In some instances the disqualification, as adjudged, has extended to the holding of public office in general; in others it has l)een confined to the holding of military office. But, while the distiualification for inilltari/ office is less objectionable than the more general form, it may well be doul)ted whether this species of punishment, inasmuch as it assumes in effect to inhi})it the exercise by the Executive of the appointing i)ower, is within the authority of a court martial. As will )»e perceived from the aljove, this punishment lias been discontinued in our service, but on another and less tenable ground. DRAFT. 343 DRAFT. 1226. It is evident from the provisions of the draft act of March 3, 1863, that in the first place the enro///ttnt did not put men into the mili- tar}^ service, but only established their liability to be called out. It is also evident that the draff did not put them into the military service, because fifty per cent more than the required quota were drafted and it was only intended that a part of the number drafted should be received into the service, and the means of determining the part were specifically provided. For the same reason the act of reporting at the rendezvous did not put them in, for those who were to go in were yet to be selected. On reporting, each one was to be carefully inspected by the surgeon of the board, who was to report his physical condition to the board and the board was to pass upon his ease, and its decision was final. It was therefore the acceptance of a drafted man by the board of enroll- ment that put him in the service. No muster-in was necessary. Where the act speaks of the discharge of a drafted man rejected by the board, it evidently did not mean discharged from the military service; but a release from liability to service. Not being found fit for military service he was "'discharged'' from his liability to be called into service and sent home with his traveling expenses paid. The only obligation he could be discharged from before his acceptance was the obligation to do military service, if accepted, and when he was found to be disqualified and was rejected and discharged he was simply released from this obli- gation. It would not be reasonable to construe the word "discharged" to mean that a man was discharged from a service which he had not entered because on being examined he was found to l)e unfit for it and was therefore rejected and sent home. The provision, that a drafted man who should fail to report at the rendezvous without furnishing a substitute or paying the commutation, should be deemed a deserter is not in conflict with these views. The object of this provision was to enforce the appearance of those notified and for this purpose it was prescribed that for a failure to appear they would be deemed deserters and liable to trial and punishment as such. 50, 313, JVovemher, 1S91; Card 1570, Juhj^ 1895. 1227. Acceptance by the board of enrolment, like muster-in, con- verted the civilian into the soldier, and a drafted man so accepted should be regarded as having been in the military service of the United States until his separation therefrom by one of the incidents or casualties of the service. Card 2389, Augud^ 1896. 1228. The object of a draft (and therefore the end or completion of the process of drafting) was under the act of March 3. 18()3, to place the drafted person on general militar}^ duty as a soldier and whenever this was accomplished the person drafted passed beyond the control of 344 DRUNKENNESS. the draft oiBcers. So long as the latter could accept or reject him, the process of drafting was not complete, and the person was not fully in the military service. Card 2085, June^ 1896. 1229. A drafted man is not necessarily mustered into service. Examining him and holding him to service and actualh' putting him on duty may take the place of a formal "muster in." Card 2033, Fclrnm-y, 1896. 1230. By section 13, of the enrollment act of March 3, 1803, a drafted man who failed to report to the board of enrollment was de- clared "a deserter" and trialile therefor ])y court martial. Ileld that this section imposed upon him the single duty of reporting* to the enrollment board, and to that extent and for that purpose only gave him a militar}' status; that prior to his acceptance or rejection by the board, he was not fully in the military service of the United States, nor a soldier within the ordinary meaning of that term. Cards 2041, 2042, 2L(i/, 1896. 1231. Su})stitutes were not usually formally mustered in, but were simply accepted by the board of enrollment in the same way that drafted men were. It was not necessary to muster in drafted men or their substitutes. A muster-in is a mere matter of formal acceptance of the man by the Government and is the usual method of formally accepting men who voluntarily enlist. But the draft act of 1863 provided a different method of accepting the men who were to be put into the service by means of its provisions, viz., acceptance by a board of enrollment. So held where a substitute had been duly accepted by such a board, that a subsequent formal muster-in should be treated as without legal effect and superfluous in determining the date of entry into service. Card 1570, July., 1895. 1232. The exemptions from the conscription in the late civil war are specihcally set forth in sec. 2 of the original act of March 3, 18G3, and sec. 10 of the amendator}" act of Fe))ruary 10, 1864. The exempting provision of the later act in effect repealed and super- seded that of the earlier act, so that a person exempted and not drafted under the act of 1863 may have been liable to draft under that of 1864. 64, 498, 3fay. 189Ji.. DRUNKENNESS. 1233. While drunkenness is no excuse foi- crime, ^ and one who becomes voluntarily drunk is criminally responsible for all offences conunitted ^ Coke, in laying down the doctrine, now general, that drunkenness does not exten- uate V)ut rather aggravates the offence actually conunitted, 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." Blackstone Com., v. 4, ji. 2H. " The vices of men cannot constitute an excuse for their crimes." Story.!., in Tnited States r. Cornell, 2 Mason, 91, 111. As to the offence of drunkenness in general, at military law, see §§ 43-54, ante. EIGHT-HOUR LAW. 345 by him while in such condition, yet the fact of the existence of drunk- enness ma}' be proper evidence to determine the question of the species or grade of crime actuall}' committed, especially where the point to be decided is whether the accused was actuated by a certain specific intent. 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 animu.s furandl in a case of alleged larceny/ XXIII, 222, August, 1866\ XXX, 337, May, 1870. 1234. Drunkenness caused b}' morphine or other drug (see Thirty Eighth Article), prescribed by a medical officer of the army or civil physician, may constitute an excuse for a breach of discipline com- mitted by an officer or soldier, provided it quite clearly appears that this was the sole cause of the offence committed, the accused not being chargeable with negligence or fault in the case. XXVIII, 390, Feb- ruary, 1869. E. EIGHT-HOUR LAW. 1235. The original statute on this subject — the act of June 25, 1868, incorporated in Sec. 3738, Rev. Sts. — merely provided that eight hours should •'constitute a day's work'' for laborers, &c., employed by the United States. It has been held by the Supreme Court ^ (U. S. r. Martin. 94 U. S., 400), that this enactment was merely "a direction by the Government to its agents," not " a contract between the Gov- ernment and its laborers, that eight hours shall constitute a day's work,"' and that it did not '"prevent the Government from making agreements with them by which their labor may be more (or less) than eight hours a day.'" The act thus failed of its apparent object. To cure this defect the act of August 1. 1892, c. 352, was passed. Ildd therefore that the term "'public works of the United States." used in the tirst section of the later act, should not be narrowly construed. 55, 155, August, 1892; Card 5429, Becember, 1898. 'Rex V. Pitman, 2 C. & P. 423; 1 Bish. Cr. L. § 490. So, in fact the drunkennesa has been held admissible in evidence in eases of liomkide, upon the question of the existence of malice as distinguishing murder from manslaughter; as also upon the question of deliberate intent to kill in States where the law distinguishes degrees of murder. State r. Johnson, 40 Conn.. 136, and 41 id., 588; People v. Rogers, 18 X. York, 9; People r. Hammill, 2 Parker. 223; People v. Robinson, id., 235; State r. McCants, 1 Spears, 384; Kellv r. State, 3 Sm. & 31., 518; Shannahan v. Common- wealth. 8 Bush, 463; Swan r. State, 4 Humph., 136; Pirtle v. State, 9, id., 663; Haile r. State, 11 id., 154; People r. Belencia, 21 Cal.. 544; People '•. King, 27 *'/., 509; People r. Williams, 43 id., 344; 3 Greenl. Ev. §§6. 148; 1 Bish. Cr. L. §§ 492, 493. ^iAnd see 19 Opins. At. Gen., 685. 346 EIGHT-HOUR LAW. 1236. Thus held that the construction of levees on the banks of the Mississippi river, in accordance with the plans of the ]VIississippi River Commission was a public work of the United States in the sense of the act of August 1, 1802, c. 352, s. 1, although the United States did not own the land. A proprietorship in or jurisdiction over the thing- constructed is not necessar3\ The United States expends annually more than twenty millions for the improvement of rivers and harbors^ but the greater part of this is done without acquiring title or juris- diction to or over the premises. The question under the act is not in whom is the title or jurisdiction but who is doing the work. The con- struction of these levees is a particular work appropriated for by Congress and to be contracted for by the United States. It is there- fore one of the '■'"public works of the United States," and subject to the provisions of this statute. 55, 155, August^ 1892. 1237. ILld that it was not essential that the requirement of the act of August 1, 1892, be embodied in a contract, the law itself being self- acting. The responsibility rests on contractors to comply with it, irrespective of the terms and conditions of their contracts. The officers who enter into contracts on behalf of the United States are not charged with the duty of enforcing the law with reference to those with whom they contract; the latter being directly responsible in the matter. Any construction by the War Department of the requirements of the act would, if erroneous and not sustained by the courts, be no protection to contractors. 55, 311, Sejjteinher., 1892. 1238. Inquiry having been made of the War Department by certain contractors whether the men employed on dredges, scows and tugs on Lake Erie, under contracts with the United States, were to be regarded as excepted from the application of the act of 1892 — held that it was not the duty or province of the AVar Department to determine such questions, but that the sauie were for the courts to decide, on trials, under the second section of the act, of persons charged with viola- tions of its provisions. Neither the War or other Department of the Government can lay down rules, or make constructions of the law, for contractors, which would effectually protect them were the}' brought to trial.' 57, 36, Decemher, 1892. 1239. The term "extraordinary emergency,'' employed in the first section of the act of 1892, cannot properl}' be construed in advance as referring or applicable to any particular class of cases. The question whether there is or was such emergency should be left to be determined ' In a communication to the Secretary of War of An. than eight hours a day. but over whom he had no control, it was held that the statute did not apply. Card 7323, Mwemher, 1899. 1243. An executive officer cannot, in view of Sec. 3738, Rev. Sts., legally direct that laborers, workmen and mechanics employed by and on Ix^half of the Government shall be given time without loss of pay to vote on election day, if such indulgence would reduce the number of working hours below eight. Card 2692, Oct(>}>er, 1890. 348 ENGINEER CORPS OR OFFICER. 1244. IL'ld that a '" liostk'r"' at an ai'senal is neither a " la))orer" nor a ''nieehanic" within the meaning- of the eight hour act of 181>2. Card 3673, November^ 1897. Similarly held with respect to lock emi)l<)ves on river locks. ^ Card 4814, AtKjxxf, 1R9S. 1245. It is not the dut}- of the Secretary of War to institute proceed- ings for violations of the act of 1892. Parties who think the law is l)eing violated by contractors should sulmiit their complaints to the propel' United States attorney. Card 7323, J^ovemher, 1899, EMINENT DOMAIN. 1246. Where money appropriated for the purchase of land for the erection of monuments, &c. , was not sufficient to accomplish the entire purpose set out in the .statute, Jitld that, in obedience to the spirit of Sec. 3733, Rev. Sts., no step should be taken toward acquiring or con- demning lands, until further a]:)propriations were made. 37, 203, DeMi,h,'i\ 1889. 1247. Ifeld that there was no general act of Congress making State courts an agenc}' of the United States for the purpose of condemning lands; and that proceedings for this purpose should l)e had in a U. S. court under an act of Congress, or in a State court when such court has been by such act made an agency for the purpose. 38, 271. Feb- ruary., 1890. ENGINEER CORPS OR OFFICER. 1248. There is no legal objection to the detailing of a sergeant of one of the companies of the Battalion of Engineers to act as first ser- geant of the compan}'; but of course such acting first sergeant can receive no more or other pay than that of scrg(^ant. 62, 120, Octoher^ 189S. 1249. Under sec. 20 of the act of March 1, 1893, "to create the California Debris Commission,'' &c., the Secretary of War is clearly authorized to a.ssign an engineer officer to duty under the orders of the CV)mmission. 61, 133, Augtist, 1893. 1250. As to the disposition, by the Corps of Engineers, of charts of the northwestern lakes — Juki that, under Sec. 226, Rev. Sts., as amended by the appropriation acts for the naval service of Mav 4, 1878, and Fel). 14, 1879, all charts hereafter furnished to marinei's are to be paid for at the cost price of the paper and printing as paid b}" the Government. 38, 210, 477, January and Fehruary, 1890. ^See 20 Oinnn. At. (Jen., 459, 46.3, and A. R. 728 (812 of 1901). ENLISTMENT. 349 ENLISTMENT. 1251. AVhile the taking of the oath prescribed by the 2d Article of War is not essential to the validity of an enlistment, it is an almost invariable part of a regular formal enlistment, and, in the absence of any provision in our law prescribing what shall constitute an enlist- ment, the oath as taken and subscribed by the party is the regular and, in some cases, the only, legal written evidence that the personal act of enlisting has been completed by him/ XXX, 313, May, 1870; XLII, 203. March. 1879; Card 4631, l^/;/y, 1898. 1252. Due enlistment and the receipt of pay are placed upon the same footing by the 4Tth Article of War. Held therefore that receipt of pay from the United States, as a soldier, estops the party from denying the status which he has thus openly assumed, when sought to be made amenable as a deserter. VII, 132, February, 1865. A party who has voluntarily rendered service as an enlisted man and as such has been armed, clothed, and fed by the Government is estopped from denj'ing the validity of his contract of enlistment upon the ground of informality therein, and is entitled to pay for the period of such serv- ice. XIX, 397, January, 1866. 1253. The allegation in a .specification to the charge of desertion, that the accused was "duly enlisted," Jield established by evidence of his identification as a member of his company, or of facts that show an acquiescence on his part in the status of a soidier, such as the receipt of pay, doing of military duty, etc.~ XII, 361, Fehrnary, 1866. 1254. A soldier deserted in December, 1863, was subsequently dis- honorably discharged and confined for the desertion by .sentence of a court-martial, but, pending the confinement, was pardoned l)y the President '"on condition of returning and faithfull}' serving out his time in his regiment." He complied with this condition and was hon- orably discharged. ITeld that his returning to his regiment and enter- ing upon duty as a soldier pursuant to his agreement with the President, constituted an enlistment for the period agreed upon. 65, 224, Jmie, 189]^. ^ Our law not defining enliptment nor designating what proceeding or proceedings shall or may constitute an enlisting, it may be said in general that any act or acts which indicate an undertaking, on the part of a person legally competent to do so, ti» render military service to the Uniteei' se affect the validity of the contract. Thus the fact that a married man was enlisted in derogation of the regulations or procured his enlistment b}" representing that he was unmarried, held not to affect the validity of the enlistment.' XXXIl, 72, Octoher., 1871; XXXVIII, 616, J>me, 1877; XXXIX, 467, Fehruary, 1878. 1258. Sees. 1116-1118, Rev. Sts., so far as they relate particularly to the enlistment of deserters, convicted felons and persons over age, have not been regarded by the War Department as making such enlist- ments void, but as rendering them voidable merely at the option of the Government.^ It has been uniformly held that a deserter who ' "If a man at the time of his enhstment denies that he is a married man and enhsts as a single man, the faet that he has a wife and child does not entitle him to be discharged on habeas corpus, although it is provided in the Army Regulations that no married man sliall be enlisted without special authority from the Adjutant- General's Office." E.r parte Schmeid, 1 Dillon, 587 (1871 — No. 12,461, Federal Cases). See similar ruling in Ferren's case, 3 Benedict, 442 (1869 — No. 4,746, Fed- eral Cases). ^Sections 1116-1118, Keviseil Statutes, forbid the enlistment of deserters, convicted felons, insane ami intoxicated jjcrsons, ))ersons over 85 years of age, minors under 16 years of age, and minors over 16 without the written consent of their parents or guardians. The Supreme Court held {In /•<; Grindey, 1:57 U. S., 147, 1.53) that the enlistment of a person over 35 years of age was not void, but voidable at tlie ojjtion of the (rovernmentonly. In delivering the opinion of the Court, Mr .lustice Brewer, excepting insanity, idiocy, infancy, or other causes which (Usable a i)arty from changing his status, remarked with reference to the disqualifications of over age, desertion, and convi(^tion of felony: "The.se are matters which do not inhere in the substance of the contract, do not jirevent the change of status, do not render the new relations assumed absolutely void." The eidistment of a minor over Ki years of age without the written consent of the parent or guardian is not void but voidable only. ENLISTMENT. 351 enlists and afterwards ag-ain deserts can not on being brouglit to trial for the second desertion properly set up that he is not amenable to trial on the ground that his enlistment was void. A plea or defence to this effect should not be sustained by the court. XLIII, 167, January^ ISSO; 42, 82, July, 1890. 1259. Held, in regard to the enlistment, in violation of Sec. lllS, Rev. Sts. . of persons who had l)een convicted of felonies, that such enlistments were not void but voidable by the United States only. 48, 367, August, 1891; Card 9490, Decemher, 1900. 1260. A soldier on trial for desertion from the army pleaded in bar of trial that as he was a deserter from the marine corps at the time of his enlistment, it was void. Held that the court properl}- overruled the plea. While the enlistment in the army was fraudulent, it was not void, but voidable at the option of the Government only, which might hold him to the existing obligations of either or both enlist- ments. Fraud gives only the defrauded party the option of disaffirm- ing the contract, but until so disaffirmed it remains good.^ XLVIII, 203, December, 1883; LV, 479, 482, April, 1888. 1261. There is no law or regulation affecting the validity of an enlist- ment made on Sunday." XXXIII, 662, Decemher, 187^2; Card 2619, September, 1896. 1262. The engagement alil^e of officers and soldiers when entering the Army has always been held to recognize, and to be subject to, the right of the Government to change b}^ law their pay and allowances in its discretion as the public interests may require. Held therefore that a contract of enlistment was not violated by the United States by the reduction by act of Congress, pending his enlistment, of the pay In re Morrissey, 137 U. S., 157. It is not voidable at the instance of the minor {id.) ; but is voidable by the United States or by the parent or guardian. Id.; In re Wall., 8 Fed. Rep., 85; In re Davison, 21 uL, 618; /» re Hearn, '62 id., 141; J/i ?-e Cosenow, 37 id., 668; hire Dohrendorf, 40 id., 148; In re Spencer, id., 149; In ir Lavvler, id., 233; In re Dowd, 90 id., 718; McConologue's Case, 107 Mass., 170. As the enlistment of such a minor is not void but voidable only, he is, until the enlistment is duly avoided, legally a soldier and fan desert or commit any other military offence; and when held for trial or punishment therefor, the interests of the pul)lic in the achnin- istration of justice are paramount to the right of the parent or guardian, and retiuire that the soldier shall abide the consequences of his offence before the right to his discharge is passed upon. In re Cosenow, 37 Fed. Rep., 668; In re Kaufman, 41 /(/., 876; hi rr Dowd, 90 id., 718; McConologue's Case, 107 Mass., 170. See, also, General Orders, No. 127, A. (t. O., 1900, and other authorities cited therein, hire Lawler, 40 Fed. Rep., 2.!3, it was held that the enlistment of a minor under 16 j'ears of age would be void, with or without the consent of the parent; but this is not thought to l)e the correct view. The statute probably renders the enlistment voidable at the instance of the minor, as well as at the instance of the parent or guardian where the enlistment was without his consent, but if the minor has capacity to enter into the .s/o/(/.s' of a ."Soldier, and while in that status commits a military offence, he should abide the conseiiuences of the offence before being discharged. ' Bigelow, Law of Fraud, 121. ■•'The same is held in the English case of Wolton r. Gavin, 16 Q. B., 48. 352 ENLISTMENT. of a soldier from sixteen to thirteen dollars per month/ XXXIV, 442. Septemher, 187 3. 1263. ILld that the enlistment of certain volunteer soldiers in 1862 "for three years or during the war" meant three years from the date of muster, if the war should last that long, and if it should not, then until it should end; that the reference to the duration of the war was a restriction and not an extension of the term." XLIl, 524, Marchy 1S80; Card 6312, April, 1899. 1264. The enlistment of a minor without the consent of his parent or guardian is not void, but voidable; until avoided it is valid.^ XLIX, 353, 376, October, 1885; L, 139-143, March, 1886. It is well established that when a minor enlists without consent he remains sub- ject to the Articles of War, until discharged by proper authority, XLIX, 353, 376, mpra; Card 2870, January, 1897. 1265. Tlie Army Regulation requiring consent of parent or guardian applies to an Indian minor enlisting in the army. But an Indian agent is not, as such, the guardian of an Indian minor under his charge within the meaning of the Regulation. Card 184, Augmt, 189Jf. 1266. It is not practicable to prescribe what misconduct shall con- stitute a failure to render honest and faithful service within the meaning of the act of Congress approved August 1, 1894, regulating enlistments. Each case should be decided upon its own merits. Card 2158, March, 1896. It is a matter entrusted to the discretion of the Secretary of War.* The restriction imposed upon him by the proviso in sec. 1, of the act of June 16, 1890, being limited solely to the purposes of that act, does not apply to the act of 1894. Cards 2004, January, 1896; 2121, MarcJi, 1896; 3794, January, 1898; 5569, Decem- lm\ 1898. 1267. Where a soldier has been discharged without honor upon the ground that his service was not honest and faithful, held that while the discharge could not be revoked, the Secretary of War could upon an application to enlist reconsider the question of the character of the ' "The Executive department has discretionary authority to discharge before the term of service has expired (4th A. W. ), but has no power to vary the contract of enhstment." 4 Opins. At. Gen., -588. (1847.) The Secretary of War can release a soldier from his contract of enlistment by a dis- charge, but has no power to suspend it, even with the soldier's consent. 15 Op. At. Gen., 862. (1877.) ^Breitenbach ;;. Bush, 44 Pa. St., 817. And see Clark r. Martin, 8 Grant's Cases, 393; do., 5 Phila., 2,51. '^In re Wall, 8 Fed. Rep., 8.5; McConologue's case, 107 Mass., 170; In re Drew, 25 Law Rep., 588; Jn re Graham, 8 .Tones (N. C. ), 416; Wilbur r. (irace, 12 Johns., 67; Ex parte Anderson, 16 Iowa, 598; Com. r. Gamble, 11 Sergt. & Rawle, 93; Tyler r. Pomeroy, 8 Allen, 480, .501. See notes to §§ 1180, 1181, and 1258, ante. *See 3 Comp. Dec, 557. ENLISTMENT. 353 applicant's service, and if found to liave been in fact honest and faith- ful, could authorize his enlistment. Cards 1197, A2)ril, 1895; 2423, July, 1896; 3131, April, 1897. 1268. Dishonorable discharge is prima facie evidence that service during- the term of enlistment, which it terminated, was not honest and faithful. It is however within the discretion of the Secretary of War to determine for the purpose of enlistment whether such term was honest and faithfid, and he may decide on the facts in a particular case that it was, even where there has been a dishonorable discharge. Cards 4406, 4419, June, 1898; 4465,4601, 4667, July, 1898; ^2>Z'd,Noveml)er, 1898; 5675, April, 1899; 6477, August, 1899; 6727, June, 1899; 7070, September, 1899; 9039, September, 1900. But, in general, service during a term of enlistment from which a soldier was dishonorably discharged, particularly with confinement at hard labor, is viewed as not honest and faithful. Cards 853, 1072, 1097, 1588, January to July, 1895; 2496, 2769, Aitgust and Mvemher, 1896; 3068, 3170, 3722, Ajrril to December, 1897; 4668, 4748, 4783, July and August, 1898; 5643, January, 1899. Where a soldier in fact deserts, and his enlistment is terminated by a dishonorable discharge therefor pursuant to the sentence of a court martial, his service during such term ought not to be considered honest and faithful. Card 6570, June, 1899. 1269. The act of Aug. 1, 1894, applies to all enlistments for the army. ITeld, therefore, that the enlistment of an Indian must be for the term of three years. Card 249, August, I89J4.. 1270. The enlistment of an alien between 16 and 18 years of age, whose parents have never been in this country and are dead, not being a citizen or capable of declaring his intention to become one, is pro- hibited by the act of August 1, 1894. But all persons born in the United States and subject to the jurisdiction thereof are citizens.^ This includes minors born in the United States of alien parents. Cards ISl. 804, August and Decemher, 189 J^. 1271. Children of alien parents reaching their majority after their parents are naturalized are citizens, but it is otherwise if they reach their majority before their parents are naturalized. An alien minor can not declare his intention to ])ecome a citizen for the purpose of enlistment in the reguhir army. Cards 168, August, 1891/.; 5550, lho,nJ>er, 1898; 6726, July, 1898. 1272. Under its constitutional power to raise and support armies. Congress can designate the classes of persons from which enlistments shall or shall not be made. This is done in the act approved August ^ XlVth Amendment of the Constitution. 16906—01 23 354 ENLISTMENT. 1, 1894, which, among other things, provides that no soldier shall be again enlisted in the army whose service during his last preceding enlistment has not been honest and faithful. If such service has not been honest and. faithful, the soldier is ineligible for enlistment. The character of service rendered is a conclusion based upon a fact or facts. Military offences which the soldier may have committed, or of which he has been convicted may constitute these facts. A full pardon for such offences would relieve the soldier from further pun- ishment for them, would in legal contemplation obliterate them as offences, but would not ])lot them out so far as they involved conceded accomplished acts or facts to be considered in determining whether the soldier's service had been honest and faithful. Held, therefore, where a soldier had been convicted of desertion, dishonorably dis- charged, and contined by sentence of a court-martial, that a full par- don would not affect the conceded unauthorized absence and violation of the oath of enlistment; that if these facts justified the conclusion that his service had not been honest and faithful he was ineligible for enlistment; and further that the pardon in restoring his rights of citizenship would not restore his eligibility for enlistment, as enlist- ment is not a right of citizenship.^ Cards 1765, 1883, Octoher and Novemler, 1895; 3125, Ajji-H and June, 1897; 4513, 4645, July, 1898. 1273. Held, also, that a full pardon after conviction of a felony would not remove the ineligibility for enlistment, which such conviction con- stitutes under the provisions of Sec. 1118, Rev. Sts. The pardon releases the offender from all disabilities imposed by the offence and restores him to all his civil rights. In contemplation of law it so far blots out the offence that afterwards it cannot be imputed to him to prevent the assertion of his legal rights. But the conviction of the felony remains an accomplished fact. This fact constitutes a statutor}^ disqualification for enlistment; and as the privilege of enlisting in the army is not one of the legal rights of a person, a pardon of the felony after conviction cannot remove the ineligibility for enlistment created by the fact of conviction. 36, 262, Novemler, 1889; Card 3125, June, 1897. 1274. A soldier was dishonorably discharged Avith confinement in a penitentiary b}' sentence of a court-martial, and pending the con- finement, the unexecuted portion was remitted. Jfeld, that he was not eligible for enlistment, his service during his last term not having been honest and faithful; and that the remission did not make him eligible. Card 1072, February, 1895. 1275. Where a discharged soldier whose service during his last term was not honest and faithful is again enlisted througli false representa- ^See opinion of Atty. Gen. of Feb. 9, 1898 (22 Opins., 36). ENLISTMENT. 355 tions as to such term, held that such enlistment though in violation of the act of August 1, 1894, was not void, but voidable only at the option of the Government. Card 1512, JuJy^ 1895. So, where a soldier had been discharged without honor from the preceding term of enlist- ment and had b}^ concealing this fact again enlisted, it was held that though the latter enlistment were viewed as both fraudulent and in violation of the act of August 1, 1894, the Secretary of "War could cause him to be tried for the fraudulent enlistment, or summarily dis- charged therefor without honor, or to serve out the enlistment. Card 4077, April, 1898. 1276. The act of August 1, 1894, prescribes that no person who is over 30 years of age shall in time of peace be enlisted for the first enlistment in the army. Held that an enlistment in the marine corps would not render a subsequent enlistment in the army a second enlist- ment under this act and thus remove the limitation as to age; service in the marine corps not being service in the army. Cards 1339, 2fay, 1895; 2.530, August, 1896; 3758, January, 1898. 1277. The act of August 1, 1894, is limited to "time of peace". Held, therefore, that the enlistment of four musicians formerly in the Spanish Armj^ in Porto Rico, could, the war with Spain not having terminated, legally be authorized. Card 5148, Octoher, 1898. 1278. The '"last preceding term of enlistment" as used in sec. 2 of the act of August 1, 18'94, is not limited to service in the regular army; it applies as well to service in the volunteer army. Cards 5840, 6203, March and April, 1899. 1279. The term of three months after honorable discharge within which a man ma}' be re-enlisted under the act of August 1, 1894, begins on the day' next following the day of discharge. Card 108i, March, 1895. 1280. The enlistment of an Indian prisoner of war terminates his status as such prisoner, and he cannot be returned to it on his dis- charge from the service. Cards 16, July, 1891^,; 1193, April, 1895. 1281. An enlistment in the United States arm}" does not under any law of the United States operate as a discharge from the national guard of a State. Card 5753, January, 1899. 1282. The statute (act of March 3, 1899) which authorizes the enlist- ment of cooks in the army makes no limitation as to the race to which the persons so enlisted may belong. Held, therefore, that there was no legal objection to the enlistment as cooks of Japanese who are citi- zens of the United States. Card 6751, July, 1899. 1283. By the act of March 2, 1899, it is provided "that the limits of age for original enlistments in the army shall be eighteen and thirty- five years." Held, that the fact that an applicant over thirty-five 356 EVIDENCE. years of age, and without prior service as an enlisted man, had served as an officer of vohinteers, would not prevent his enlistment from being- an original enlistment within the meaning of the statute. Card GS44, August, 1S99. 1284. There is no statute that authorizes even the President to accept into or retain in the militar}" service of the United States an individual soldier on a condition that he shall be sent to this or that part of the countr}" to serve. A practice of entering into such agreements would soon prove impracticable and inconsistent with public polic}^ and the interests of the service. Card 6731, July, 1899. EVIDENCE. 1285. 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 particu- lar, and it is thus open to them, in the interest of justice, to apply these rules with more indulgence than the civil courts; — to allow, for example, more latitude in the introduction of testimony and in the examination and cross-examination of witnesses than is commonly per- mitted 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.- XXIX, 480, Becember, 1869; XXXI, 273, Ilarch, 1871; XLII, 74, December, 1878; LV, 497, March, 1888; Card 8471. June, 1900. 1286. The rules of evidence should be applied by military courts irrespective of the rank of the person to be affected. 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 occasion made a statement contradictory to or materially different f i-om 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 properh' decline to answer them on the ground that it is disrespectful "See 3 Greenl. Ev.,§ 476; Lebanon r. Heath, 47 N. Hanip., 359; People v. Van Allen, 55 N. York, 39; 2 0])ins. At. Gen., 343; Grant v. (iuuld, 2 H. Black., 87; 1 McArthur, 47; McNaghten, 180; Plarcourt, 76; DeHart, 3.34; O'Brien, 169; G. O. 51, Middle Dept., 1865; G. C. M. O. 60, Dept. of Texas, 1879; do. 3, 52, I>ept. of the East, 1880. ^C'ompare the views expressed in G. C. M. 0. 32, War Dept., 1872; do. 23, Dept. of Texas, 1873; do. 60, Dept. of California, 1873. See also Court-Martial Manual ( 1901) , par. 2, p. 42. EVIDENCE. 357 to him thus to attempt to di.seredit hhii.' XXXII, 642, May, 1872; XLI, 33, October, 1877. 1287. The weight of evidence does not depend upon the numljcr of the witnesses. A single witness, whose statements, manner, and appearance on the stand (sec § 1365, po.'tt) are such as to commend him to credit and confidence, will sometimes properly outweigh several less acceptable and satisfactory witnesses." XXXV, 55, Decemher, 187S. 1288. Evidence of the good character, record, and services of the accused as an officer or soldier is admissible in all military 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 oflicer whose approval is necessary to the execution of the sentence. XIX, 35, Octoher, 1865; XXXVI, -446, 471, j\£ay, 1875. Where such evidence is introduced, the prosecution may offer counter testimon}', but it is an established rule of evidence that the prosecution cannot attack the character of the accused till the latter has introduced evidence to sustain it, and has thus put it in issue.' XXVIII, 593, May, 1869. 1289. Upon a trial where the offence is drunkenness or drunken con- duct charged under Article 62, 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 expressions of opin Ion which are properl}' ruled out on objection unless given by experts, but as a mere statement of a matter of observation, palpable to persons in general, and so proper to be given ^ See opinion of the Judge- Advocate General, as adopted by the President, in G. 0. M. (.). 06, Hdqrs. of Armv, 1879; and compare remarks of reviewing ofhcers, in G. 0. 11, Dept. of California", 1865; G. C. M. 0. 31, Dept. of Dakota, 1869; do. 8, Fourth INIil. Dist., 1867. -Ci)m]iare Rudolph r. Lane, 57 Ind., 115; McCrum r. Corby, 15 Kans., 117. ^In commencing the examination of a witness, it is a ledding of the witness, and objectionable, to read to him the charge ami specification or specifications, 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 an,d ol)jecti(inal)le, as encouraging irrelevant and hearsay testimony. The witness should sim])iy be asked to state what was said and done on the occasion, &c. A witness sliould properly also be examined on sitecitic interrogatories, and not be called upon to make a general statement in answer to a single general question. Compare G. O. 12, Dept. of the Missouri, 1862; do. 86 id., 186.S; do. 29, Dept. of California, 1865; do. 67 Dept. of the South, 1874; G. C. M. 0. 14, 24, Dept. of Dakota, 1877. 358 EViDEisrcE. bv an}^ witness as 9, fact in his knowledge.^ XXII, 635, Marcli^ 1867 ; XXiy, 79, D,'M,iht,\ 1876. 1290. A statement to the effect that a person was intoxicated not inadmissible in evidence as being an expression of an opinion. Whether a person is drunk or sober is "a fact patent to the observation of all, requiring' no scientitic knowledge/'" LVl, 165, 2fa>j, 1888. 1291. Except by the consent of the opposite party, the testimony contained in the record of a previous trial of the same or a similar case cannot properly be received in evidence on a trial by court mar- tial; nor can the record of a V)oard of investigation ordered in the same case be so admitted without such consent. In all cases (other than that provided for bv the 121st Article of War) testimony given upon a previous hearing, if desired to be introduced in evidence upon a trial, must (unless it be otherwise specially stipulated between the parties) be offered cle novo and as original matter. XIX, 41, Octoher^ 1865; XXVII, 318, Octoler, 1868. 1292. 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, February, 1861^. 1293. The muster rolls on file in the War Department are oflicial records and copies of the same, duly certified, are evidence of the facts originally entered therein and not compiled from other sources — subject of course to be rebutted by proper evidence that they are mis- taken or incorrect. Ill, 523, Augmt, 1863. So though such rolls are evidence that the soldier was duly enlisted or mustered into the serv- ice and is therefore duly held as a soldier, they may be rebutted in this respect 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, May, 186 J^. 1 People V. Eastwood, 14 N. York, 562; Stacy r. Portland Pub. Co., 68 Maine, 279; Sydleman v. Beckwith, 4.3 Conn., 12; State r. Huxford, 47 Iowa, 16; G. 0. 42, Dept. of the Platte, 1871. ^ Lawf-on on Expert and Opinion Evidence, p. 473, et seq. •'See G. C. M. D. 10, Hdcirs. of Army, 1879; G. O. 21, Dept. of the Missouri, 1863 do. 17, Dept. of Arkansas, 1866; do. 19, Third Mil. Dist., 1867; do. 49, Dept. of Dakota, 1871. As ai)plied to military cases, it would be better to say, in lieu of the expression "if ol)jected to," " unless expressly consented to by the accused witli full knowledge of his rijihts." ■•But Udte in this connection the ruling of the Supreme Court of Massachusetts in the case of Hanson r. S. Scituate, 11.5 Mass., 336, that an otticial certificate from the A(ljutant General's Othce to the effect that certain facts appeared of record in that office but wliich did not i)urport to l)e a transcript from tlie record itself, and was therefore simply a jiersonal statement, was not competent evidence of sucli facts. It was held by the U. S. Supreme Court in Evanston v. Gunn, 9 Otto, 660, that the record, made by a member of the U. S. Signal Corps of the state of the weather and EVIDENCE. 359 1294. General orders issued from the War Department or Head- quarters of the Army may ordinaril}^ be proved by printed oflScial copies in the usual form. The court will in general properly take judicial notice of the printed order as genuine and correct. A court martial, however, should not, in general, accept 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 genuineness and official char- acter.^ XV, 216, J/ay, ^6^'. 1295. In view of the embarrassment which must generally attend the proof l^efore a court-martial of the sending or receipt of tele- graphic messages by means of a resort, by suhjxjena duces teciim^ to the originals in possession of the telegraph company,^ advised that the written oi' printed copy, furnished by the company and received by the person to whom it is addressed, should in general be admitted in evidence by a court martial in the absence of circumstances casting a reasonable doubt upon its genuineness or correctness. But w^here 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 compan v, or other person cogni- zant of the fact of sending, should be .summoned as a witness. V, 458, Becemler, 1863; XIV, 259, MarcJi, 1865. 1296. A court-martial (b}^ snljpoena duces tecum, through the judge advocate) may sunmion a telegraph operator to appear before it and bring with him a certain telegraphic dispatch. But it is beyond the power of such court to require such witness against his will to sur- render the dispatch, or a copy, to be used in evidence, if he be a civilian. 31, 449, April, 1889. (See note to § 231, ante.) 1297. The fact that a party is a public enemy of the United States or has engaged in giving aid to the enemy does not affect the compe- tency of his testimony as a witness before a court martial. AVhere 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 accomplice) are ordinarily to be received with caution unless corroborated. IX, 164, 173, June, 186^; X, 330, Septeniher, 186J(.; XIII, 499, 2farch, 1861^; 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 official record kept by a public officer in the discharge of a public duty. But that the entries in such rolls are not proof of the commisdon of an offence, as desertion for example, see § 10.50, ante. 'See a similar ruling in Ci. O. 121, Second Military District, 1867. ^The subject of the extent of the authority of the courts to comjjel telegraph com- panies to ])roduce original private telegrams for use in evidence is most fully treated in an essay by Henry Hitchcock, Esq., on the "Inviolability of Telegrams," pub- lished in the Southern Law Review for October, 1879. 360 EVIDENCE. XIV, (545, June, 18G5; XX, 86, Octoher, 1865; XXI, 54, Novemher, I860. 1298. Desertion is not a felony and does not render a witness incom- petent at common law or before a court martial. Nor does the loss of citizenship upon conviction of desertion, under Sees. 1996 and 1998, Eev. Sts., have such effect; the competency of a witness not depend- ing- upon citizenship. A pardon of a person thus convicted would not therefore add to his competenc}'. But where it was proposed to intro- duce such a person as a material witness for the prosecution in an important case, advised that it would be desirable to remit the unex- ecuted portion of his sentence, if any. LI, 254, Decembe7\ 1886. 1299. A confession is competent evidence when free and voluntary: otherwise where made through the influence of fear or hope of favor. ^ So a confession that he had deserted, made by an alleged deserter to a police officer, who, on arresting him, assured him that if he told the truth he (the officer) would give him an opportunity to escape before being delivered up to the militar}- authorities — held clearlj^ not admis- sible in evidence as having been induced b}" promise of favor on the part of a person in authorit3\ LV, 217, December.^ 1887. 1300. The testimony of an accused part}^ is competent only when presented as authorized by the act of Mch. 16, 1878, c. 37, v'/s., when the party himself requests to be admitted to testif3\ Such testimon}^ is not excepted from the ordinary rules governing the admissibility of evidence, nor from the application of the usual tests of cross examina- tion, rebuttal, &c.*^ But an accused so testifjang cannot be compelled against his objection to criminate himself.^ Card 1495, Jidy^ 1896. 1301. It is in general competent, on trials by court martial, for the accused to put in evidence any facts going to extenuate the offence and reduce the punishment, as the fact that he has been held in arrest ^United States v. Pumphreys, 1 Cranch C. C, 74; United States r. Hunter, id., 317; United States v. Charles, 2 id., 76; United States v. Pocklington, Id., 293; United States V. Nott, 1 McLean, 499; United States r. Cooper, 3 Qu. L. J., 42. If an officer were to admit to a superior, in writing, the commission of a military offence and promise not to repeat the same, under the well-founded hoj^e and ])elief that a charge which had been preferred against him therefor would be withdrawn, the admission thus made, in case he were actually brought to trial upon such charge, would not 2)roi)erly be received in evidence, against his oljjt'ction. Confessions made l)y private soldiers to oliicers or nou connnissioncd othcers, though not shown to have been made under the influence of i)romise or threat, should yet, in view of the mili- tary relations of the parties, be received with (caution. See (t. C. M. O. 3, War Dej^t. 187(); (r. O. 54, Dept. of Dakota, 1867. And compare Cady v. State, 44 Miss., 332. Mere silence on the i)art of an accused, when (luestioned as to his supposed offence, is not to be treated as a confession. See Campbell r. State, 55 Ala., 80. ■-'SeeG. C. M. (). 8, 16, Dept. of the Platte, 1879; do. 6, hi, 1880; do. 34, De])t. of Texas, 1879. And compare Whcelden v. ^^'ilson, 44 INhiine, 11; Marx v. People, 63 Barb., 618; Fralich r. People, 65 id., 48; People r. McCungill, 4\ Cal., -129: Clark v. State, 50 Ind., 514; Fitzpatrick v. U. S., 178 U. S., 304. ^59 Albany Law Journal, 510. EVIDENCE. 361 or confinement an unusual period before trial; the fact that he has alread}" been subjected to punishment or special discipline on account of his offence; the fact that his act was in a measure sanctioned by the act or practice of superior authorit3% &c. XXVIII, 104, Augrist^ 1868. 1302. The law presumes that public oflicers duly perform their official functions, and this presumption continues till the contrary is shown. 42, 24t!, Any list. 1890. 1303. Official communications between the heads of the depart- ments of the Government and their subordinate officers are privileged. Were it otherwise it would l)e impossible for such superiors to admin- ister effectually the public affairs with which the}" are entrusted. 52, 344, J/f/n'A, 1892. 1304. Where a witness for the prosecution was permitted l)y a court- martial to temporarily suspend his testimony and leave the court- room for the purpose of refreshing- his memory as to certain dates, held that such action was irregular and the further testimony of the witness as to such dates inadmissible. By the course pursued the court and accused were prevented from knowing by what means the memory of the witness had been refreshed — whether, for instance, it may not have been refreshed by oral statements of some person or persons. 24, 284, May, 1888. 1305. A wife is not a competent witness to prove a charge of failing to support her, for which her husband is on trial. XL VII, 521, Sep- tember., 1884-. 1306. Where a conviction of rape rested mainly on the testimony of the victim, a child of eight years of age, held that the competency of the witness was doubtful, and that the trial should have been sus- pended and the child instructed.' L, 37, Fedrrnary., 1886. 1307. An insane person is no more competent as a witness before a court-martial than at common law. Testimony admitted of a person shown to be insane should be stricken out on motion made. 50, 270, ]V(>re),d)e,\ 1891. 1308. Upon a trial of a cadet of the Military Academy, the court, against the objection of the accused, required another cadet, intro- duced as a witness for the prosecution, to testif}' as to facts which would tend to criminate him. Held that such action was erroneous, the not answering in such cases being a privilege of the witness only,"^ who (whether or not objection were made) could refuse to testify, and who, if ignorant of his rights, should be instructed therein by the court. 38. 194, January, 1890. ^ Greenleaf on Evidence, § 367. "That tlie aofused caiuiot take advantage of the error, see Greenleaf on Evidence, 16tli edition, vol. 1, § 469 d, p. 613. 362 EVIDENCE. 1309. Copies of records of courts martial authenticated under the seal of the AVar Department, as provided by Sec. 882, Rev. Sts., are admis- sible in evidence "equally with the originals." LIV, 77, July^ 1887. Similar]}' hdd^nih. respect to such "patents, deeds or other convey- ances or evidences of title,"''' by which the United States holds lands, as are on file in the War Department. Cards 748, Decemher, 189J^,; 1577, July. 1895. 1310. The enlistment paper, the physical examination paper and the outline card are original writings made Iw officers in the per- formance of duty and competent evidence of the facts recited therein. Copies, authenticated under the seal of the War Department, accord- ing to Sec. 882, Rev. Sts., are equally admissible with the originals,^ 61, 218, August, 1893. 1311. Muster-in rolls are primary evidence of the dates of muster in as muster-out rolls are of the dates of muster-out. It is not the pri- mary object of either muster-and-pay rolls or muster-out rolls to fix the date of muster-in. They cannot therefore be used to impeach the muster-in as fixed by the muster-in roll. Official records are of a high class of evidence as to the facts which are recorded in them pursuant to the special objects for which they are kept, but they have not this weight as evidence with reference to other facts incidentally recorded in them.- Card 9121, iJecemler, 1900. 1312. War Department Orders of May 15, 1894, sec. XV, para- graph 2, provides that "official copies of orders and other papers shall be authenticated solely by an impressed seal of the Bureau issuing the same, e. ^., 'Adjutant-GeneraPs Office, Official Copy.'" This provi- sion was intended and should be construed to apply to copies of papers to be used in the administrative business of the War Department and not as evidence before courts, either civil or military. Copies so authenticated would not be admissible as evidence in civil courts. They would have to be authenticated as required b}' Sec. 882, Rev. Sts. In some cases copies of papers for use as evidence before courts- martial have been authenticated in the manner specified in Sec. 882, but in the majority of cases they have been authenticated by the official stamp of the bureau in the manner stated al)Ove. In the absence of objection, copies so authenticated by the bureau stamp would be legally admissilile before courts martial; and as courts martial are not bound to follow strictly the rules of evidence observed by the civil courts, the Secretary of War could legally provide 1)v regulation that 1 Compare Evanston v. Gunn, 99 U. S., 660; Sandy White v. IT. S., 164 U. S., 100, ^Greenleaf Ev., 16 Ed., vol. 1, §§ 491, 493. Am. & Eng. Ency. of Law, 1st Ed., vol. 20, p. 513. EVIDENCE. 363 in couTt martial trials such copies would be admissible notwithstand- ing the objection of the accused/ Card 8471, June^ 1900. 1313. The Morning- Report Book is an original writing. To prop- erly admit extracts in ev'idence, the book should ])e first identified by the proper custodian, and the extracts then not merely read to the court by the witness, but copied and the copies, properlj- verified, attached as exhibits to the record of the court. 61, 218, August^ 1893. 1314. A descriptive list is but secondar}^ evidence and not admissible to prove the facts recited therein. It is not a record of original entries, made by an officer under a duty imposed upon him by law or the cus- tom of the service, but is simplj' a compilation of facts taken from other records, 61, 218, August, 1893. 1315. Copies of pay accounts (charged to have been duplicated) are admissible in evidence where the accused has by his own act placed the originals bej^oud the reach of process, and fails to produce them in court on proper notice. XL VII, 269, August., 1883. Similarly" held., where the originals were in the hands of a person who had left the United States so that they could not be reached, on notice to the accused to produce them or otherwise. LVI, 604, Septeimher, 1888. 1316. To the admission in evidence of a letter wa-itten and signed by the accused (of which the introduction is contested), proof of his handwriting is necessary. 61, 218, August., 1893. Evidence of hand- writing b}" comparison is not admissible at common law except where the standard of comparison is an acknowledged or proved genuine writing already in evidence in the case. A writing not in evidence and simply offered to be used as a standard is not admissible. XLIX, 566, Dccenil>ct', 1885. 1317. At the trial, in 1894, of an oflicer charged with a disorder and breach of discipline which involved the killing by him of another offi- cer, there was offered in evidence, on the part of the accused, to exhibit the character and disposition of the officer killed, a copy of a general court-martial order of 1872, setting forth certain charges alleging dis- honest and unbecoming condvict, upon which the latter officer was then tried and convicted, and the findings of the court thereon. Held that such evidence was wholly inadmissible for the purpose designed. 65, 270, June, 189^. ^ In accordance with these views, the following regulation by the Secretary of AVar wag pjihlished in G. O. 91, A. G. O., 1900: "Copies of any records or papers in the before any court martial, court of inquiry, or in any administrative matter under the War Department." See Court-Mar. Manual (1901), p. 42, note 3. 364 EXTRADITION. EXAMINATION. 1318. Jrehl that assistant surgeons of the rank of lieutenant were subject to examination under the act of October 1,1890, c. 1241, *'to provide for the examination of certain officers of the army and to regulate promotion therein.'"^ 44, 374, Decemhefi'^ 1890. 1319. ILhl that Sees. 1206 and 1208, Rev. Sts., relating to the exami- nation of officers of the engineer and ordnance corps, were not repealed by the act of October 1, 1890, c. 1241, but remained fully in force. ^ 44, ss, Xove)nhci\ 1890. 1320. Whore an officer was sentenced "to retaiil his number on the lineal list of second lieutenants of infantry for three years," held that the sentence, while operative, rendered him ineligible for promotion under the act of October 1, 1890, and that his promotion pending the execution of the sentence would operate as a pardon. 47, 293, May., 1891. 1321. An enlisted man who has failed to pass a departmental l)oard convened under G. O. 79, A. G. O., 1892, is not eligi])le for the final competitive examination authorized by the same order. Card 2422, July, 1896. 1322. Held that the construction given })y General Orders 128, A. G. O., 1890, to the act of October 1, 1890, was correct. Card 3670, JVovemher, 1897. 1323. After the Secretar}' of War has approved the findings of an examining board and his action thereon has been communicated to the party examined, it is no longer revocable. Card 6671, June., 1899. EXTRADITION. 1324. By Art. II of the extradition treaty with Mexico of Dec. 11, 1861, it is stipulated that: "In the case of crimes committed in the frontier States or Territories of the two contracting parties, requisi- tions ma}' 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 authorit}" of the districts or counties bor- dering on the frontier as may for this purpose be duly authorized by the said chief civil authority of the said frontier States or Territories, or when, from an}^ 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 custody within the State of Texas, advised., that as a ^See act of July 27, 1892 (27 Stats., 276). 2 See G. O. 128 of 18(»(), par. Vlll. EXTRA DUTY PAY. 365 requisition by the Mexican government direct!}^ 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 trans- mitted to the Secrctar}^ of War to be referred to the State Depart- ment. XXXVIII, 118, July, 1876. 1325. The extradition treaty between the United States and Mexico provides that "when from an}' cause the civil authority" of a frontier State, &c., of either nation "shall be suspended," the requisition shall be made "through the chief military 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 civil 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 clearl}" 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, June, 1869. 1326. Fugitives from justice are not surrendered hj one government to another under extradition treaties, except on account of offences committed within the jurisdiction of the government demanding their extradition. So where a U. S. soldier deserted and went to Canada and there forged a check on the Assistant Treasurer, New York, which was paid, held that he could not be extradited for the forgery thus committed outside the jurisdiction of the United States. 53, 1:1:6, 2ray, 1892. 1327. A soldier of the United States who has deserted to a place under the jurisdiction of Great Britain cannot be extradited on account of a military offence; such offences not being provided for in the extra- dition treaties between that country and the United States. 53, 416, May, 1892. 1328. The arrest and delivery of a soldier serving in the Philippine Islands or Cuba to the authorities of one of the United States is not, during the militar}' occupancy of such places by the United States, a matter of international extradition. If a soldier so serving has been indicted in one of the States, the War Department may legally direct his surrender to such civil officer as may be sent, supplied with the proper papers, to receive him. Cards 5955, 6055, 2Iarch, 1899. EXTEA DUTY PAY. 1329. The act of July 13, 1866, c. 176, s. 7 (now Sec. 1287, Rev. Sts.) authorizes the payment to soldiers "working as artificers" of thirty -ffve cents "per day," in addition to their regular pay. The 366 EXTRA DUTY PAY. "da} ,*' 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 held that a soldier, who did extra duty as an artificer at the IT. S. Militar}- Academj' both night and day, was not entitled to a double compensation therefor.^ XXVI, 276, Dccemher, 1SG7. 1330. JFehl that enlisted men of the Signal Service, while emploj^ed in constructing and working telegraph lines, and in ol)serving and reporting storms and making reports for the benefit of agriculture and commerce might properly be classed as ""artificers" within the meaning of the act of 1866, and paid accordingly.^ XXXVIII, 184, Jidi/, 1S70. 1331. JleJd that enlisted men detailed as ""packers" or "chief pack- ers "' 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. XXXVI, 530, June^ 1875. 1332. In view of the interpretation by successive Attorney's General,' of the term "other constant labor," employed in the act of March 2, 1819 (the original of the provision of Juh' 13, 1866), as including clerical service, and of the continued practice of the Government in accord with such interpretation, held that enlisted men detailed as clerks might properly l)e regarded as entitled, for constant labor as such "of not less than ten days' duration," to the extra duty pay of twenty C2Xit^ per diem. XXXVII, 297, January., 1876. But held., in view of the positive prohibition of Sec. 1765, Rev. Sts., that a soldier could not legally be allowed any additional compensation for such service further or other than such laborer's pay; and this although at the time of acting as clerk he was on leave of absence. XLII, 56-1, March., 1880. 1333. JLld that an arsenal was a j^>as^ within the meaning of Sec. 1231, Rev. Sts., relating to the establishing of schools at posts, &c., and that an enlisted man detailed as a school teacher at an arsenal was therefore entitled to the extra duty pay specified in the act of March 3, 1885, amending Sec. 1287, Rev. Sts. LV, 30, Septemher, 1886. 1334. The provision as to extra duty pay of Sec. 1287, Rev. Sts., is evidentl}^ intended to cover only such labor as may legitimately be performed in the militar}^ service by soldiers as such. So held, that an enlisted man could not legally be paid extra duty pay for services ^But see now A. R. 171 (189 of 1901). ^ Uniler the Hul)sequent at't, however, of June 20, 1878, reposing in the Secretary of War a special discretion on the subject, tlie right to the extra-duty pay has l)een restricted to a certain portion of tliis class of soldiers. See G. 0. 54, Hdqrs. of Army, 1878. See also the Army Regulations and the annual army appropriation acts. » 2 Opins. At. Gen., 706; 3 «/., 116; 4 id, 325. And see also 10 id., 472. EXTEA DUTY PAY. 367 proposed to be rendered as a telegraph operator to a private telegraph company, the 8anie being an employment for which he could not legally be detached from his legitimate duties as a soldier. LI, 281, Decem- her, 1886. 1335. The act of June 20, 1890, provides for the muster-out of the men of the Artiller}' Detachment at AYest Point and their immediate re-enlistment as ""Arm}' Service men in the Quartermaster Depart- ment." Held that this specific provision confined this particular detachment to the former artillerj-men, but that it did not preclude the detail, under the general power of detail and assignment, of other enlisted men of the army for duty under the quartermaster at West Point, and that such men, when so detailed, would be entitled to the usual extra-duty pay allowed by law and regulations. 56, 327, Novem- her, 1892. 1336. The extra-duty pay is payaljle only for "constant labor for a period of not less than ten days." Thus held thixi a non-commissioned ofiicer who acted, during a single day, as auctioneer at a sale of con- demned quartermaster stores was not legally entitled to the payment of a ten per cent commission on the proceeds of the sale or to any other compensation whatever,^ and that the post quartermaster, in paving him the said commission, was chargeable with a misapplica- tion of pu])lic funds. 60, 363, July, 1893; 62, 95, October, 1893. 1337. The Army Appropriation Act for the fiscal year ending June 30, 1896, provided for extra duty pay to enlisted men in the Subsist- ence and Quartermaster Departments, but made no provision for pay- ment to enlisted men detailed on extra duty outside of those departments; Held, therefore, that there was no appropriation from which an enlisted man detailed on extra duty as messenger and typewriter at the United States Infantry and Cavahy School, Fort Leavenworth, Kansas, could be paid. Card 2036, Felruary, 1896. 1338. The Army Appropriation Act of 1885-6 (23 Stats., 359), pro- vided that thereafter extra dut}' pay of enlisted men on extra duty at constant labor of not less than ton days would "be paid at the rate of fifty cents per day for mechanics, artisans, school teachers and clerks, at army, division and department headquarters, and thirty five cents per day for other clerks, teamsters, laborers and other enlisted men on extra duty." Held that this would authorize the payment of extra duty pa^' to enlisted men detailed as clerks at post and regi- mental headquarters whenever there is money available for such pay- ment; but reinarlied that the current army appropriation act contained 'This view was concurred in by the Second Comptroller of the Treasury, in a decision published in Circ. No. 3, A. G. O., 1894, overruling prior decision of May 22, 1893. 368 EXTRA DITTY PAY. no appropriation from which the piynient could be made. Card 3762, January. J898. 1339. Sec. (5 of the act of April 20, 1898, "For the better org-aniza- tion of the line of the army/"' in providing that in war time no addi- tional increased compensation (/. d., additional to the twenty per centum increase) shall be allowed to soldiers performing what is known as extra or special duty, applies to increased compensation made directly from appropriations for the support of the arm}" and not to payments made from the company-, l)akery or post exchange funds. Cards 4414, 4530, 4540, 5442, June to Deceinhcr, 189S; 5661, January, 1899. 1340. The army regulation providing for the payment from the com- pany fund of the extra compensation of twenty-live cents per day to enlisted men who are cooks has reference to ordinary enlisted men and does not apply to persons enlisted under the act of July 7, 1808, as cooks with the rank and pay of corporals.^ Card 4762, August, 1898. 1341. War between the United States and Spain as declared by act of Congress approved April 22, 1898, existed when the act of April 26, 1898, was passed. IM(J therefore, that enlisted men in all depart- ments of the arm}- ceased to be entitled to extra duty pay upon the date of the approval of the last named act. Cards 4089, 4135, 4143, 4144, May, 1898; 4256, June, 1898. 1342. The deficiency appropriation act of May 4, 1898, covering a period to January 1, 1899, appropriated a named sum for "extra pay to soldiers employed on extra duty under the direction of the Quar- termaster's Department."' Held that this appropriation was subject to the prohibition contained in the act of April 26, 1898; and that unless there was a time of peace before January 1, 1899, it should be allowed to lapse. Card 4080, 2fay, 1898. 1343. JMd that as long as the 20 per centum increase of pay was paid to enlisted men under the act of April 26, 1808, the payment of extra duty pay was prohibited. Cards 6322, 6340, 6411, AjrrlJ and 3fay, 1899. 1344. Held that under the Army Appropriation Act approved May 26. 1000, all enlisted men of the regular or volunteer army not serving in Porto Rico, Cuba, the Philippine Islands, Hawaii, and the Terri- tory of Alaska, could be paid extra duty pay from May 26, 1900, in accordance with the usual regulations and appropriation laws govern- ing such payments. Card 6322, June, 1900. 1345. Held, m view of the provisions of Circular 22, A, G. O., 1898, A. P. 960, and sec. 6 of the act of April 26, 1898, that an enlisted man could not receive extra compensation for services as reporter of a court-martial. Card 7334, November.^ 1899. 'The pay of cooks fulisted since the act of March 2, 1899, is that of sergeants of infantry. FINAL STATEMENT. 369 EXTRA PAY— OF VOLUNTIERS. 1346. Under the act of March 3, 1865, c. 81, s. 4, by which "officers of volunteers"'"' in commission at its date and continuing in service to the end of the civil war were granted three months' extra pay/ lield 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 sen- tence having been evidently intended to affect his ordinar}^ pay and not the gratuitj^ accorded by the act. XXV, 545, May^ 1868. But Jtdd 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, July, 1866. And held that a medical storekeeper, appointed under the act of May 20, 1862, and mustered 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. XXXIV, 459, September, 1873. R FINAL STATEMENT. 1347. In a case where the legality of making payment on certain transferred final statements was questioned on the ground of the alleged fraudulent enlistment of the soldier, remarlied that the practice of allowing the final statements of a soldier to be cashed hj a noncom- missioned officer or other soldier, by whom they are then presented for payment, resulting, w^here, as in this case, the payment is ques- tioned, in placing enlisted men in the attitude of contesting money claims with the United States, was unmilitary and impolitic and should be discontinued. 50, 447, Deceiriher., 1891. 1348. AVhere a company commander certified in the usual form to the correctness of the final statement of a soldier of his company, in which statement such soldier was erroneously given credit for an amount of detained pa}^ not actually due him, and upon which he was ^ For the latest statutes respecting extra pay upon muster out of both oflBcers and enhsted men of U. S. Volunteers, see act of January 12, 1899 (30 Stats., 784), and Army Api>ropriation Acts, approved March ?>, 1899, and May 26, 1900. * Compare United States v. Merrill, 9 Wallace, 614. 16906—01 24 370 FINDING. thereupon paid such amount by the pa3niiastei', lield., in view of par. 736, A. R. (1889), that the company commander was accountable for the amount thus wrong-fally paid and lost to the United States.^ 50, 358, Novemler, 1S91. 1349. Where the company commander who certitied to the final statements of a soldier of his company neglected to have debited against his account therein an amount of thirty dollars due by the soldier as the purchase money of his discharge, so that this amount was not in fact collected from the soldier, JieJd that the officer was chargeable with the amount thus lost bv his neglect. 65, 375, July, 189 If.. 1350. Where a discharged volunteer soldier made out fraudulent final statements and presented the same to a paymaster for payment, advised that the matter be referred to the Department of Justice, that the man might be proceeded against under Sec. 5438, Rev. Sts. Card 7284, Novemher, 1899. 1351. Where a discharged soldier regularly assigned his final state- ments which upon presentment for payment were found to call for more than was in fact due, Jield that the difference between the amount paid and the amount erroneously called for on the final state- ment could be made the sul)]"ect of a claim against the discharged sol- dier, the assignor, but not against the United States. The man having reenlisted, it was further held that a stoppage against his pay to satisfy the claim above referred to would be a stoppage to satisfy a private claim and therefore not authorized. Card 8355, June., 1900. FINDING. 1352. The finding of the court should ))e governed bv the evidence, considered in connection with the plea. Where no evidence is intro- duced, the general rule is that the finding should conform to the plea. XXXVII, 409, Ifarch, 1876; XXXVIII, 188, July, 1876. But where an accused pleads guilty to the specification and not guilty to the charge, the question submitted to the court is whether the facts alleged in the specification sustain the charge as a matter of law, and in such a case the court may find guilty of both charge and specification. 49, 471, Oetoher, 1891. 1353. 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 finding of not guilty, or guilty without iNote that A. R. 654 of 1895 (736 of 1901), contains the provision (not in A. R. 786 of 18S9) that "the disbursing officer cannot i)rote('t liiinself in an erroneous i)aynient made without due care by charging lack of care against the officer who gave the certificate." FINDING, 871 attaching criminality, on the speciiieation. So, a finding of guilty upon a well pleaded specification, apposite to the charge, followed by a finding of not guilty either of the ofience charged or some lesser ofi'ence included in it (see § 1350, ^;as7^), would be an incongruous ver- dict. IV, 275, Octoher^ 1863. No matter how manj^ specifications there may be, it requires a finding of guilty or not guilt}" on but one specification (apposite to the charge) to support a similar finding upon the charge. IX, 90, May, 1861^. 1364. 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 b}^ the court to be proved only in part, the finding shall show specifically what is found to be proved and what not. V, 398, Fehruary, 1865; XVI, 73, Ajyril, 1865. 1355. It is a peculiarity of ^ the finding at military law, that a court martial, where of opinion that an}'^ portion of the allegations in a speci- fication 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 siihstitute correct words or alle- gations in the place 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 suffi- cient thereunder, the court may then properly find the accused guilty of the charge in the usual manner. XXIII, 188, August., 1866. 1356. It is not competent for a court martial to find an accused not guilty of the specification, and j'et guilt}" of the charge, where there is but one specification. By finding him not guilty of the specification they acquit him of all that goes to constitute the ofi'ence 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 with such exceptions or substitutions as may ))e necessary to present the facts as proved on the trial, and then guilty of the charge. V, 576, Jan uary., 1864- 1357. Familiar instances of the exercise of the authority to except and xahstitute in a finding of guilty occur in cases where, in the speci- fication, the name or rank of the accused or some other person is erroneously designated, or there is an erroneous averment of time or place, or a mistaken date, or an incorrect statement as to amount, quan- tity, quality, or other particular, of funds or other property, &c. Xill, 398, 402, jTSruary, 1865; XIV, 228, 3farch, 1865; XXVI, 435, F.hi'uary, 1868. 1358. In finding guilty upon a specification, to except from such finding the word or words which express the gravmnen of the act as 372 FINDING. charged and found, is contradictory and irregular. As, from a find- ing' of guilty on a specification to a charge of fraud under Art. 60, to specially except the word "'fraudulent'' or "fraudulentl}"," while at the same time finding the accused guilty generally upon the charge. XI, 41, U, 81, October, 1864. 1359. 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 kindred offence included as a constituent element in the specific offence cliarged} Of this form of verdict the most familiar instance is the finding of guilt}^ of absence- without-leave under a charge of desertion. A full acquittal of deser- tion includes, of course, an absence-without-leave involved in it; but where the evidence falls short of establishing a desertion but shows an unauthorized absenting of himself by the accused, he may and should, be convicted of absence-without-leave, as his actual ofience. In arriving at this conclusion, the findings on the specification and charge should be consistent, and the finding on the former should be such as to support the latter. In their finding of guilty upon the specification, 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 him- self without authority" being substituted. The finding on the charge should regularlj'be " not guilty, but guilty of absence-without-leave.*'^ VII, 357, 616, 634, March and May, 1861^; IX, 24, 26, 46, 49, May, 18GJt; XlII, 655, May, 1866. 1360. 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 held that it was not a finding of a lesser included offence to find the accused guilty mereh' of absence-without-leave under a charge of a violation of the 42d Article of War in abandoning his post before the eneni}'. XI, 274, December, 186]^.. And so held of a finding, under a charge of a viola- tion of Art. 30, of not guilty l)ut guilty of a violation of Art. 40. XI, 276, Decemher, 186.!),. So, where a soldier charged with "conduct to the prejudice of good order and military discipline," in concealing the fact that a fellow soldier had appropriated to his own use certain public ' Bee 13 Opins. At. Gen., 460. ^Compare Reynolds?'. People, S3 Ills., 479, and note the similar authority given in criminal cases in the United States courts, by Sec. lOM.'i, Ttev. Sts. ^A simple fhidiug, however, of guilty of absence without leave, though an irregu- lar form, would amount in law to an accjuittal of the higher offence charged. Com- pare Morehead v. State, 34 Ohio St. 212: and see § 1093, ante. FINDING. 373 property, was found not guilty of the specification as laid, but guilty of •■ having stolen the property himself"" and guilty of the charge, and was accordingly sentenced to imprisonment, — hAd that such a finding was manifestl}^ 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 properl}' form the subject of a finding. The remission of his sentence therefore 7'ecommended. XXXIV, 569, Octoher^ 1873. 1361. It is a further peculiarity of the finding at military law that, where an accused is charged with "conduct unbecoming an officer and a gentleman,'' or with any specific offence made punishable b}' 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 of 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 specifi- cations) and not guilty of the charge but guilt}^ of "conduct to the prejudice of good order and military discipline.'" (See § VdQZ, jjost.) Such a form of finding is now common in our practice, especially where the charge is laid under Art. 61, and its legalit}' is no longer questioned. V, 265, JS^ovemher^ 1863; IX, 656, Sej)temhei\ I864.; XI, 87, November, 1861^,; XXIX, 299, October, 1869; 64, 193, March, 189J^. 1362. The authority thus to find, however, has not been extended beyond the case indicated in the last paragraph: the reverse, for exam- ple, of this form of finding, has never been sanctioned. A finding of guilty of a certain sjyecific offence, under a charge of another specific offence, or under a charge of "conduct unbecoming an officer and a gentleman," or of "'conduct to the prejudice of good order and mili- tary discipline.'' would be wholly irregular and invalid. Thus a find- ing of guilty of disobedience of orders (or of a violation of Art. 21) under a charge of nuitiny in violation of Art. 22, or a finding of drunkenness on duty (or of a violation of Art. 3S) under a charge for a drunken disorder laid under Art. 62 or 61, would ])c not only unau- thorized 1)ut now almost unpi-ecedented, and, if such a finding were made, it could scarcely fail to l)e formally disapproved. And so of a finding of "conduct un])econiing tin ofiicer and a gentleman'' under a charge of "conduct to the pn^judice of good order and militar}' disci- pline." XI, 274, JDecemher, 186 J^; XVI, 532, Septemler, 1866^ 1363. The general finding of "conduct to the prejudice," &c., in the cases indicated in § 1361, crnte, is sanctioned in order to prevent a failure 37-i FINDING. of justice, not for the purpose of relieving the accused of any of his due share of culpability. It should not therefore be resorted to where the specific offence charged is substantiall}^ 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 estab- lished by the evidence, fixed unmistakabl}' upon the accused dishonor- able behavior compromising him officially and socially, — Iteld that a finding by the court that he was guilty only of "conduct to the preju- dice of good order and military discipline" should not be approved; in such a case the court should be reconvened for the purpose of induc- ing, if practicable, a finding in accordance with the facts and with jus- tice. XXX, 4!»5, July, 1S70. 1364. Where, upon the finding, the vote on a charge or specification is tied^ the accused is, in law, found not guilty thereon; a majority vote being necessarj' to any conviction. XXXI, 610, August, 1871 j XXXII, 126, Novemler, 1871; XLV, 884, June, 1882; Card 2003, January, 180G. 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 irregular and improper. XXXII, 126, supra. 1365. 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 witnesses. In its finding, therefore, the court may, in connection with the testimony, properly take into consideration the appearance and deportment of the witnesses on the stand, and their manner of testifying especially when under cross-examination.^ XXX, 383, -I-tT, ^hnj and June, 1870. 1366. In a case where a court-martial made such exceptions and sub- stitutions in its finding upon the specification to a charge of "Forgery to the prejudice of good order and military discipline'' as to negative the material allegation of false writing, Jicld that there was no legal basis for the finding arrived at of guilty of the charge. 31, 117, March, 1880. 1367. Held that a finding, under a charge of desertion, of not guilty of desertion but guilty of a violation of the 40th Article of War, was not allowa])le and should be disapproved; the oijence made punishal>le by that article — quitting guard, &c. — not necessarily being or involv- ing an absence-without-leave in the militar}^ sense, and the finding not being necessarily a conviction of the absence-without-leave contained in desertion. LYII, 22, Octoher, 1888. ^See § 2232, pont, and compare Callanan v. Shaw, 24 Iowa, 441. That a court cannot arbitrarily disbelieve and reject from consideration the state- ment, duly in evidence, of a witness, not clearly shown to have perjured himself, is held in the case of Evans c. (ieorge, 80 Ills., 51. FINE. 375 1368. Upon a proposed enactment providing that the members of courts martial be allowed, at their own request, to have their individual votes upon the finding- or sentence entered upon the record, advised that the same be not favored by the Secretary of War. Such a pro- ceeding- would indeed relieve self-respecting members from being impli- cated in an unjust or irrational finding- or sentence, but it w^ould mate- rially impair the efl'ect of the judgment of the court if the composition of the vote were to be thrown open to scrutin}" and discussion. The proceeding indeed might readily, contrar}^ to the spirit of the Sttth Arti- cle, disclose the votes of all the members — as where, in a court of nine, four requested a record of their personal votes. 63, 263, January^ FINE. 1369. The oxAj fine known to military law is the fine authorized to be imposed by way of punishment by sentence of court martial. No military commander is empowered under any circumstances to impose a fine upon an oflicer or a soldier. VIII, -144, J/r«/, ISGIi.. 1370. A fine is distinguLshed from a "stoppage." The former is a pimishnitnt and therefore imposable only by court martial. The lat- ter is a charge on account, being an enforced reimbursement, 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, extra clothing issued, reward paid for apprehension as a deserter, &c. — or for an amount due an individual and expressly authorized b}' law or regulation to be thus charged.^ XXXV, -ioT, July, 187 If.; 38, 88, Jcumary, 1S90. 1371. 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 l)y executive authorit3\ VII, 52, 643 January and 2fay, ISGJj.; VIII, 632, June, 1864- -^ court martial, in sentencing a party to pay a fine, has no authority to direct the collec- tion 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. VIII, 298, April, 186J,.. 1372. An officer on trial applied 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 appeared it was found that they could give no material testimony iSee par. 1390, Army Regulations (1568 of 1901), and § 79, ante. 376 FLAG OF TRUCE. upon the points indicated in the affidavit. The court, in making up its sentence upon conviction, proposed to impose upon the accused (in connection with imprisonment) a fne of two hundred dollars as the estimated cost to the Government of procuring the attendance of the said witnesses. Advised that the facts stated did not constitute a proper basis for the imposition of such fine as a punishment for the oli'ence for which the officer was convicted. His conduct in the matter, if deemed so culpable as to constitute a military offence, should be made the sub- ject of a separate charge to be investigated on a separate trial. XXIX, 329, October, 1869. 1373. Where an officer, sentenced (in connection with dismissal) to the paj^ment of a fine and to imprisonment till the fine was paid and held for some time in confinement by reason of the non-payment of the fine, applied to be released, suggested that, in order to protect the Government from fraud, the procedure prescribed by Sec. 1042, Rev. Sts. , in cases of ' ' poor convicts," imprisoned under sentences of United States courts, be in sul)stance followed, before exercising any clemency in his case. XXXIV, 329, June, 1873. FLAG OF TRUCE. 1374. The use of flags of truce Ijy the enemy during the civil war was recognized as a belligerent right. ^ But the admission by flag of truce within the lines of the U. S. army in time of war of persons coming from the Hnes of an enemy cannot entitle such persons to immunit}" from subsequent inquiry into their character and business, or from restraint and detention 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 temporar}' protection not to be continued after the immediate mission of the flag' has been accomplished. V, 193, OctoJjcr, 1863; VI, 434, Octoler, 186^; VIII, 612, June, 186^. So held that a person who, during the war of the Rebellion, availed himself of a flag of truce to enter our lines for an illegal purpose, was in no degree protected by the flag from liability to arrest upon his pur- pose becoming apparent, or from amenabilit}^ to trial and punishment for any overt act in violation of the laws of war.' XIX, <)73, Ju/i/, 1866. "^ ' Williams v. Bruffy, 6 Otto, 176, 187. ^ See luHtruetions relative to the dispatch and reception of Flags of Truce, prepared in the Judge- Advocate General's Uliice, published in G. O. 43, A. G. O., 1893. FORFEITURE BY SENTENCE. 377 FOREIGN SERVICE. 1375. In the absence of express authority from Congress, an officer of the army cannot accept remuneration from a foreign power in return for militarj^ or other public service rendered, without a viola- tion of Art. I, Sec. 9, par. 8, of the Constitution. Nor can such an officer (in the absence of such authority) properl}^ be granted a leave of absence for the purpose of rendering foreign service, even without compensation, 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 he rendered to the United States.^ XXXVII, U8, April, 1876. FORFEITURE— BY OPERATION OF LAW. 1376. The forfeitures of pay, &c., incurred l>y deserters under army regulations (see Desertion), need not be adjudged in the sentence imposed upon the offender.^ Such forfeitures attach by operation of law independently of conviction or sentence, and any reference to the same in the sentence b}^ the court must be surplusage. VII, 207, Feh- Tuarij, 1861^; L, 421. Jane, 1886; 49, 150, Sej^femljer, 1891; Card 4937, Sepfemher, 1898. 1377. A forfeiture b}' operation of law cannot l)e the subject of remission. XXXII, 390, Mcvrch, 187°2. An amount duly forfeited by desertion under arm}" regulations, when paid into the Treasury, cannot be withdrawn except 1) v the authority of Congress. XXXVIII, 618, June. 1877. 1378. A soldier sentenced to dishonorable discharge onh', being dis- charged by way of punishment for an offence, forfeits his travel pay under Sec. 1290, Kev. Sts., by operation of law, and any retained pay due him would, under Sec. 1281. Rev. Sts., as construed by par. 1269, A, R. (1895), be likewise forfeited. Card 3608, November, 1897. FORFEITURE BY SENTENCE. 1379. A court martial, in forfeiting pay l)y 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 ^ Note in this connection the opinion of the Attorney General, in 15 Opin^., 187, to the effect tliat the Centennial Coniniissioners appointed by the President under the act of ]\hirch r5, 1871, were officers of the United 8tates, holding offices of tnist, (thougli, in tho absence of salary, not of prujit,) and that therefore, in view of the prohiijition of Art. I, Sec. 9 par. 8 of the Constitution, they could not, without the authority of Congress, legally accept presents from a foreign government. ■■^ See U. S. ('. Landers, 2 Otto, 77, 79; 13 Opins. At. Gen.^ 188, 199. 378 FORFEITURE BY SENTENCE. other source of information being necessary. So lield that a sentence which required a soldier to forfeit an amount of pay sufficient to reim- burse the United States for the value of certain property appropriated by him, without fixing the value of such property, was irregular, and might properly be disapproved unless corrected by the court on being reassembled for a revision.^ XXXVII, 186, Octoher, 1868. 1380. Pay cannot be forfeited (in a sentence) by implication. If the court intends to forfeit pay, the penal t}^ of forfeiture should be adjudged in express terms in the sentence." No ofJier punishment, imposable by court martial — neither a sentence of death, dismissal, suspension, dishonorable discharge, nor imprisonment — involves ^>(:^r .§^ a forfeiture or deprivation of any part of the pay or allowances due the party at the time of the approval or taking effect of the sentence.' V, 409, '^ December, 1803; XVI, 676, Novehiber, 1865; XXVIII, 338, January., 1869; XXX, 52, September., 1869; XXXII, 236, January., 1873; 54, 102, June, 1893; 62, 340, November, 1893. Nor can pay (other than '"retained 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, 413, Fel>ruary, 1878. 1381. A sentence forfeiting ""pay'' or '"pay and bounty" does not affect the right of the accused to a pecuniar}^ '"'' allowance'''' — as, for example, an allowance due him for clothing not drawn. XXI, .546, July, 1866. 1382. Clothing issued to a soldier and charged to his clothing account becomes his personal property subject to its use in the military service and ceases to Ije an allowance sul)ject to forfeiture by sentence of a court-martial. Card 8251, June, 1897. 1383. A sentence of forfeiture of "all pay and allowances" includes and forfeits "extra duty pay." XXXIV, 446, /Scpteniher, 1873. 1384. Pay forfeited by sentence of court martial can accrue to the United States only. A sentence cannot forfeit (appropriate, or "stop'") pay for the reimbursement or benefit of an individual, civil or militar}', however justly the same may be due him, either for money ^ Compare case in G. C. M. O. 65, Dept. of Dakota, 1880. -Compare Elliott -?'. Railroad Co., 9 Otto, 57.S. ^This princii)le is well illustrated by the opinion of the Attorney General (13 Opins., 108), concurring with an opinion of the Judge- Advocate General in the case of Major Herod, where it was lu'ld that the fact that the accused had bct'n sentenced to death on conviction of murder did not affect his right to liis pay from tlie date of his arrest to that of the final action taken on the sentence by the President. And see the more recent opinion of the Attorney General of N(>vend)er 9, 187(i ( 15 Opius., 175), to the effect that the pay of officers and seamen of the navy is not divested by the ojieration of sentences of inij)risonment or suspension, but only when forfeited in specific and exjjress terms in the sentence. FORFEITURE BY SENTENCE. 379 borrowed, stolen, or embezzled by the accused, or to satisfy any other pecuniary 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 famil}' of the accused, or for the benefit of a company fund, post fund, hospital fund, &c., none of these funds being mone^' of the United States/ All forfeitures by sentence, whether or not so expressed to be in terms, are to be understood and treated as forfei- tures to the United States, accruing to the general treasury.^ II, 54, March, 18GJ; YI, 177, IX, 240, 257, 275, June, 1861,.; XIII, 91, Decem- her, 1864; 549, Ajxril, 1865;' XNl, 322, June, 1865; XXVII, 422, December, 1868; 450, Jniuary, 1869; XXIX, 535, December, 1869; XXX, 54, October, 1869; LIII, 2, Septeinler, 1886. 1385. Where a sentence imposes a forfeiture of the *' monthly" pa}^ or a part of the "monthly" pay of a soldier, for a designated number of months, the sum forfeited is the amount indicated multiplied b}^ 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.'* XXXIV, 173, Ilarch, 1873. 1386. 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 with the term of the con- finement. XXX, 500, Jaly, 1870. The sentence in such a case imposes two distinct and independent punishments. The remission therefore of an unexecuted portion of one would not afi'ect the other. XXXVIII, 329, October, 1876; 45, 287, February, 1891; Card 1780, October, 1895. 1387. A forfeiture of a soldiers pay, not limited by the sentence 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, «S;c.) of months' pay or of a certain amount of pay (as ten, twenty or more, dollars of his pa}'), is legally chargeable against the pay due and payable to the soldier at the next pay day after the promulgation of the approval 'Rut as tlie post exchanoje, company, and similar funds are agencies or instrumen- talities of the (jiovernment, the pay of otticers and soldiers may be stopped without sentence to reimburse these funds. See §§ 1424-1427, 2384, and note to 2014, po»t. ■•'Soldiers' i)ay forfeited by sentence to the United States was, by the act of March .S, 1851 (Sec. 4818, Rev. Sts. ), apjtropriated for the support of the Soldiers Home. This ajijiropriation, as here exi>resse(l, is of — "All stoppages or tines adjudged against soldiers l)y sentence of courts martial, over and above any amount that may be due for the reinil)ursementof Ciovernment, or of individuals." The "individuals" here intended were nodout)t sutli'rs and laundresses, or other persons (including perhaps the class forwhom "reparation" is ])rovided by Art. 54) to whom a lien on soldiers' pay may l)e given by statute or regulation. ^See opinion of the Judge-Advocate (ieneral published in G. O. 121, War Depart- ment, 1874; also A. R. 951 (1052 of 1901). 38Q FORFEITURE BY SENTEisTCE. of the sentence, and, if no pay is then due or that due is not suffi- cient to discharge the forfeiture, against the pay due and payable at successive pay days till the entire forfeiture is satistied. XXXVII, 563, May, 1876; XXXVIII, 662, July, 1877; XXXIX, 537, Augiist, 1878. 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 satistied as far as practicable out of such pay when paj'able, 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, N'oveuiher. 1877. 1388. Whether, in a case of a non-commissioned officer having pay due him and sentenced to reduction and forfeiture of pay, the for- feiture should be satisfied out of his pay as non-commissioned officer or out of his pay as private after the reduction will properly depend upon the intention of the court, if the same can be gathered from the terms of the sentence. But where a sergeant to whom a month's pay was overdue, was sentenced "to be reduced to the ranks, forfeitmg three months' pay," held that this forfeiture, upon 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 pa}^ as a private.' XXX, 410. J,n>r, 1870. 1389. Where a soldier was sentenced to be dishonorably discharged and to forfeit all his pay except twenty dollars, and, upon his dis- charge, it appeared that he was indebted to the United States in a greater amount, Jtehl that the excepted sum could not legally be ren- dered to him.^ XXXVII, 488, 602, April and June, 1876. 1390. 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, held that he could not legallv be retained in the service be3'ond such term, for the purpose of the full execution of the forfeiture. XVI, 94, 3lay, 1805. 1391. 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, — Jield, on his subsequently re-enlisting, that this balance could not legally be stopped against his pay; the second enlistment ^ In practice, however, such forfeitures are charged only against pay accruing sub- sequently to the date of the order j^romulgatiuu' the sentence. See G. O. 53, Hdqrs. of Army, 1878; par. 951, A. R. of 1805 (105L> of 1901). ^ But see i)receding note. 3 See G. O. 53, A. G. O., 1878; also A. R. 953 of 1895 (1054 of 1901). FORFEITURE BY SENTENCE. 381 being' a new and independent contract and the party contracting not being' .subject to a liabilit}^ attaching- to the distinct status occupied by him under a previous contract. XXXVIII, 662, July^ 1877. 1392. Where a soldier was sentenced to a forfeiture of his pay for six months, but soon after the approval of his sentence was honor- ably discharged from the service (under Art. 4), held that the dis- charge operated as a remission of the unexecuted part of the forfei- ture, and that the same was not revived upon a re-enlistment. L, 501, July, 1886. 1393. 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 officer 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 pa3'ment no illegal act was committed by the officer, and that the paymaster who paid him was not properl}^ to be held accountable for the amount paid. X, 609, Novendjer.^ 186 Jf.. So where a soldier in confinement awaiting the result of his trial by court martial was, contrary to A. R. 045 (1046 of 1901), paid one month's pay, it was held that his title thereto became thereupon vested and was unaffected by the sentence of forfeiture of all pay and allowances subsequently published in his case. Card 8258, June., 1897. 1394. 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 appropriation for the army to the general treasury and becomes public money, and, being in the Treasury, cannot, without a violation of Art. I, Sec. 9, par. 7, of the Constitution, be with- drawn and restored to the party, except by the authority of Congress. XXIII, 642, 659, August, 1867; XXVIII, 63, August, 1868; 567, May, 1869; XXIX, 139, July, 1869. A sentence forfeiting pay can be remitted only as to pay not due and paj^able at the date of the remission. I, 393, October, 1862; VIII, 392, 576, June, 1861^; IX, 196, May, 1861^; X, 676, December, 1861^; XXXV, 372, 2[ay, 187 J^; L, 221, Ajyril, 1886; 34, 334, August, 1889. W^here a soldier's pay has been forfeited 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, September, 1869. If however the sentence was in fact illegal and void, the soldier should be credited on subsequent rolls with the forfeiture as having been illegally collected and the amount refunded to him. Card 5392, November, 1898. 382 FOKFEITURE BY SENTENCE. 1395. 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 genend treasurj" to any particuhir fund. Thus where a soldier convicted of the embezzlement 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. XLIIl, 85, N()ve)Hl>et\ 187 9. 1396. Where a soldier, on enlisting, was paid an amount of money as local hounty, and this money, under an existing regulaticn of the Provost Marshal General's 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 su})sequently apprehended and brought to trial, — advised that the court was not authorized to forfeit this money by its sentence; the same being private property of the soldier held b}' the authorities, not as money due him I)}' the United States but as a special bailment and trust for his personal benefit. XXII, 6-1:2, 3£arch, 1867. 1397. A sentence of dishonorable discharge only, does not carr}" with it forfeiture of pay and allowances (except travel allowances which are forfeited by operation of law under Sec. 1290, Rev. Sts.) due at date of the discharge. 56, 329, November, 189^; Card 3608, Noveviher, 1897. 1398. A forfeiture of "pay " onh% does not affect r/Z/ov/YWCt^.S'. Thus a sentence to forfeit ''all pay now due or to become due,'' though it includes retained pay, does not forfeit money due on clothing account. XLIX, 526, Drcend>er, 1885. 1399. A forfeiture of pay "now due" meaiis, under existing army regulations, due at the date of the promulgation of the approved sen- tence. L, 421, June, 1886; 46, 8, 3Iare/t, 1891. Pay which is not due cannot be forfeited by a sentence purporting to forfeit only pay which is due. 64, 5, February, 1894- 1400. When the proceedings of general courts martial were promul- gated in general court martial orders no difficulty was experienced in making the date of the order the same as the date of the action of the reviewing authorit}'. This is often not practicable when the pronml- gation is in special orders. As the sentence should commence on the date of the action thereon by the reviewing authority, this date should appear in the order of prouuilgation. Amendment of the existing regulation on the subject reconmiended.^ Card 1681, Augu>>t, 1891. ' See pars. 945 and 951, A. R. of 1895 (1046 and 1052 of 1901). FORFEITURE BY SEISTTENCE. 383 1401. Forfeiture bj" sentence of a summar}' court is operative onh^ on pay accruing- after approval of the sentence unless otherwise speci- fied in the sentence. Card 2791, December^ 1896. 1402. In a sentence of forfeiture of " all pay due " (or "all pay now due"), imposed with dishonorable discharge, to add "or to become due'"' would give no further- effect to the sentence. Otherwise where forfeiture is adjudged alone, unaccompanied by dishonorable dis- charge: there the term "or to become due" would forfeit pay falling due after the date of the promulgation of the approval and while the soldier remained in service. 46, S, March., 1891. 1403. A sentence "to be dishonorabh" discharged from the service of the United States, forfeiting- all pay and allowances," has the same meaning that it would have if the words "due him" were added after the word ' ' allowances. " ' Card 3009, March, 1897. 1404. A forfeiture remitted upon approval does not take effect. So where a forfeiture of pay adjudged a deserter was, upon the approval of his sentence, remitted b}' the reviewing authority, Juld that he was entitled to pay from the date of his arrest or surrender and return to military control — the date at which a deserter (A. R. 131; 143 of 1901) is ''considered as again in service," or rather resumes his serv- ice. L, 317, May, 1886. 1405. Where a soldier was sentenced "to be dishonoral)!}' dis- charged, forfeiting- all pa}^ and allowances, and to be contined for three months," and the dishonorable discharge was remitted in approving the sentence, held that the forfeiture was evidently intended to relate to pay due at the date of discharge, and that, as the discharge had been remitted, the forfeiture could apply only to pay due at the date of the receipt at the post of the order publishing- the sentence. LI, 176, Decm>l)er, 1886. 1406. Where a sentence of forfeiture of ten dollars per month for a certain number of months was remitted thirteen days after pronudga- tion, held that the forfeiture not affected by the remission was to be executed by stopping against the soldier's pay the thirtieth part of ten dollars for each and every da}' prior to the remission. LV, 227, Ihc'inha', 1887. 1407. As prescribed in paragraph 952, A. R. (1051 of 1901), an order remitting a forfeiture of pay operates only on the pay which becomes due subsequent to the date of the order; in other words the regulation is based upon the assumption that the forfeiture becomes fully exe- cuted each day as to that day's pay. Card 2332, June, 1896; 5-1:11, I),'e,'nd>er, 1898; 5883, 5898, Fehrmn-y, 1899; 6311, Aj^rH, 1899. 1408. Where a forfeiture of ten dollars per month for three months ' See Circular 6, A. G. O., 1897. 384 FRAUDULENT ENLISTMENT. was imposed upon a soldier (in the first year of his enlistment), held that this could not be executed by forfeiting thirty dollars in one sum when so much had aggregated as pay due, but that, as his available monthly pay was nine dollars onl}" (four dollars being retained under the act of June 16, 1S90), the execution would be best managed by remitting one dollar for each month included in the sentence. 63, 54, Dectrnher, 1893. 1409. Pay for a certificate of merit, like pay for continuous service, has always been held to be a part of the soldier's pay and as such sub- ject to forfeiture by sentence of a court martial. Card 1308, Aprils 1895. FORGERY. 1410. A disbursing officer who pays out money of the United States upon vouchers that are forged will in general make himself liable for the amount paid. Thus where such an officer paid out public money upon transportation requests, addressed to a railroad company and accepted by it, which requests had been fraudulently prepared by a quartermaster's clerk who had forged the name of the quartermaster thereto, held that the disbursing officer was responsible for the amount paid. 56, 208, Octoher, 1892. 1411. A paymaster drew his check in favor of a discharged soldier for the amount due him on final settlement. The payee endorsed the check in blank, and the paymaster then, according to a common prac- tice, sub-endorsed it, adding his official designation, merely for the purpose (though the endorsement did not so state), of identifying the signature of the payee. The writing in the body of the check was then removed or altered and the check filled in for a very much greater amount. The check thus raised was on the next day presented to and paid by the Assistant Treasurer at New York. Held that, while, in the hands of a lona-fide endorsee, the liability of the paymaster would have been that of a regular endorser, parol evidence not being then admissible to show that he endorsed merely for identification,^ yet the loss in this case legally fell upon the Assistant Treasurer whose lia- bility was the same as that of a bank which pays a forged check in a case in which the forgery has not been facilitated by the negligence of the drawer.'^ 53, 312, Mmj. 1892. FRAUDULENT ENLISTMENT. 1412. This ofi'ence (constituted and made punishable as a violation of Art. 62, by the act of July 27, 1892, c. 272, s. 3) is defined in ^ Daniel on Negotiable Instruments, vol. 1, p. 719, and cases cited. ^Byles on Bills (Sharswood's edition), 337, and cases cited. B'RAUDULENT ENLISTMENT. 385 Cire. No. 13, A. G. O. 1892.' The misrepresentation or concealment characterizing- it must have induced tlie enlistment of the soldier and must have related to a fact which if known would have caused his rejection. Where the offence consisted in his having- concealed the fact that he had been discharged with a questionable character — viz., "very good except when intoxicated, then bad" — held that such offence was chargeable as "fraudulent enlistment,-' provided the knowledge of this fact on the part of the recruiting officer would have prevented the enlistment. 63, 153, January^ 1891^,. 1413. A fraudulently enlisting soldier, ma}' be disposed of in either of two ways, viz.^ he may be brought to trial for his offence under the statute, or he may be discharged "without honor."' If brought to trial and convicted, and his sentence does not include dishonorable dis- charge (as it need not do under the order prescribing a maximum punishment for this offence), held that the Government could not properly also summarily discharge him. While it might have resorted to either course, it would scarcely be just to subject the offender to both. 60, 174, June, 189S. 1414. The enactment of the law making fraudulent enlistment a militar}' offence, did not take it out of the law of contracts. Fraudu- lent enlistment has a two-fold character — criminal and civil. In the latter character it is a fraudulent contract which ma}' be avoided, and when a contract is avoided for fraud, the party committing the fraud has no right to the benefits of the contract. Paragraph 1519, A. R. (1,380 of 1895; 1564 of 1901) simply carries out this principle. It is therefore legal under this regulation to summarily discharge a fraudulently enlisted soldier with loss of all pay and allowances, instead of bringing him to trial. 58, 318, March, 1893. 1415. A fraudulent contract of enlistment is not void but voidable on)}' at the option of the Government. The Government, on becom- ing cognizant of the fraud, may avoid the contract, or waive the objection and allow it to stand — in which latter case the accepted serv- ice is as legal as that of any other soldier. Where the fraudulent character of an enlistment contract did not become known until after a part of it had been executed, held, that while the same, as to its. unexecuted portion might legally then be avoided and terminated, yet,, as to the part executed, it was a valid contract, and the soldier could not lawfully be required to refund money paid ior that part. 55, 183^ August , 1892; Cards 355, 359, Septemher, 189 J^; 491, Octoh-r, 1894; 1624, Auf/Kst, 1895; 2022, January, 1896; 2717, November, 1896; 6398, 2f((y, 1899. 1416. There is a distinction b(>tween a fraudulent contract of enlist- 'See Court-Mar. Mamial (IVIOI), page H, note 4. 16906—01 25 38(3 FRAUDULENT ENLISTMENT ment and the character of service thereunder. While the former is voida])le at the option of the Government, the service is legal service and. if the contract he not avoided on account of the fraud, the soldier would be entitled to such a discharge upon completion of his term as his services ma\' merit. And if the discharge is an honorable one, it should in general be viewed as establishing the fact that the service referred to therein was honest and faithful. Card 6406, May^ 1899. 1417. Before fraudulent enlistment was made a military offence by the act of July 27, 1892, it was held that persons fraudulently enlist- ing (except those who were undischarged under a former enlistment) could not be tried for the fraudulent enlistment as a militar}^ offence, because when the act was done they were not in the '' land forces." So in the act of 1892, receipt of pa}' or allowance was made part of the offence. The complete offence therefore is the entry into the service by means of a misrepresentation and the receipt of pay or allowance. The procuring of the enlistment bv means of misrepresentation, &c., and not the misrepresentation itself, constitutes the offence. Card 2768, Jamiciry., 1897; see § 312, ante. ■ 1418. The act of enlisting without a discharge from a prior enlist- ment was punishable as fraudulent enlistment before the enactment of the legislation of fluly 27, 1892, there being no doubt that the soldier so enlisting is in the military service at the time of such fraudulent enlistment. In such a case it is not necessary to allege the receipt of pa}' or allowances. These words were inserted in the act of 1892 to meet the cases of men, not l)ound to service, who fraudulently enlist. It was thought that the view might be taken in such cases that the act of fraudulent enlistment was not committed in the military service and would not be sufficient, taken alone, to form the subject of a militarv charge. ^ In these cases therefore an allegation in the specifi- cation of receipt of pay or allowances is essential to properly describe the military offence of fraudulent enlistment defined and prohibited by the statute. Cards 7275, Fehruary, 1899; 7668, Fehruanj, 1900. 1419. Where r. soldier fraudulently enlists without a discharge from a prior enlistment, he ma}' be brought to trial for desertion and fraudu- lent enlistment, or he may be restored to duty without trial and held to serve either the fraudulent enlistment or the one from which he deserted, or both, at the option of the Government. In practice, if he is held to serve only one, he is discharged without honor from the other. 49, 4-12, October, 1891; Cards 359, SejAemher, lS9Jt.; 2115, March, 1896; 4711, August, 1898; 5592, January, 1899. ^In a recent case {Tn re Carver, lOo Federal Rejxirter, 624) the court said: "Tt may well be doubted whether luider tlie Conytitutiini fraudulent enlistiui^nts can be made offences punishable by courts martial; but tlu-re can be no (juestion that the receipt of pay or allowance after fraudulent enlistment may be made so punishable." FUNDS FROM SAVINGS. 387 1420. AA^'here a man, not a deserter from a prior enlistment, fraudu- lently enlists he may be allowed to serve out such enlistment or he may be discharged therefrom without honor, or brought to trial for the offence of fraudulent enlistment at the option of the Government. Cards 4797, Augw^t, 1898 ; 5481, jDecemher, 1898. 1421. Disqualifications for enlistment ma}^ be statutor}- and not statutory. Congress has said (act of August 1, 1894) that a man whose service during his last preceding term of enlistment has not been honest and faithful is disqualified for enlistment, and this gov- erns all recruiting officers. But where such service has been honest and faithful, there may be disqualifications which would justify the rejection of the applicant; in short, the fact of such honest and faith- ful service takes him out of the class whose enlistment is prohibited by the act of August 1, 1894, but does not prevent his enlistment being- fraudulent if he concealed facts in regard to other previous service, which if known would have caused his rejection. Card 7542, Janu- ary and February., 1900. 1422. A deserter from the Navy of the United States who enlists in the Army by concealing the fact of such desertion, commits the offence of fraudulent enlistment and may be brought to trial therefor. 59, 91, April, 1893. 1423. The dishonorable discharge by sentence of court-martial of a soldier for fraudulent enlistment is not intended as a rescission of the centract but as a punishment for the military offence. Being discharged by way of piuiishment for an offence (Sec. 1290, Rev. Sts.), he is not entitled to travel allowances; but if such sentence does not provide for forfeiture of pay and allowances, he is entitled to all current pay and allowances due him at date of the discharge. Paragraph 1386, A. R. (1564 of 1901), w^hich provides that enlisted men discharged for fraudu- lent enlistment shall not be entitled to pay and allowances, etc., applies only to summary discharges for fraudulent enlistment and not to dis- charges by court martial for fraudulent enlistment.^ Card 3608, J^ovember., 1897. FUNDS FROM SAYINGS. 1424. The companv, hospital, and similar funds, not being public money, it was formerly hdd that stoppages of pay of officers and sol- diers could not be made to reimburse these funds (XL VII, 151, June., 1883; 35, 189, Septemhei\ 1889); Init as the post exchange fund has been recognized as an agency or instrumentality of the Government," ^The Comptroller of the Treasury held contra as to this regulation, in opinion dated January 28, 1898 (not published), and cited in support the case of Fernandes, decided Aug. ] 2, 1897 (4 Comp. Dec, 54). '•'See extract from decision of Court of Claims, in Dugan r. United States, in note to § 2014, post. 388 FURLOUGH. and in view of the reasons upon which such conclusion rests, held that stoppages may legally be made to reimburse post exchange, company, bakery, hospital, and regimental funds. Cards 3171, June^ 1897 ; 7186, Octoher, 1899. 1425. Where a retired enlisted man embezzled $21(\ post exchange funds, Jteld., in view of the fact that such funds are recognized as an instrumentality of the Government, that his pay could legally be stop- ped to reimburse those funds. Card 3171, June., 1897. 1426. Where certain officers had misappropriated and applied to their own use $589. 08, company funds, recomQnended., that that amount be stopped against their pay. Card 7186, October, 1899. 1427. An officer at the time of his death was accountable for $360 company fund. A board of survey reported that he had left in lieu of the money an unindorsed government check for that amount, pay- able to his order and purporting to be for pay due him. It thus appeared that the officer owed the company fund $360, and that the Government owed him the same amount for salary, the check not hav- ing been presented and paid. Advised, therefore, that as an officer's pay may legally be stopped to reimburse the company fund, $360 be stopped against the pay due the deceased officer, and that the check referred to be returned to the drawer to be cancelled. Card 7957, April, 1900. FURLOUGH. 1428. Held that a department commander, in acceding to the appli- cation of an enlisted man for a month's furlough, would not be author- ized to make the grant conditional on his giving up or waiving one month of the three months' furlough allowed at the end of the third year of enlistment b}^ the act of June 16, 1890, c. 126, sec. 2. The provisions of this act are based upon public polic}^, being devised with a view to diminishing the great evil of desertion. In this view they entitle the soldier as a right to the furlough at the time specified and to the discharge at its expiration. The policy is extended to all soldiers, and the right made absolute. It is not even declared that the furlough or discharge shall l)e allowed under "regulations to be pre- scribed;" the grant is unqualified and unrestricted. Any condition imposed by a commander would thus be in contravention of the terms and policy of the law. The furlough given a soldier, pending the term of enlistment, under par. 109 or 110, A. E. (1889), is an altogether dif- ferent matter and should be considered as quite independent of the furlough provided by the act of 1S90. The former furlough is in the connnander's discretion under the regulations, and should ])e gi-anted GARNISHMENT. 389 on the merits of each ease as a separate and distinct act and order ([lute irrespective of the statutory furlough that may be earned by faithful service at the end of the three j^ears. 64, 220, March ^ 1894. 1429. Under the provisions of sec. 2 of the act of June 16, 1890, granting- a three months' furlough to soldiers after three years of "■faithful" service, held that it would not be expedient to adopt an inflexible rule that a soldier who at an}- prior period of his enlistment had been convicted of a military ofl'ence should be deemed ineligil^le to such f urloug-h. As regards ofl'ences other than desertion, each case should properly be left to be decided upon its own merits at the dis- cretion of the Secretarj^ of War. 48, 20, June, 1891. G. GAMBLING. 1430. Gambling, ^j)er se, does not constitute a military offence. If indulged in, however, to such an extent or in such a manner 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 '"con- duct unbecoming an officer and a gentleman," it maj' of course be taken cognizance of by a court martial. The Army Regulations recog- nize it as peculiarly objectionable when practised by a disbursing officer.' XVI, 381,'-/?//y, I860; XL, 32, October, 1877. GARNISHMENT. 1431. It is well settled, upon considerations of public policy, that funds in the possession of a paymaster of the army or other dislnirsing agent of the United States, due as pa}', salary, or wages, to an officer or soldier of the army, or other government employee, cannot be attached in a suit instituted against such officer, &c., by a private creditor.- VIII, -198, 2lay, 1861^; XX, -113, FeJrniary, 1866; XXVI, ' See, in G. C. M. O. 18, War Dept., 1871, a case of a disbursing officer convicted of gambling, as an offence under Art. 62; and note the remarks of the reviewing author- ity upon an instance of this class in G. O. 2, Dept. of Arizona, 1878. In an early case — in G. O. 104, Hd(]rs. 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. See ])ar. 590, A. K. of 1895 (672 of 1901) . ^Buchanan r. Alexander, 4 Howard, 20; Averill r. Tucker, 2 Cranch, C. C. 544; Derr /■. Lubey, 1 IVIcArthur, 187; 13 Ojiiiis. At. Gen. 566. And the same principle is applied to monevs due from munici])al corporations. Hawthorn r. St. Louis, 11 Mo. 59; Burnham'r. Fond du Lac, 15 Wise. 211; Wilson v. Bk. of La. 55 Ga. 98; Pruitt r. Armstrong, 56 Ala. 306; Boone Co. v. Keck, 31 Ark. 387. 390 GENERAL STAFF. 4:66, Fehrtiary, 1S6S; XXVIII, 47, August, 1S68; XXXIII, 8, 2£arch, 1872; XXXIV, 26, Mvemher, 1872; Cards 1901, Decemher, 1895; 2Y67, Beceuiber, 1896; 4887, Septemler. 1898; 6103, March, 1899. Where indeed the paj^ due has been paid over to a tliird person as the authorized agent or attorney of the party entitled to receive it, it may be attached by the garnishee process in the liands of such person. Card 4887, mqnri. 1432. The principle is well established that money in the hands of a disbursing agent of the United States is not subject to attachment in a suit by a creditor of a party to whom such money is due and payaljle. A military disbursing officer is therefore not empowered to pay mon- ejs in his hands, due a government contractor, to any creditor of such contractor, or to any person other than the contractor himself, or his agent or attorney or personal representative; nor can he be made liable to pay over anj" part of such moneys as garnishee in a suit brought against such contractor. LIV, 514, January, 1888. 1433. A general service clerk received from a paymaster of the armj^ in payment of his monthly pay, a check upon a national bank, which was a U. S. depositar}^ On presentation the bank retained the check and refused payment on the ground that the county sheriff had levied an attachment on all the property of the payee in the bank. Ildd that such refusal was legally unauthorized. The pa}' due was public mone}^ in the hands of the depositary, and could be paid only to the payee of the check or his order. 54, 361, July, 1892. 1434. A creditor of a government contractor, to whom the (xovern- ment owes a balance, cannot attain the object of a foreign attachment by bringing suit against the contractor, and joining with him, as defendants, the United States, as also the oificer of the army who exe- cuted the contract, and praying judgment against the United States, or for an order of court upon the officer to pa}' over the amount claimed. An individual cannot be allowed so to control the operations of the Government.^ 40, 251. April, 1890. GENERAL STAFF. 1435. The General Staff of the army, consisting of the chiefs of the staff corps and inferior officers of the same, constitute the Staff of ^Moreover, when suit is initiated against the United States, the plaintiff is required to proceed according to tlie provisions of sees. 4, 5 and 6 of the act of March 3, 1887, c. 3.59, and miint duly serve a copy of the petition upon the projier U. S. district attorney, as notice to appear and defend the interests of the United States, and mail a copy to the Attorney General, &c. — a i)rocedure which had nut been followed in this case. HABEAS CORPUS. 391 the Coniinunder-in-ohief of the Army — the President/ As .such, these officers are properly under the innnediate direction of the Secretar}' of War, who acts for the President in the administration of the military department. XXXVIII, 253, August, 1876; XL, 17, April, 1877. H. HABEAS CORPUS. 1436. In a proclamation of May 10, 1861, the President authorized 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 privilege of the writ of luibeas corpus in cases of persons liable to draft who should attempt to depart 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 proclamation of Sep- tember 24, 1862, the President declared the privilege of the writ sus- pended in respect to all persons arrested or imprisoned "during the rebellion by an}^ military authorit3%'" or under "sentence of an}- court martial or military commission." These proclamations and orders were all based upon the theory that under Art. I, Sec. 9, par. 2, of the Constitution, or otherwise, the President alone, in the absence of any authority from Congress, was empowered to suspend the privilege of the writ.' See I, 345, 8epteiiibei\ 1862. But in the following year, by the act of Congress of March 3, 1863, c. 81, s. 1. it was provided: "That during the present rebellion the President of the United States, whenever in his judgment the public safety may require it, is authorized to suspend the privilege of the writ of habeas corpus in any case throughout the United States or any 'Stooqueler. Military Diftionary, title "General Staff,'' defines this term: — "The body of officers entrusted with the general duties of the army in aid of a commander- in-chief." See G. 0. 11 and 28, A. G. O., 1869; also two letters of Secretary of War to Lieutenant Cieneral Sheridan (5603, A. G. 0. 1885) dated, respectively, Dec. 9, 1884, and Jan. 17, 1885. -The (juestion whether the President was authorized, in his own discretion and independently of the sanction of Congress, to exercise this power, was much dis- cusse' of War, of persons detected in holding- correspond- ence with, or giving intelligence or otherwise lending aid to, the enenw, as also in obstructing enlistments in the arm}^ &c., the opinion was expressed that the suspension of the writ by the President would be legally justitied under this act. II, 17-i, 456, April and May^ 186S; III, 72, June^ 1863. The instances, however, of suspension in indi- vidual cases were not numerous; for, presently, viz., on Sept. 15, 1863, and pursuant to the act of March 1863 above cited, the President issued a proclamation suspending the privilege of the writ generally, and "'throughout the United States" in all cases '■"where, by the authorit}^ 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 abettors 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 therefrom, or otherwise amenable to militar}^ law, or the I'ules and articles of war, or the rules or regulations prescribed for the military or naval serv- ices l)y authority of the President of the United States, or for resisting a draft, or for any other oft'ence against the military or naval service." In a case in which, by the operation of this last proclamation, the writ was suspended, //.■ /c7 that an}- 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 prisoner under the authority of the President." XV, 157, Jfi(i/,1S6'5. 1437. By a proclamation of Dec. 1, 1865, the President ""revoked and annulled'' the suspension (b}^ proclamation of Sept. 15, 1863) of the privilege of the writ in certain States, including New York. Held that such revocation did not operate to authorize the discharge, by a court of that State, of a prisoner detained in military custod}' under color of the authority of the United States. XXI. !»2, Decemher, 1865. 1438. But, independently, on the one hand, of any proclamation or act of the President suspending the privilege of the writ, or, on the other hand, of any proclamation 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 haheas corpm., ^ See //( re Murphy, Woolworth, 141. HABEAS CORPUS. 393 a person, military or ,-ivil. held in military custoch' l^v the authority of the United States. XIX, 92, Deceinher, 1865; XXI, 92, 133, Dece}iiher, 1865. And held, particularly, in regard to soldiers arrested or confined by the militar}' authorities under a charge of or sentence for desertion, — that their discharge, upon any groimd, by writ of Jiabeas corpua was whoU}' beyond the jurisdiction of an}- State tri- Inuial. II, 34, 190, 484, Fehruary to Jmie, 1863; III, 104, June, 1863; V, 398, Decemhe7\ 1863. So held., in regard to persons arrested by a provost marshal as deserters for not responding to a draft in time of war. Ill, 457, 578, August and Septemhet^^ 1863. And further, Jield that no State court could have jurisdiction, on a proceeding for the discharge Ijy writ of Judjeas corpus of an enlisted soldier, to pass upon the question of the legality of the soldier's enlistment, or to discharge him from his contract of enlistment, on the ground of its invalidity by reason of minority, non-consent of parent, or other cause; the authority to discharge from the restraint and oljli- gation of the ordinary military status being considered to be governed \)\ the same principle as that to discharge from an arrest or contine- ment under a military charge or sentence, or from the custody of a U. S. marshal under civil process of the United States.^ XXI, 157, January, 1866; XXIX, 140, July, 1869; XXXIII, 271, August, 1872; 32, 313, 21ay, 1889; Card 394, Septemler, 189^. 1439. And held that a State court was not authorized to discharge on JuiJjtas corpus a civilian held l)y the authority of the United States as a convict under sentence of a militaiy commission. XXVIII. 50, August. 1868. ^Opposed to this view was the opinion of Attv. Gen. Stanberv in Gorniley's case (October, 1867), 12 Opins. At. Gen. 258. But iii December, 1871, the ruling of the Judge- Advocate General in this class of cases was sustained by the United States Sujirenie Gourt in Tarble's Case, 13 Wallace, 397, in which the judgment of a State court, Avhich had ordered the discharge, on habeas corpKS, of an enlisted soldier from "the custody of a recruiting officer," /. e. from the obligation of his contract of enlist- ment, on the ground that he had enlisted wdien under eighteen years of age and without his father's consent, was reversed as an unconstitutional assumption of authority. In applying to the case the principle laid down in Ableman r. Booth, 21 Howard, fiOH, the Court, ])y Field, J., observes: "State judges and State courts, authorized ])y laws of their States to issue writs of habeas eaqnis, have undoubtedly a riglit to issue the writ in any case where a party is alleged to be illegally confinecl within their limits, unless it appears upon his application that he is confined under the authority, or claim and color of the authority, of the United States, by an ofiicer of that government. If such fact appear upon the ai)plication the writ should l>e refused. If it do not appear the judge or court issuing the writ has a right to inquire into the cause of imprisonment, and ascertain by what authority the person is held within tlie limits of the State; and it is the duty of the marshal, or other officer having custody of the })risoner, to give, by a proper return, information in this respect. His return should l)e sutficient, in its detail of facts, to show distinctly that the imprisonment is under tlie authority, or claim and color of the authority, of the Ignited States, and to exclude the suspicion of imposition or oppression on "his part. And the process or orders under which the ])risoner is held, should be proiiuced with the return and submitted to inspection, in order that the court or judge issuing the 394 HABEAS C<1RPUS. 1440. Where a writ of lixiheaa cor2>nx^ i.ssued ))v a State court or judge for the relief of a per.son held in arrest, confinement, or under enlist- ment, b}^ the military authorities, is served upon a military officer, he is not required to comply with the direction of the writ to produce before the court the hxhj of the person so held. It is sufficient for him merely to make return showing- clearly that such person is held by the authority 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 properly dismiss the writ. Ill, 104, Jn)it\ 1863; XXI, 157, Jannanj, 1866. 1441. Where, prior to the decision of the U. 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 con- tempt against the officer in charge, who, though duly making a return showing that the party was detained by the authorit}" of the United States, refused to produce his body in court,^ — held that such attempt should be resisted by the officer, who should be supported in his resist- ance by such military force as might be necessary. Ill, 502, August.^ 1863; XIX, 305, Deceinlyer, 1865; XXI, 92, December^ 1865. So, where 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,^ — field that the execution of such order should be resisted and prevented by military force. Ill, 104, June., 1863; XXI, 157, Janu- ary^ 1866. 1442. Where, prior to the decision in Tarble's Case, an officer undergoing, in a State penitentiary, a sentence duly imposed by a court-martial, w^as discharged from his imprisonment by a State court and was at large, advised that he be forthwith rearrested and re-con- fined. XXX, 56, Decernher, 1869. So, in a case of a soldier discharged from his enlistment, on the ground of minority, l)y a State court, advised that he be arrested b}^ the military authorities and held to serv- ice. XXX, 190, Mtrch, 1870. 1443. But in a case of a soldier or other person held in military cus- ' 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 Avhcn it appears, from the application of the party, or the return made, that the i>risoner is held l)y an officer of the United States under what, in truth, purports to be the authority of the United States; that is, an authority, the validity of which is to be determined 1)y the Uonstitution 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 ridings by the State courts, the ujajority of which had sustained the authority of the State judiciary in such cases. ^ See citation from Tarhle's Case in last note. HOSPITAL CORPS. 395 tody, in which a writ of habeas corjjus is issued by the United States judiciary — a co-ordinate branch of the same sovei'eignty 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 brint>' into court the l)ody of such party, submitting- to the court the whole question of authority and discharge, and abiding by its decision and order in the case/ XIX, 377, and XXI, 157, January, 1866. HOLIDAY— PAY FOR. 1444. By the joint resolution of Congress, of January 6, 1885, it was provided that the "per diem emplo^^ees" of the United States should be allowed certain days as holidays, naming January 1st, Feb- ruary 22d, July ttth and December 25th, together with ''such days as may be designated by the President as days for national thanksgiving," and should receive the same pay for those days as for other days. Held that while such emploj^ees might be allowed by the Secretarj^ of War to enjoy the Saturday half holida}" established at New Orleans by a statute of Louisiana, they could not, if taking the holiday, legally be paid for such time. 62, 31, Octohe7\ 1893. Where such employees have been present for duty either before or after a holiday, but not present both before and after, being absent a day oi' more either prior or subsequent thereto, they are entitled to be paid for such holiday, unless their employment was terminated the dav before or began the da}" following it; in Avhich cases they would not be employees of the I'nited States at the time of the holiday. Card 5879, FehTuary, 1809. 1445. Per diem emplo3^ees suspended and not at work during a period which includes a holiday are not entitled to pay for the holiday. Card 1068, Amjitst., 1895. Nor can employees who work on a holiday be given double pay for such service in the absence of a statute expressly authorizing the same. Card 1:335, June, 1898. 1446. On January 19, 1893, the President proclaimed that on the day (January 20th) of the funeral of ex-President Hayes, all public l»usi- ness in the departments should be suspended. This not being one of the days included as public holidays by the joint resolution of Janu- aiy 6, 1885, Juld that the^>rr dleai employees at the Watervliet Arsenal were not entitled to be paid for that day. 57, 121, February, 1893. HOSPITAL CORPS. 1447. The act of March 1, 1887, c. 311, "to organize the hospital corps of the army,"' &c., provides for "acting hospital stewards,"" as a ^See paragraphs 140, 969, 970, 971, Army Regulations of 1895, the last two para- graphs as amended by G. O. 127, A. G .0., 1900 (pars. 151, 1078-1075 (>!' 1901 \ 3V)6 , HOSPITAL CORPS. separate grade in the corp.s, but does not prescribe any mode of filling that grade other than by declaring that "priyates" of the corps may be detailed as such '"acting'' stewards. TLbh therefore, that av hen such a priyate was so detailed, he ceased to be a priyate of the corps and became at once the acting hospital steward constituted by the ^ct; and, if discharged while so detailed, should be discharged as an ''act- ing hospital steward," receiying trayel pay as such. 60, 157, Jnne^ 1893. 1448. Held that the proyision of the Army Appropriation Act of Feb. 27, 1898, prohibiting the re-enlistment of certain "priyates," applied to the "" priyates " of the hospital corps but did not apply to the "acting hospital stewards," who, under the act organizing this corps, of March 1, 1887, c. 311, constituted a distinct class and grade from the "priyates." ' 58, 222, Ifarch, 1893. 1449. irelcl that a person enlisted in the hospital corps, or trans- ferred to it from another part of the army luider the authority of the act of March 1, 1887, c. 311, sec. 5, could not be transferred out of it or back again to the organization from which he was transferred orig- inally, without a breach of contract. The authorit}^ to transfer to this corps is expressly granted by the statute, but there is no statutory authority for depriying transferred meml)ers, b}^ undoing their trans- fers, of the positions giyen them according to the express law. 55, 96, Aug ad, 1892. 1450. Held that an enlisted man of the yolunteer branch of the army may, under the act of March 1, 1887, creating the hospital corps, be transferred thereto as a priyate; and that the authority to make such transfers could legall}^ be giyen to corps commanders.^ Card 1:122, 2Iaij, 1898. 1451. General Orders 58, Adjutant General's Office, 1898, authorizes corps commanders to transfer enlisted men of the yolunteer branch of the army to the hospital corps, but does not authorize such com- manders to retransfer them to the yolunteer organizations.^ Card 6714, Jaly, 1899. 1452. Held that neither the act organizing the hospital corps of March 1, 1887, nor par. 1578 A. R. (1889), relating to the assignment of priyates of the corps as nurses, &c., was to be construed as restricting the use of nurses to attendance upon patients within the hospital, but that nurses might legally be furnished from such priyates to attend officers at their quarters. 43, 115, Septemher, 1890. ^Thii^ and precedinjj pai'atrra])!! are quoted and concurred in by the Comptroller of the Treassurv in an opinion dated April Iti, UIOO, wherein he decided that acting hoHpital stevv-ards are entitled to travel i)ay and extra pay (act of March 3, 1899) as such and not as i)rivateH, and if retired asacting ho«j)ital wtewards are entitled to 75 per cent of the pay and allowances of that grade. 6 Comp. Dec, 807. ^See G. O. 58 and 82, A. G. ()., ]898. 3 See Circulars 45 and 50, A. G. O., 1898. HOT SPRINGS HOSPITAL. 397 1453. Where a hospital is not supplied with enough privates of the hospital corps to do the necessary police duty, which, under sec. 5 of the act organizing the corps of March 1, 1887, they may properly be required to perform, held that eonvalesce7its at the hospital may, i;i the discretion of the surgeon in charge, and by his prescription and direc- tion, be employed to assist in such duty. 44, 125, Decembe7\ 1890. HOT SPRINGS HOSPITAL. 1454. Under the present regidations for the goyernment of the Army and Nayy General Hospital at Hot Springs, Arkansas, ciyil emplo} ees of the Goyernment are not eligible to admission. 58, 152, March., 1893. 1455. Under the regulations for the goyernment of the General Hos- pital at Hot Springs, published in G. O. 60 of 1892, "officers of the reyenue marine '' are made eligible to admission. IleJd that this descrip- tion did not include medical officers of the "Marino Hospital Service," who are not officers of the "Revenue Marine " but belong to a distinct establishment. The former are appointed under the provisions of Title LIX, ch. 1, Rev. Sts., and of the act of January 1, 1889, c. 19, while the Revenue Marine is constituted under Title XXXIV, ch. 3, Rev. Sts. Both classes are under the direction of the Secretar}' of the Treasury, but their duties and functions are entirel}' different, and there is no ground for regarding the former as included in or attached to the latter.' 59, 162, ^7>/v7, 1893. 1456. The United States not being vested, by reservation or cession, with exclusive jurisdiction over the site of the General Hospital at Hot Springs, though owning the land, Jield that the courts and judicial officers of Arkansas had substantially the same jurisdiction and authority to issue and execute process to and upon the military and naval persons stationed or commorant at the hospital, as in cases of civilians there resident or commorant. 56, "I'S-^., N'ovemher, 1892. 1457. Held that under the regulations for the government of the General Hospital at Hot Springs, Arkansas (G. O. 60, A. G. O., 1892, as amended by G. 0. 10, A. G. O. , 1893), discharged enlisted men of the Navy are not entitled during the three months within which they ma}- reenlist under the act of Februarj^ 8, 1889, to admission to the hos- pital. Card 2069, Fthruary, 1896. ^ By an amendment of the Regulations of the Hospital, promulgated (since the above ojiinion) in G. O. 40 of 1893, officers of the Marine Hos-pital Service are now made eligible to admission. 398 IMPRISONMENT OR CONFINEMENT. I. IMPRISONMENT OR CONFINEMENT. 1458. A senteuce, which, in imposing confinement (or imprison- ment — the two terms being practically synonymous in sentences of courts martial), fails clearly to indicate how long the same is to con- tinue, is irregular and inoperative. Such a sentence should be disap- proved by the reviewing authority unless it can be procured to be corrected by a reassembling of the court for the purpose. XVI, 283, Jiine^ ISGo. 1459. In imposing a sentence of confinement at a military prison, the court should properly add ''at such place as the proper authoritj^ may designate," or words to that eliect.^ To direct that the place of confinement be designated by an officer inferior to the convening authority is irregular and improper. IV, 356, and V, 309, Woveiiiber^ 1863; IX, 600, SejJtemher, ISGI^. 1460. It is now established by a long series of precedents that a gen- eral court martial is authorized to adjudge, by sentence, a term of imprisonment to extend l)eyond the end of the pending term of enlist- ment of the soldier, or be^^ond his legal period of service. Thus, for example, where the term of the enlistment of the accused has still a year to run, the court — the gravity of the ofl'ence justifying it — ma}' sentence him to an imprisonment 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 an}- other sen- tence 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, upon the execution of the discharge, become so entitled. In each case, upon the determination of the enlistment or service, the party continues to be held under his sentence not as a soldier but as a civilian U. S. convict.' XXXI, 89, Decemher, 1870; 353, May, 1871; XXXVIII, 513, March, 1877; XXXIX, 509, ^i?7'^7, 1878. 1 A sentence of confinement is executed l^y sending the party under a proper guard to the place of confinement (hily designated, and at the same time transmitting to tlie officer there in command a c<')py of the order api)roving the sentence and order- ing the execution, together witli other proper papers required to exhibit the status of the soldier. 8ee paragraph t»ll, Army Kesrulations (1895), as amended l)y G.O. 112, A. G. O., 1899 (1012 of 1901 ). ' " '■'As to the order of the execution of the ])uuishments, when dishonorable discharge andaterm of imprisonment are imjjosed 1)V the same senteuce, — see § 1146, ante. ^See par. 152a, A. R. (169 of 1901). IMPRISONMENT OR CONFINEMENT. 399 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 soldier before pro- mulgation, }iAmt (see Sentence and Punishment), and therefore unauthorized. XXXVII, 640, June, 1876; XXXIX, 500, March, 1878; XLI, 123, Fehruary, 1878. 1465. To a proper execution of a sentence of confinement, a secure keeping of the person is of course essential. Where, therefore, it is not possible otherwise to prevent a prisoner's escape or to prevent violence on his part, he may be put in irons without adding to the pun- ishment. But such exceptional restraint cannot legally be imposed except where thus necessary. XXXIV, 375, Jdy, 187S. 1466. A prisoner not expressly required b}- his sentence to be con- fined in irons cannot legally be subjected to such form of confinement except where there is sufiicient ground to apprehend serious violence on his part or an attempt to escape. A mere threat of violence would not ordinarily justify the use of shackles or fetters. 32, 35, April, 1889. 1467. It is not adding to the punishment in executing a sentence of confinement to require the prisoner to perform Avork prescribed for prisoners of his class by the statute law. Thus persons sentenced to imprisonment at the Military Prison at Leavenworth, though ''hard la])or"' be not in terms added to the sentence, may legally be employed in the labor or at the trades indicated by Sec. 1351, Rev. Sts. XXXVII, 640, June, 1876; LI, 601, March, 1877; 42, 101, July, 1890. 1468. It is not adding to the punishment, and is authorized at mili- tary law, for the commander w^ho ordered the original commitment, or his proper superior, to change the place of confinement of a prisoner, if such a change is required ])y 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, Noveinhcr. 1865; XXXIX, 659, Septendjer, 1878; XLI, 123, February, 1878. 1469. Where the sentence directs confinement at hard laljor " in sucli place as the reviewing authority may direct,"' or words to that efiect. IMPRISONMENT OR CONFINEMENT. 401 the reviewing" authority may, the offence warranting it, designate a penitentiary'; but if in such a case he designates a military post as the place of confinement, the place of confinement cannot, pending' its execution at the post, legally be changed to a penitentiary. Card 1875. Nove))ihet\ 1895. 1470. The Sundry Civil Act of March 2, 1895, provided for the transfer of the Military Prison at Fort Leavenworth, Kansas, from the Department of War to the Department of Justice, the prison to be thereafter known as the United States Penitentiary and "to be used for the confinement of persons convicted in the United States Courts * * * or convicted by courts-martial of offences now pun- ishable by confinement in a penitentiary and sentenced to imprison- ment of more than one year." Where a soldier had been prior to this transfer dul}^ convicted by court martial and sentenced to dishonor- able discharge and penitentiary confinement, but the confinement was mitigated to imprisonment in the military prison at Fort Leavenworth (a well established form of mitigation in the military practice), — held that, after the transfer of the prison to the Department of Justice, to hold the prisoner therein would be in fact transferring him from a military prison to a penitentiary, thereby adding to his punishment without authority of law. Card 187, June, 1895. See Card 7450, December, 1899. 1471. Persons convicted by courts-martial and sent to the United States Penitentiary under the provisions of the Sundry Civil Act of March 2, 1895, cannot be turned over to a United States marshal for transportation to the penitentiary, but must be delivered there by the military authorities. Card 1201, July, 1895. 1472. Prison authorities have no right to open and inspect letters addressed to or sent by their prisoners without the consent of the latter. They can however retain such letters unopened which may come into their possession until such time as the parties may be tried or released, or the letters otherwise disposed of under judicial process.^ Card 2469, July, 1896. 1473. While the authority upon whom it devolves to execute a sen- tence 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, sen- tenced to terms of confinement on conviction of grave offences, were, while in ordinary good health, permitted to be emplo3'ed upon hon- orable duties as clerks, &c., in the offices attached to (and one of which was outside of) the prison, held that such employment was in deroga- ^See Circ. 8, A. G. O., 189(1; al.^o U. S. Postal Guide, May, 1896, p. 13. 10906—01 26 402 IMPRISONMENT OR CONFINEMENT. tiou of the proper requirements of a .sentence of imprisonment and should be ordered to be discontinued. XI, 54-i, March., 1865. 1474. Where a soldier, while undergoing a sentence of confinement, was, by mistake, released by the post commander before the expira- tion of his legal term, held that the department commander b}' whom the sentence had been approved was legall}^ authorized to order the soldier to be re-committed for the purpose of completing his punish- ment. XXVII, 429, Deceniher, 1868. 1475. 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 authorit}^, escaped from custodj", and, after the sentence had been duly approved and promulgated, was arrested, Juld that he would legally and properly be committed to the confine- ment adjudged. XXIX, 7, June., 1869. So a soldier who escapes from custod}^ pending the execution of a sentence of confinement, and subsequentl}' is arrested or surrenders himself, may legall}^ be remanded to serve out his term as in a case of a civil prisoner. XXXVIII, 119, July, 1876. 1476. Where a soldier, pending the execution of a sentence of con- finement (at a militar}" prison or in the guard house of a post), becomes ill and is removed to the hospital for treatment, held that the time spent in hospital is not to be required to be made good by additional confinement at the end of the term of confinement imposed by the sentence. A term of confinement is continuous except when inter- rupted b}' escape. In a case of escape, the prisoner will, upon recap- ture, properly be held to serve out the unexpired part of the sentence; but to require that, a prisoner should make good time spent in hospital would be in fact adding to the punishment and illegal. No "asage" can justify such action. 46, 170, March., 1891; 61, 146, Deceniber, 1891; 59, 173, April, 1893. 1477. The discharge, by executive authority under the 4th Article of War, of a soldier Avhose 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 penalty of dishonor- able discharge, or imposed it to take eifect at the end of the imprison- ment), held to operate not merely as a discharge of the soldier from his enlistment but as a remission of the unexecuted term of his con- finement and to entitle him to be set at liberty.^ XXXI, 556, August, 1871; XLI, 350, July, 1878. ^This opinion was adopted and published in Circular letter from the War Depart- ment to department commanders, Aug. 12, 1871. And note an instance of its application — to the cases of twenty three prisoners — in G. C. M. O. 118, Dei)t. of the Missouri, 1871. IMPRISONMENT OR CONFINEMENT. 403 1478. So where a soldier, while under a sentence of confinement for a term less than the remaining- term of his enlistment (imposed with- out dishonorable discharge), was for a further offence tried, con- victed, and sentenced to dishonorable discharge and imprisonment, and was thereupon duly discharged accordingly, luM that the period of the pending- confinement under the first sentence was thereupon terminated, leaving to be executed, after the discharge, only the con- finement adjudged by the second sentence.^ XLI, 576, June^ 1879; 61, 424, September, 1893; Cards 2376, 2762, Octoher and Mvember, 1896. 1479. Where a soldier while undergoing a sentence of confinement is brought to trial for a further offence, and, on conviction, is sen- tenced to a further term of imprisonment, the punishment thus adjudged is cumulative upon that pending, and its execution will properh' commence at the date when the pending confinement ter- minates, whether by expiration of time or by remission. To render a punishment thus cumulative, it is not required that it should be designated as such by the court in the sentence. XXXI, 315, April, 1871; XXXII. 670,"^ June, 1872; XXXIV, 479, Septemler, 1873; XXXY. 433, Jun<^, 187 If,; XXXVIII, 43, Ajyril, 1876; 556, Ajrril, 1877; XLIII, 102, Decemher, 1879. 1480. Where a deserter under sentence of dishonorable discharge and confinement escaped, pending the confinement again enlisted, deserted from his second enlistment, and, upon arrest, was again sen- tenced to dishonorable discharge and confinement, held that he was legally liable to be subjected to both terms of confinement, the second as a cumulative punishment upon the first. 38, 124, January, 1890. 1481. Where a soldier at two successive trials for separate offences was sentenced, upon the first trial to dishonorable discharge and imprisomjient, and upon the second 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 operation at the same moment and taken effect as one sentence, so that the execution of the dishonorable discharge imposed by the former sen- tence did not affect the enforcement of the punishment of confine- ment imposed by the latter sentence, but that the same was legally enforceable as cumulative or rather continuing upon the term of con- finement imposed by the former sentence. XXXIV, 479, Septejnher, 1873. 1482. Held that the act of June 14, 1870 (16 Stats., 128), provid- ing for a deduction on account of good conduct, to be allowed at ^See paragraph 2, Circular 10, A. G. 0., 1896. 404 IMPRISONMENT OR CONFINEMENT. the end of the confinement, as a deduction from and abridgement of the term of sentence of prisoners convicted of oifences ''against the laws of the United States," and confined under sentence in any State jail or penitentiary, applied to prisoners confined in such prison under sentence of courts martial. ^ XXXIV, 22, Octoher, 1872. 1483. Where, pending the confinement, under sentence of a soldier in a military prison, a portion of his term of confinement was by com- petent authority remitted, held that he remained entitled, upon good conduct, to the abatement provided in general terms by G. O. 64 of 1875; the fact of the remission not affecting his right to the abatement during the continuance of his term as reduced b}^ the remission. XXXVII, 490, Ajwil, 1876. 1484. A remission of part of a sentence of confinement has the effect of leaving the reduced sentence as though it were the original; and the prisoner will be entitled to the time allowance for good conduct precisely as if the original term had not been reduced. 44, '6'd, Novem- hei\ 1890. 1485. The duty of a post commander with regard to the holding and restraint of a prisoner sentenced to be confined at the post is not affected by the fact that the prisoner was adjudged by the same sen- tence to be dishonorably discharged and has been discharged accord- ingl}^ The amenability to prison discipline continues during the term of the confinement; although, except at the Leavenworth Military Prison (see Sec. 1361, Rev. Sts.), the prisoner cannot legally be brought "^ to trial by court martial for misconduct during such term. LVI, 351, July, 1888. 1486. The object of sec. 5 of the Summary Court Act of June 18, 1898, was to make dishonorabl}^ discharged militar}^ prisoners triable by court martial for offences committed during their confinement. It was not intended to make any other change in the law, and should not be so construed. Card 5589, December, 1898. It does not confer upon courts martial jurisdiction as to offences committed prior to the dis- honorable discharge. Cards 7762, 8051, March and Aj)ril, 1900; 9406, Decemher, 1900. ' See the subsequent act of March 3, 1875 (1 Sup. Rev. Sts., 89), and G. O. 64, War Department, 1875, referring to this statute (in connection with Sec. 1352, Key. Sts., providing for the partial remission for good conduct of the sentences of prisoners confined in the Leavenworth Mihtary Prison) and applying to cases of prisoners in iiiilitm-)! prisons a rule similar to that established l)y such statute, as follows: — "To e(|aalize the practice in regard to punishment of military jirisoners so far as practica- l)le, an ahatement of five days for each month of consecutive good <'onduct may be allowed upon each sentence to confinement for over six months." But .«ee par. 915, Army Regulations of 1895 (lOlG of 1901), as to abatement now authorized. -But see now sec. 5, of the act establishing the summary court, a])i)roved June 18, 1898. (Court-Martial Manual (1901), p. 120.) IMPROVEMENT OF RIVERS AND HARBORS. 405 IMPROVEMENT OF RIVERS AND HARBORS. 1487. When Congre.s.s, in the exercise of its exclusive power to direct how the public money shall be employed, has appropriated a certain sum, to be devoted, without exceptions or provisos, to a certain speciiic internal improvement, it devolves upon the Executive Depart- ment of the Government, charged as it is with the execution of the laws enacted by the Legislative, 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 oflicer charged with the improvement simpl}^. to do the work, without delaj^ing to raise or consider questions or claims of title to the land, &c., to be affected b}" the improvement; such matters being quite ])eyond the province of an executive official under the circumstances. XLIIl, 101, Novei)ibei\ 1879. 1488. Where derelict articles — wrecks for example — are encountered b}' oflicers 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, July, 1875. 1489. 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 f ulh^ abandoned (and directed by act of Congress to be caused to be removed by the Secretary of War), and it was proposed bv the engineer officer in charge to stipulate in the contract that the wrecks when removed should belong to the contractor, held that this could not prop- erlj' 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. XLIII, 281, April, 1880. ^See see. 4 of act of June 14, 1880 (1 Sup. K. S., 296), which jjrovides for the removal of sunken wrecks and prescribes the giving of such notice. Also, later acts of Aug. 2, 1882 [id. 369); Sept. 19, 1890 {id. 802); and sec. 15 of act of March 3, 1899 (30 Stats., 1152). In an opinion of the Attorney General of May 24, 1877 (15 Opins. 284), it is held that the Secretary of War, where authorized by an apj^ropriation act to improve the navigation of a navigable stream, may cause to be removed wrecks, not yet abandoned l)ut .still i)rivate i)roperty, if he considers them obstruction.s to navigation. And see his later opinion of April 27, 1880 (16 Opins. 479), as to the authority of the United States to improve navigal>le i-ivers to the disregard of individual rights of property in the soil of the 1)ed. 406 IMPROVEMENT OF RIVERS AND HARBORS. 1490. All islands in the Missouri river and in the State of Missouri, which were formed and in existence prior to the admission of the State into the Union, belonged either to the United States or to the parties to whom the United States or Spain had granted them. Upon the admission of the State into the Union the National Government relin- quished to the State ownership of the bed of the river ^ therein, and since admission of the State islands formed on the bed have belonged to the State," or may belong for school purposes to the counties in which they are situated under an act of the Missouri legislature approved April 8, 1895. The matter of purchasing for river improve- ment purposes for the United States willow brush and other material, products of these islands, would thus depend upon the question of title to the islands and control thereof at the time the purchases are made. Card 3186, May, 1897. 1491. Section 3736, Rev. Sts., provides that ''no land shall be pur- chased on account of the United States, except under a law authoriz- ing such purchase." By the act of April 24, 1888 (25 Sts. 1»4), the 'Secretary of War was authorized to "cause proceedings to be insti- tuted, in the name of the United States, in any court having jurisdiction of such proceedings for the acquirement by condemnation of any land, right of way, or material needed to enable him to maintain, operate or prosecute works for the improvement of rivers and harbors for which provision has been made by law." Further provision as to the method of condemning lands for public use was made by the act of August 1, 1888 (25 Stats. 357). The act of April 24, 1888, si(j)ra, provided "that when the owner of such land, right of way, or material shall hx a price for the same, which in the opinion of the Secretary oi War shall be reasonal)le, he ma}' purchase the same at such price without further delay; and provided further that the Secretary of War is hereby authorized to accept donations of lands or materials required for the maintenance or prosecution of such works." The authority to condemn, purchase, or "accept donations" applies onlj^ to works "for which provision has been made b}^ law." IMd, there- fore, that in the absence of an appropriation for the works or express authority' from Congress, the Secretary of War is precluded by Sec. 3736, Rev. Sts., from acquiring lands for river and harbor improve- ments; the word "purchase" in this statute having been construed in its legal sense as including every mode of acquiring land other than by descent. ■' Card 3896, February, 1898. ^See Pollard v. Hagan, .3 Howard 212; Goodtitle r. Kil)be, !» hJ. 471; Doe r. Beebe, 13 id. 25; Withers v. Buckley, 20 id. 84. 2 Cooly V. Golden, 2.3 S. W'. Reporter, 100. 'See 7 Opin. At. Gen., 114, 121; Ex parte Hebard, 4 Dillon, .384. A conveyance of lands to the United States is, under this statute, void and inoperative unless the jiurt'hase is authorized bv Congress. N. S. v. Tichenor, 12 Fed. Rep. 41.5; Comp. Dec. 791. IMPKOVEMENT OF RIVERS AND HARBORS. 407 1492. The owner of lands flooded by dams constructed in improving navigation is entitled to compensation for damages sustained by such flooding/ Held^ that the Secretary of War has authority under the act of April 24, 1888 (1 Sup. Rev. Sts., 2d edition p. 58-1:), to pur- chase lands flooded by dams constructed in river and harbor improve- ments, or the right to flood the same, and where springs are located on such lands, this fact ma}- properly be considered in determining the amount to be paid. Card lOY-i:, March., 1895. 1493. The River and Harbor Act of Aug. 17, 1894, sec. 4, makes it the duty of the Secretary of War to prescribe rules and regulations for the use and navigation of all "canals and similar works of naviga- tion," owned, operated or maintained by the United States, etc., and also makes the violation of any of these regulations a misdemeanor punishable in the proper United States court. Held, that this section does not apply in general to natural waterways, though their naviga- bility has been improved and is being maintained by the Government. Cards 424, Octoltv, 1891^; 1047, 2f<(rch, 1895; 2919, Fehruary, 1897; 3449, August, 1897. 1494. Sect. 13 of the River and Harbor Act of Aug. 17, 1894, pro- vides '"that after the regular or formal report on any examination, survey, project, or work under way or proposed is submitted, no sup- plemental or additional report or estimate for the same fiscal j^ear shall be made unless ordered l)y a resolution of Congress." To con- strue this language strictly would lead to two conclusions which it is improbable Congress intended, to wit: 1. Additional estimates for work which has become necessary in order to preserve that already done or being done during the fiscal year, cannot be made. 2. The Senate and House of Representatives, acting separately, cannot call for information on this subject. Held, therefore, that the section should be liberally construed as follows: That it prohibits additional estimates (unless ordered by resolution of Congress), extending the work already estimated for; and that the "resolution of Congress" referred to includes separate resolutions of either house. Card 2148, March, 1896. 1495. Work done by the United States upon rivers and harbors is civil work. The fact that military officers are assigned to duty on it does not make it a branch of the military service. The work itself does not relate to military matters or in any way affect the military establishment of the Government. It is paid for, not out of any appro- priation for the military establishment but out of a separate civil appropriation for the improvement of rivers and harbors. Held there- fore, that par. 808, Army Regulations of 1889, was not applicable to civilians employed in the improvements of rivers and harbors, said ^ Gould on Waters, 2d edition, § 243, and authorities cited; Hackstack r. Keshena Imp. Co., 66 Wis. 439; Am. & Eng. Enoy. of Law (1st edition), vol. 16, p. 265, note 1. 408 INDIAN COUNTRY. civilians not being " in the employ of an}- Ijranch of the military serv- ice." Card l-iT, August^ ISQJ/,. It was the intention however to have paragraph 569, A. R. of 1895 (see 648 of 1901), apply to river and harbor work; but whether it applies or not the Secretary of AVar has discretionary power to require with reference thereto the reports men- tioned in the regulations. Cg^rd 3418, August^ 1897. 1496. Section 1241, Revised Statutes, prescribes that the President may cause to be sold any militaiy stores which, upon proper inspection or survey, appear to be damaged or unsuitable for the public service. Held that the term "military stores " does not include pul^lic property purchased in carrying out the civil works of river and harbor improve- ments. The regulations, however, with reference to propert}^ accounta- bility, as contained in the Army Regulations of 1895, were intended to cover all public property under the control of the Secretary" of War, whether military stores or not. The regulations (and orders) relating to the inspection of unserviceable property with a view to its condem- nation apply, therefore, to public property used in river and harbor improvements. There is however, no existing law which would pre- vent such modification of these regulations as would authorize the proper engineer officer to drop property, other than militarj' stores, from his returns on his own certificate that its condition resulted from wear and tear in the .service, that it was worthless and had been destroyed in his presence. Card 3419, At/gi/.sf, 1897. 1497. A contractor engaged upon river and harbor work for the Government may obstruct navigation to the extent necessar}- to do his work, if such obstruction cannot reasonabl}' be avoided. He is how- ever liable both civilly and criminally for an unauthorized obstruction, and the Secretary of War is without authorit}^ to relieve him from such liability. Card 3839, Fehruari/. 1898. INDIAN COUNTRY. 1498. Held that the term ''Indian country," as employed in the statutes regulating trade and intercourse with the Indians (see, par- ticularly, Ch. IV, Title XXVIII, Rev. Sts.), might properly be defined in general as including the following territory, viz: Indian reserva- tions occupied bj- 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 statutes may be extended I)}' treaty or act of Congress.^ XXXIX, 214, Ocfoher, 1877. 'See this opinion as adopted and incorporated in G. O. 97, Hdqrs. of Anny, 1877; also, in the same connection, 14 Oi)ins. At. Gen., 290; Unitey implication to permits for its sale. Thus repeatedly held that per- mits to individuals to introduce into the Indian country any kind of intoxicating liquor, intended for sale either as a beyerage or for medicinal purposes, cannot legally be granted. Cards 2399, 2406, 2571, 2795, July to December, 1896; 314(:», 3404, 3716, A2.)r!l to Decem- ber, 1897; 4002, 4105, 3fay, 1898; 6857, 6900, August and Se2)temher, 1899; 4105, Jime, 1900. 1502. In yiew of the terms of the act of May 21, 1884, establishing a civil government for Alaska, held that the military authorities could no longer legally issue permits for the introduction of liquors into ^ See now this section as amended by act of January 30, 1897 (29 Stats., 506). 410 INDIAN COUNTKY. Alaska under G. O. 57 of 1874; sec. 14 of said act being deemed impliedly to repeal, as to Alaska, that portion of Sec. 2139, Rev. Sts., which empowered the Secretary of War to authorize such introduc- tion.^ L, 529, July, 1886. 1503. In view of the positive terms of Sec. 2140, Rev. 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 militar}^ as well as civil officials. IMd however that the authority given by the statute to destro}' liquor brought into an Indian reservation did not authorize the destruction by the military of a building, the private property of a citizen, in which the liquor was found stored. XXXV, 350, Ajyt'U, 187 Jf. 1504. In view of the dut}" devolved by Sec. 2140, Rev. Sts., upon "any person in the service of the United States," to take and destroy spirituous liquors in the Indian countr}', held that a post commander in such country who seized and destroyed a quantity of such liquors introduced into such country without the authority of the Secretary of War, but not found within the limits of his military command, had not exceeded his powers. XXXI, 205, February^ 1871. 1505. Under Sec. 2147, Rev. Sts., authorizing the use of the military in the removal from the Indian country of "persons found therein contrary to law," hdd that the President was authorized to direct that a compan}^ of U. S. troops be stationed in the Indian Territory near the Kansas line to act as a patrol, and to apprehend and return w^ithin that line any and all lawless persons, guilty of crimes committed in Kansas, who have escaped from justice into the Indian country. 59, 480, J/rty, 1893. 1506. Under Sec. 2150, Rev. Sts., a military commander may be au- thorized and directed by the President to arrest bv military 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 country of persons designing to introduce liquor therein contrary to law. Held that this authorit}^ to 2^^"^'vent was clearly an authority to arrest., where arrests were found necessary to restrain persons attempting to introduce liquor or other inhibited property. XLII, 192, March, 1879. 1507. ILId that, under Sec. 2152, Rev. Sts., the military forces may, by the authority of the President, be employed to assist in making the 'See U. s. V. Nelson, 29 Fed. Rep., 202. INDIAN WAR. 411 arrest of Indians concerned in the killing of cattle and committing of depredations on the frontier, provided their offences were committed in the Indian country or by Indians under the legal charge of an Indian agent. 65, 15, May, 1891^. INDIAN SOLDIER OR SCOUT. 1508. Where an enlisted Indian soldier belongs to a tribe which remains "under the charge of any Indian superintendent or agent," it is an offence under Sec. 2139, Rev. Sts., to sell to him spirituous liquor. Otherwise if he be attached to no such tribe and is under no such "charge."' 61, 333, September^ 1893. 1509. JlcJd that there was no statute of the United States under which the selling of spirituous liquor to Indian soldiers (not under the charge of an Indian agent), stationed on a U. S. military reserva- tion, by a civilian making the sales off the reservation, could be pun- ished as an offence. 53, 107, 2Iay, 1892. 1510. In the absence of legislation authorizing the appointment of farriers or blacksmiths in or for the Indian scouts of the army, held that to muster a scout as blacksmith for Indian scouts, with pay at the rate fixed by law for blacksmiths of cavalry, would be unauthorized and the pay could not legallj^ be rendered.^ 40, 116, 2£ay., 1890. 1511. Held that San Carlos Indians who were members of their tribe at the time of the passage of the act of Congress approved February 18, 1895 (28 Stats. 665), granting to a railroad company a right of way across its reservation, were not, by reason of their employment as scouts in the service of the United States, deprived of their share of the compensation paid by the railroad company to the tribe for the privilege of crossing the reservation. Card 1010, July, 1898. INDIAN WAR. 1512. Active hostilities with Indians do not constitute a state of for- eign war, the Indian tribes, even where distinct political communities, l)eing sul)]ect to the sovereignt}' 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 durmg its pendency and on its theatre the laws and usages which govern and apply to persons during the existence of a foreign war are to be recognized as in general pre- vailing and operative. See § 161, ante., and note to § IQS'i^post. That the mere making of predatory incursions by parties of Indians with ^U. S. r. Hurshnian, 53 Fed. Rep., 543. 2 See A. R. 484 (561 of 1901). ^See Worcester v. Georgia, 6 Peters, 515. 412 INSANITY. whose tribe no general hostilities have been inaugurated does not con- stitute an Indian war, see § 1686 and notes. 1513. Ihld that the Cherokee Nation, during the civil war, did not occup3^ 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 attitude from the date of its treat}" with the Confederate government of October 7, 1861, to its treaty with the United States of July 19, 1866, was that of an alhj of the Confed- eracy, to the extent that the individual members of the nation who took part in hostilities against the United States became legallj^ assimi- lated with the enemy. XXX, 20, July. 18G9. 1514. 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 repent- ant wards, to the protection of the Government, and acts of violence committed against them as if they were enemies, are not acts of legiti- mate warfare but crimes. Thus where an officer in command of a regiment of volunteer cavahy made a sudden and violent attack upon a village of friendly Indians (who, having been in a state of partial hostility had returned to their allegiance and had in fact been recog- nized as entitled to protection by the militar}' authorities), and caused the massacre of several hundred persons of whom the larger portion were women and children,^ — held 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 briefl}' the circumstances of the crime and so denouncing it as to discharge, as far as possible, the military administration from responsibility there- for. XVII, 424, October, 186b. INSANITY. 1515. Where indications of insanity are developed l)y the accused \n the course of a trial by court martial, the court will properl}' suspend proceedings and report the facts to the convening authority, adjourn- ing meanwhile to await his orders."^ XXXIII, 661, January, 1873. ^ See this raid upon Cheyenne Indians in Colorado, known as the "Sandy Creek Massacre," descril)ed and denounced in the Report of the Conjjressional " Committee on the Conduct of the War," of May 4, 1805. •'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 sinular practice of the civil courts, see People v. Ah Ying, 42 Cal. 18; also Taffe v. State, 23 Ark. 34. JUDGE-ADVOCATE. 413 1516. If ail insane soldier be brought to trial b}' court martial and he is shown b}" the record to have been insane pending the trial, the proceedings and sentence, if anj^ should ])e declared null and inopera- tive in orders. If the question of insanity in his case is not raised till after the proceedings have been acted upon and the sentence has been approved, and it then appears that he was actually insane, the sentence should be remitted. LV, 563, Apr!!, 1888. 1517. The Government has no power to compel an officer of the army to furnish his wife, for her support, with a certain proportion, or any part, of his pay. Where such an officer is confined in an insane asylum, his wife may, hy having a curator appointed, l^e enabled to avail herself of his pay for the support of herself and her famil3\ 59, 31:8, 21(11/, 189S. The wife of an officer under treatment at the Gov- ernment Insane Hospital, who has been duly appointed, and has given bond as, the guardian of her husband, under the laws of the State of her residence, mav, by the authority of Sec. 952, Rev. Sts., D. C, collect and receive his pa}' or other moneys that may be due him, in the same manner as if her "authority had been derived from the tribunals of the District." 57, 179, Felrxiary, 1893. INTERPRETER. 1518. That a member of the court acted as interpreter on a trial, htld an irregularity, but one which did not affect the legal validity of the proceedings. IX, 15, May, 186]^.. 1519. Where the charges against a private soldier were preferred b}' the captain of his compan}', who also acted not only as a prosecut- ing witness but as interpreter on the trial, held a grave irregularity which might well induce a disapproval of the proceedings and sen- tence, unless it quite clearly appeared that no injustice had been done the accused. 1 VII, 562, April, 1861^,. J. JUDGE-ADVOCATE. 1520. In view of the comprehensive terms of the 71th of the new code of Articles of War, ]((Rd that officers empowered by Arts. 81 and 82 to order regimental or garrison courts martial were as fully author- ized to detail judge-advocates for the courts convened by them as were 'That an important witnei^s for the proi?ecution on a trial should not properly be permitted to interpret the testimony of another such witness, is remarked in (i. C. M. O. 24, Dept. of Texas, 1875. 414 JUDGE- ADVOCATE. the officers who were empowered ])y Arts. 72 and T3 to order o^eneral courts. 1 XLIII, 100, December, 1879; 221, Fehrmry, 1880; 54, 348, JxJ,/^ 1892. 1521. Any commissioned officer may legally be appointed judge- advocate of a court martial. Thus a surgeon, assistant surgeon, or a chaplain, is legally eligilile to be so detailed. IX, 377, July, 186^. 1522. A separate judge-advocate should l)e appointed for each gen- eral 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 ma}' be deemed desirable by the commander, l)ut he should l)e detailed anew for every court martial on which he acts. To appoint in a general order a particular officer to act as 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, 2Lirch, 1863; XVI, 429, August, 1865. 1523. It is competent for the commander who has convened a court martial to relieve the judge-advocate originally detailed for it and substitute another in his place; and the second may in the same manner be relieved by a third, &c. The relieving, however, of a judge-advo- cate pending a trial uuist in general embarrass the prosecution of a case, and should not be resorted to if it can w^ell be avoided. V, 550, DecenJ,e,', 1863; VII, 534, A^nul, 186 J^. 1524. Where there have been two or more judge advocates succes- sively 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 pro- ceedings l)y his signature. II, 148, April, 1863. 1525. While a judge-advocate may be relieved pending a trial and a new one appointed, it would not be proper to make such a change after the conclusion of a trial, simply for the purpose of having the record authenticated. If authentication b}' the judge-advocate who officiated at the close of the trial cannot be obtained the sentence should l)e dis- approved.' Card 5230, October, 1898. ^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 competent to appoint a judge-advocate for the same. Accord- ingly, a judge-advocate is hereafter to lie ajipointed for a regimental or a garrison court martial in like manner as for a general court. "General Orders No. 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 ]\Iil. Div. of the Atlantic, this order is declared by the Secretary of War to be intended to be mandatory, not directory merely. 2 But A. R. 954, as amended by G. O. 134, A. G. 0., 1900 (1055 of 1901), now pro- vides, inter alia, that "Whenever, by reason of the death or disability of the judge- advocate occurring after the court has decict(>l><:'i\ 187 Jf)., and it cannot aii'ect the legal validity of the pro- ceedings of a court martial that the judge-advocate was personally objectionable or hostile to the accused (XXVII, 127, August, 1868; XLIII, 106, Decemher., 1879)., it is yet desirable to detail as judge advo- cate, if practicable, an officer who has no considerable prejudice 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 prosecution but would lie promoted in case the accused, an officer of his regiment of a higher grade, were dismissed by the court, reinarlied ujxyn as an unfortunate one.'' XXI, 177, January., 1866 ; XXXI, 361, May., 1871. 1530. An officer cannot in general fitly or becomingly act as jvidge- 1 The last occasions of such employment are believed to have been those of the trial of the persons charged with complicity in the assassination of President Lincoln, and the trial of ]\Iajor Haddock, Prov. Mar. Dept. (see G. C. M. O. 356 and 565, War Dept., 1865), upon which Hon. J. A. Bingham and Hon. Roscoe Conkling were respectively employed as judge advocates. For an early case in which a civilian, Avho was after- wards a President of the United States, was emploved as judge advocate, see note to § 1663, post. ^ In view of the provisions of sec. 17 of the act of June 22, 1870 (Sec. 189, Rev. 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 Navv is now authorized to retain a civilian lawyer to act as judge-advocate of a court martial. 13 Opins. At. Gen. 514; 14 id. 13. •'See G. C. M. O. 5, War Dept, 1871; do. 41 , Id., 1875. 416 JUDGE- ADVOCATE. advocate in a case in which he is personally interested as accuser or prosecutor. 39, 35, Ft^jrnai'i/^ 1890. Where the judge-advocate had prepared the charges and was the accuser in the case, and moreover entertained a strong personal prejudice or hostility against the accused, Iteld that he was ill-chosen to act as judge advocate especially in the capacities of prosecuting official and adviser to the court. XLIX, 613, December, 1885. One who, without personal prejudice against the accused or interest in his conviction, has signed the charges as com- pany commander, may not improperly act as judge-advocate in the case. 63, 210, January, 189 J^. 1531. A judge-advocate is not authorized to entertain charges in the first instance: he can properly 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, J/a/'cA, 1879. 1532. The judge-advocate is not unfrequently directed to prepare or re-frame charges; but where charges, already formally preferred, are transmitted to him for prosecution, he should not assume to modify them in material particulars in the absence of authority from the con- vening officer. While he ma}- ordinarily correct obvious mistakes of form or patent or slight errors in names, dates, amounts, &c. , he can- not without such authority make suJ>stant!<(l amendments in the alle- gations, or — least of all — reject or withdraw a charge or specification, or enter a )toUv//V, and the judge-advo- cate is subject to the direction of the court in preparing it. XXI, 679, NoreiJihi/i\ 1S6G. 1538. One of the functions of the judge-advocate of a court martial is the execution of its orders. If a court-martial adjourns subject to the call of the presiding officer, the judge-advocate is carrying out the orders of the court when notifying members of the time designated b)^ the presiding officer for reassembling. LXVIII, 670, April, 1885. 1539. An absence of the judge-advocate from the court during the trial does not per se aliect the validity of the proceedings, but is of course to be avoided if possible. When the judge-advocate is obliged to temporarily absent himself, the court should in general suspend the proceedings for the time; or, if his absence is to be prolonged, should adjourn for a certain period. XXI, 177, January, 1866. No one can assume his duties in his absence, except that the record of a meeting and adjournment in consequence of such absence would be made as the court might direct. Card 2059, February, 1896. 1540. 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 tes- timony 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, January, 1866. 1541. A judge-advocate of a court martial may be detailed to per- form 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-advocate, should be imposed upon him pending an important trial. XXIX, 273, SeptemheT, 1869. 1542. The judge-ad v^ocate 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 an}'; the function of the judge-advocate, at this stage of the proceedings, not being confined merely to a replying to the accused. The court is not authorized to deny to the judge-advocate this right to be heard. XXXII, 499, April, 1872; XLIX, 613, Decemher, 1885. The judge -advocate in his address is not authorized to read to the court evidence or written JUDGE- ADVOCATE. 419 statements not introduced upon the trial and which the accused has had no opportunity to controxert or comment upon. XXII, 238, Jnii<\ 1866. 1543. The only authority tor the employment of reporters for courts- martial is that contained in Sec. 1203, Rev. Sts., which authorizes the judge-advocate of a military court to appoint a reporter for such court. In view of this statute ; hdd that the appointment, by a judge-advo- cate on the statf of a department connnander, of a person to act as reporter for all the courts to be convened in the department, was in contravention of the statute. XI, 361, January, 1865. 1544. For the court or the president of the court to place or order the judge-advocate in arrest would be an unauthorized proceeding. The court indeed, in a proper case under Art. '^^^ might proceed against its judge-advocate as for a contempt. But an arrest could not be imposed nor a punishment executed in the case of such officer, except through the convening authority or other competent com- mander. Ill, 603, Se2)temler, 1863; XXI, 629, Septemher, 1866. 1545. 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 arm}" commander — it is the duty of the judge-advocate, upon the com- pletion of the record, to transmit the same to such officer (or his suc- cessor in command) for the proper action. Where the court was convened by the President, it is the duty of the judge-advocate to transmit the completed proceedings directly to the Judge- Advocate General,^ in order that he may exercise the revisory function reposed in him by Sec. 1199, Rev. Sts.^ XLII, 457, Decemher, 1879. 1546. The general presumption of law, made in favor of all public officers, in the absence of affirmative evidence to the contrary, that the^' duly fulfill their functions, applies to the judge-advocate. LV, 182, Decemher, 1887. 1547. The act of July 27, 1892 (27 Stats., 278), requiring the with- drawal of the judge-advocate whenever the court sits "in closed session," held not to applj^ to a meeting of the court, had after judg- ment, to hear read the record of the findings and sentence, such pro- ceeding l)eing no part of the trial. 62, 363, JSfovemher., 1893. 1548. The object of the legislation excluding the judge-advocate f I'om closed sessions of a court-martial is not only that there should be no unfairness to the accused, l)ut that there should be no possibility of iSee G. O. 72, War Dept., 1873; do. 39, Hdqrs. of Army, 1877. '■'It may here be noted that the 113th Article of War, the only statute relating to the forwardiuir, l)y judtre-advocates of the proceedings of general courts, is incom- I>lete and not in liarniony with the provisions of Arts. 104 and 109. Tha practice on the subject is now regulated by jiaragraph 892, Army Regulations of 1895 (993 of 1901), which requires that "proceedings of all courts and military commissions appointed by the President" shall be sent direct to the Secretary of War. 420 JTJDGE-ADVOCATE. such unfairness. The statute does not contemplate the exercise of any discretion b}' the court in the matter, nor does it admit of an}' excep- tion being made to the procedure described and required, even though such exception be in favor of the accused. A strict compliance with its requirements is necessary, and a failure to comply with them would probably be held to vitiate the proceedings.^ Ad^' ised thereiore in the particular case, that if the court had not arrived at a finding, the court be dissolved, and a new one appointed for the trial dc novo of the accused. Card 1637, October, 1895. 1549. A judge-advocate is authorized to subpoena witnesses only for testifying in court; he cannot summon a witness to appear before him- self for preliminary examination. For this purpose he must procure an order to be issued by the proper commander. Lll, 508. Sej^temhe?', 1887. 1550. A judge-advocate has no authority to employ a civil official or private civilian to serve subpoenas, if liy so doing the United States will be subjected to a claim for compensation. 32, 365, May, 1889; 51, 407, January, 1892. But see §§ 2470 and 24:71, j)ost. 1551. Sec. 1202, Rev. Sts., authorizes only judge-udvocates of courts- martial to issue process to compel the attendance of witnesses. The court itself — general or inferior — has no such power. L, 632, August, 1886; 51, 468, Januciry, 1892. But the judge-advocate is authorized only to initiate the process of attachment. The statute does not specify b}^ whom it shall be executed, and the judge-advocate is not authorized to command any officer or person to serve it; nor has the court any such power.' L, 632, su/nxi. 1552. A judge-advocate, having attached a civilian witness and had him brought to the place of the court, detained him one hour in the guard house before bringing him before the court. For this he was indicted (for false imprisonment) in a U. S. district court in Texas. Held that his action was warranted under Sec. 1202, R. S. , and advised that the Attorney General be reciuested to cause the prosecution to be discontinued. L, 191, April, 1886. 1553. The judge-advocate, in forwarding the interrogatories for a deposition, should transmit with them a subpoena (in duplicate) requir- ing the witness to appear at a stated place and date before a certain person who is to take the deposition. Particulars not ascertained may l)e left blank to be supplied by the officer or person by whom the sub p(ena is served. When the deposition has been duly taken and returned, the judge advocate should transmit to the witness (or to some officer, ' So held in cases published in S. O. 19, Dept. of Colorado, 1896; and S. O. 23, Dept. of the East, 1896. ^ Par. 923, A. R. (1026 of 1901), makes provision on this point. JUDGE-ADVOCATE GENERAL. 421 &c., for him) the usual certiticate of attendance (accompanied ])y a copy of the convening- order), the duration of the attendance to be ascer- tained from the deposition. LV, 38-i, Jfarc/i, 1S88. 1554. Affidavits required to be taken in the execution of contracts pertaining to military administration may be taken Ijefore the judge- advocates and other officers named in the act of Congress approved July 27, 1892. This act having been passed subsequent to the enact- ment of Sec. 37-45, Rev. Sts., modifies the latter to the extent stated. Cards 3671, jVovcmiher, 1897; 3768, January, 1898. JUDGE-ADVOCATE GENERAL.' 1555. The work done in his office and for which this officer is respon- sible consists mainl}" of the following particulars: Reviewing and mak- ing reports upon the proceedings of trials by court-martial of officers, enlisted men and cadets, and the proceedings of courts of inquiry; making reports upon applications for pardon or mitigation of sentence; preparing and revising charges and specifications prior to trial, and instructing judge-advocates in regard to the conduct of prosecutions; drafting of contracts, bonds, &c. , as also — for execution bv the Sec- retary^ of War — of deeds, leases, licenses (see License), grants of rights of way, approvals of location of rights of way, approvals of *The Judge- Advocate-General's Department now consists of the Judge- Advocate- General and eleven judge-advocates (two of the rank of colonel, three of the rank of lieutenant-colonel, and six of the rank of major), and of as many acting judge- advocates (temporarily detailed with the rank of cajitain) as may be necessary to supplement the regular officers so that "each geographical department or tactical division of troops" may be supplied with a ju(lge-advocate. See sec. 15 of the act "to increase the efficiency of the permanent militarv establishment," apj^roved Feb- ruary 2, 1901, published in G. O. 9, A. G. O., 1901. " The Secretary of "War (Stanton), under date of November 13, 1862, defined the duties of a judge-advocate of the corps of judge-advocates ajipointed under section 6 of the act of July 17, 1862 (12 Stats., 598), as follows: "Your duties will be — "1. Those pertaining to the office of judge-advocate under the general military law as defined in the standard works of military jurisprudence. "2. To advise and direct all provost-marshals or other ministerial officers, civil or military, in the police or other duties that may l)e directed l)y the orders of the War Department, or commanding general, or l)y the Judge- Advocate General from time to time. "3. Such other special duties in regard to state prisoners and measures relating to the national safety as may V)e assigned you by the Department, by the commanding officer, or l)y the Judge-Advocate-General. "4. To advise the War Department, through the Judge- Advocate General, upon all matters within your military district whenever you may deem the action of the Department important to the national safety and the enforcement of the laws and Constitution. "5. To apply for special instructions to the commanding general upon such mat- ters as may need special instruction to guide your action. "6. To report to tlie commanding general all disloyal practices in your district, and when prompt action is reijuired, take such measures [as may be necessary] through the provost-marshal, military commandant, or other authority to suppress them." 422 JUDGE-ADVOCATE GENERAL. plans of bridges and other structures, notices to alter bridges as obstructions to navigation, &c. ; framing of bills, forms of procedure, &c. ; preparing of opinions upon questions relating to the appoint- ment, promotion, rank, pay, allowances, &c., of officers, enlisted men, &c., and to their amenability to militar}^ jurisdiction and discipline; upon the civil rights, liabilities and relations of military persons and the exercise of the civil jurisdiction over them; upon the employment of the arm}" in execution of the laws; upon the discharge of minors, deserters, &c., on haheas corjjus; upon the administration of military commands, the care and government of military reservations, and the extent of the U. S. and State jurisdictions over such reservations or other lands of the United States; upon the proper construction of appropriation acts and other statutes; upon the interpretation and effect of public contracts between the United States and individuals or corporations; upon the validit}' and disposition of the varied claims against the United States presented to the War Department; upon the execution of public works under appropriations by Congress; upon obstructions to navigation as caused by bridges, dams, locks, piers, &c. ; upon the riparian rights of the United States and of States and individuals on navigable waters, &c., &c.; and the furnish- ing to other departments of the Government of statements and infor- mation apposite to claims therein pending, and to individuals of copies of the records of their trials under the ll-ith Article of "War. The matter of submitting to the Judge-Advocate General applications for opinions is regulated by par. 852, A. R. (768 of 1895; 853 of 1901). 37, 11, JVovemher, 1SS9. 1556. It is contrary to the practice of the Judge-Advocate General's Office to give, upon request of the militar}^ officers or the officials of a State, opinions on questions arising in the militarj^ administration of the State. Cards 685, Noveniber, 189J{.; 1287, Ajjrll, 1S95. Simihirly held with respect to requests made directly to the Judge-Advocate- General for opinions upon questions relating to an}' other internal affairs of a State. Card 578, October, 189^. 1557. The reports of the Judge- Advocate General to the Secretary of War have always been regarded as conffdential communications and it has not been the practice to furnish copies of them to parties outside the department in the absence of special authority from the Secretary of War. Cards 663, Decemher, 189J^.; 1013, July, 1898, and Mireh, 1899. 1558. The Judge-Advocate General has no administrative jurisdiction over claims of parties employed to report the proceedings of court- martials. Card 6191, April, 1899. LAND. 423 L. LAND. 1559. As between the United States and a State, the soil of the bed of navigable waters and of the shores of tide waters below high- water mark, or — on rivers not reached by the tide — the soil of the shores ' below the ordinary water line (as not affected by freshet or unusual drouth), belongs to the State. See §§ 1711 and 1773, jmst. But natural accretions to land owned by private individuals belong to the owners of the land. Thus, held that the accretions to Hog Island in the mouth of the Missouri River belonged, not to the United States or to the State of Missouri, but to the owner of the island. LI, 636, 2fareh, 1887. 1560. Where land proposed to be conveyed by a State to the United States for the purpose of fortifications was described in the proffered deed as extending to the sea and in a line along the sea, Jield that such a deed would convey only land extending to and bounded by high-water mark, and advised that the grant should be so expressed as specilically to include the shore to low-water mark, and should also embrace such water-covered lands as would be sufficient to prevent the erection by the authority of the State of structures that might interfere with the proper use of the land for purposes of fortifications. 64, 249, March., 18H. 1561. Where certain land, part of the battlefield of Gettysburg, was in danger of being so cut up and altered by the construction of an electric railroad as to cause the obliteration of important tactical posi- tions occupied by different commands engaged in tl 3 battle, advised that the Attorney General be requested to have initiated the proper proceedings for the condemnation of the land so that the United States may acquire the fee, and for an injunction restraining the railroad company from constructing or operating its road upon the land pend- ing the condemnation proceedings.^ 64, 411, Aj)rd, ISOJf,. 1562. JLJd that the granite monument erected ])v the United States, under an appropriation by Congress for the purpose, on land belong- ing to the State at Newburg, New York, and known as Washington's Headquarters, became, in the absence of any provision in the statute or agreement with the State, the propert}^, as a fixed improvement, of that State. 49, 20, Augmt, 1891. 'Compare subsequent opinion of Attorney-General, in I'O Opins., 628. 424 LAW OF WAR. LARCENY. 1563. Held that grass cut for hay upon a military reservation was in law, at least if not at once removed, personal property, so that a person wrongfully cutting such grass and allowing it to remain till it became ha}^ or for any material period before asportation, was charge- able with a stealing of property of the United States under the act of March 8. 1875, c. 144, which makes such stealing a felony punishable by line and imprisonment. 64, 270, 803, March and April^ 189}^.. 1564. A soldier, contemplating desertion, borrowed from another soldier, on the day of his absenting himself, a blouse, which he there- upon proceeded wrongf ull}^ to dispose of. Hdd that if, as was quite evidently the fact, he had, at the time of l>orrowing, the intention to appropriate, he was chargealile with larceny, since the owner, in lend- ing, consented to part with the possession only, not the property.^ 60, 165, .Tun<^, 1893. 1565. A soldier was charged with the larcenj^ of a certain sum of money in currency from the post trader's store. At his arrest a sum in currency of about the same amount, but not capable of identihca- tion as the same mone}^, was found on his person, and, lieing claimed by the trader, was turned over to him by the post commander. The soldier was then tried and acquitted. Held that the post commander should refund to the soldier the amount taken from him and improp- erly turned over to the trader. L, 520, Jidy^ 1886. 1566. Where a State statute imposed the disabilit}' of loss of the right of suti'rage upon persons convicted of larceny, held that the con- viction intended was conviction by a civil court, and that a conviction of this crime b}^ a court-martial (convened within the State) would not w^ork such disability, or — to enable the soldier, upon his discharge, to vote in the State — require a pardon by the President. 27, 65, Sej)- temher, 1888. LAW OF WAR.' 1567. The law of war is, in brief, the law of militar}' goverimient and authority as exercised in time of war, foreign or civil. Its usual held 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 § 1639, j!;o.9^. It is properly a part of the law of nations, though its application may be materially varied b}' the circumstances of the country or the people brought under its sway. 'See Bishop's Criminal Law, seventh edition, §§ 809 and 813. ^See Manual for Courts-Martial (1901), Introduction, Sec. I. LAW OF WAR. 425 It is a fundamental principle of the law of war that, during- a state of war, all commercial intercourse between the l)elligerents is inter- dicted and made illegal except when and where it may be expressl)^ authorized b}' the Government. During- the civil war, which, as respects the application in general of the laws and usages of war, was assimilated to a foreign war, ^ all trade and intercourse with the enemy, except so far as permitted by the President under authority :^rom Con- gress (or in rare cases by a commanding general in the field repre- senting- the President) was necessarily suspended.' XI, 533, 647, 651, March and A2?r{l, 1865; XII, 259, January, 1865; XIV, 241, March, 1865; XVI, 572, Septemher, 1865; XIX, 673, Jidy, 1866; XXX, 346, May, 1870. 1568. As to the principal forms of violation of the law of non-inter- course, and other violations of the laws of war, made the subject of trial bv military commission during the civil war, see § 1682,^>6>.y?'. 1569. Where a chaplain of the Confederate army came within the lines of the U. S. army during- the war without the authority of the Fed- eral government, and was apprehended, tried and convicted of the ofi'ence involved, and sentenced (December, 1864) to be confined dur- ing the war, advised that while his act was in violation of the law of war, yet, as it appeared that his only object in coming within our lines was to purchase bibles, his punishment might well be remitted on his taking the usual oath of allegiance to the Federal government. XI, 553, 2rarch, 1865. 1570. Offences against the law of non-intercourse between the bellig- erents in time of w^ar are no less such when committed by foreigners than when committed by citizens. Thus where certain persons made their way earl}^ in the civil war from Scotland to South Carolina, engaged for a considerable period in the manufacture of treasury notes for the Confederate authorities, and at the end of theii' employment came secretly and without authority into our lines with the design of returning to their home, — held that, though British subjects, they had 'Ste Prize Cases, 2 Black, 666-9; Dow v. Johnson, 10 Otto, 164; Brown v. Hiatt, 1 Dillon, 372; Philips v. Hatch, Id., 571; Sanderson v. Morgan, 39 N.York, 231; Per- kins r. Rogers, 35 Ind.,124; Leathers r. Com. Ins. Co., 2 Bush, 639; Hedges r. Price, 2 West Va., 192. ^ The Ouachita Cotton, 6 Wallace, 521; Coppell v. Hall, 7 /(/., 542,554; McKee v. United States, 8 id., 163; United States v. Grossmayer, 9 id., 72; ]Montgomerv v. United States, 15 id., 395; Hamilton v. Dillin, 21 id.,Ti; Mitchell r. United States, iV?.,350; ^Matthews r. McStea, 1 Otto, 7; Dow ?'. Johnson, 10 (VZ., 164; Kershaw r. Kel- sey, lOO^Iass., 561; Lieber's Instructions, G. 0. 100, War. Dept., 1863, par. 86. Besides the suspension incident to the state of war, a suspension of commercial intercourse with the enemy was s]>ecially directed by act of Congress of July 13, 18(51, and pro- claimed by the President on Aug. 16, 1861. By authority conferred by the same statute, general regulations, cimcerning commercial intercourse with and in the States declared in insurrection, were approved by the Presiilent, January 26, 1864, and j.ul.lished in G. O. 53, Dept. of the Gulf, of April 29, 1864. 426 LAM" OF WAK. identified themselves with the cause of the enemy, and were properly amenable to trial for the offence of penetrating our military lines in violation of the laws of war. XV, 112, Jlarc/t, I860. 1571. Where a party arrested in attempting without authority to cross the Potomac for the purpose of holding communication with persons in the enemy's country, was ordered l)y the department com- mander — his offence having been committed in a district in military occupation — to be placed under military 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 proceeding was warranted by the laws and customs of war. Ill, 255, Juli/, 1863. 1572. 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 portion 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 general to be arrested and held till the offenders, who meanwhile had taken refuge with the enemy, should be sur- rendered for trial. Held that such an act of retaliation was warranted b}' the laws and usages of war. IX, 210, June., 186 1^.. 1573. There can be no doubt as to the authority of the commander of an army, in occupation and government of the enemy's country, to suppress a newspaper or other publication deemed by him to be inju- rious to the public interests in exciting opposition to the dominant authorit}' or encouraging the support of the enemy's cause on the part of the inhabitants. A newspaper may be a powerful agent for such a purpo.se, and, when it is so, it may, under the laws of war, as legally be silenced as may a fort or battery of the enenw in the field. II. 585, June, I860. 1574. Held., that a .s3\stem of correspondence which had been con- certed and maintained between northern and southern newspapers l)y means of an interchange of published communications entitled "Per- sonals," was an evasion of the rule interdicting intercourse with the eneni}' in time of war, and, not being within the regulations established for correspondence by letter between the lines ])y fiag of truce, should not, however innocent might be many or most of the communications, be sanctioned by the Government, l)utthat the proprietors of the north- ern newspapers concerned should be notified that unless the practice were discontinued, they would be liable to be proceeded against for promoting correspondence with the enemy in violation of the laws of war or of the special act of February 25, 1863.^ XII, 259, Jmnniry., 1865. ^See G. O. 10, Dept. of the East, 1865. LAW OF WAR. 427 1575. The taking possession, b}^ the order of the commander of the militar}^ department at New Orleans, for the use of the military service in the prosecution of the war, of moneys belonging to enemies, on deposit in the ])anks of that city, while occupied (in 1S63) hj our army, /le/d an act justified b}^ the strict law of war.' XIX, 612, May, 18G6. Contributions of money exacted from the enemy hy competent military authority", being justified by the law of war and conquest,^ hthl that a tax of five dollars per bale, levied (in 1864) by the military commander at New Orleans, Gen. Canby, upon cotton brought into that city, and applied to hospital, sanitary and charitable purposes, was authorized under the discretionary power with w^hich such a com- mander was properly invested in time of war.^ XVIII, 668, March, 1866. 1576. It is a principle 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 necessarih^ be sus- pended or their operation be ali'ected by his acts.* So, where a testator had executed, in Vicksburg, Mississippi, after its capture and during its occupation 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; held, 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, March, 1866. 1577. It is authorized by the laws of war for a military officer com- manding in time of war in a region in military occupation, and where 'See New Orleans r. Steamship Company, 20 Wallace, 394; Witherspoon v. Farm- ers' 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 unau- thorized by the law of Avar, l)ut for the reason that a previous commander — Gen. Butler — by his proclamation on first occupying the city, of May 1, 1862, had pledged the Government to the holding inviolate of all rights of property. And see The Venice, 2 Wallace, 258. -Lewis r. jSIcGuire, 3 Bush, 202; Clark v. Dick, 1 Dillon, 8. And see ilaj. Gen. Scott's order (G. G. 395, Hdqrs. of Army, 1847) levying assessments upon ISIexican communities for the support of the military government and occupation. ■'See Hamilton r. Dillin, 21 Wallace, 73. * " By the well recognized principles of international law, the mere military occu- pation of a country by a' belligerent power or a concjueror, does not iiimfado displace the municipal laws. Such conqueror or belligerent occupier may suspend or supersede them for the time Ijeing, Imt, in the absence of orders to that effect, they remain in force." Wingtield r. Cros1)y, 5 Coldw., 246. "Supreme miUtary autliority in a city is not incompatible with the existence and authority of courts of civil jurisdiction and ]»rocedure.-" Pepin r. Lachenmeyer, 45 N. York, 27. And see Kimball r. Tay- lor, 2 Woods, 37; Eutledge r. Fogg, 3 Coldw., 554; Hefferman v. Porter, 6 id., 391; ]\Iurrell r. Jones, 40 Miss., 566; Dow v. Johnson, 10 Otto, 158, 166. 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 was illus- trated' by the Supreme Court in the cases of Coleman r. Tennessee, 7 Otto, 509; Dow V. Johnson, siipm. 428 LAW OF WAR. the ordinary courts are closed l)y the exigencies of the war, to appoint a special court or judge for the determination of cases not properly cognizable ])y the ordinary military tribunals. In the civil war such courts were not unfrequently constituted and were commonl}' desig- nated pi'omat courU. II, l-t, Felruarij, 1863; XV, 519, July, 1865. Such courts had no jurisdiction of purely military offences (/. e. offences which the Articles of War make cognizable by court-martial), and were therefore not properl}" authorized to impose forfeitures of pa}' or other strictly military punishments upon officers or soldiers of the army. VI, 635, Decemler, 1861^; VIII, 638, X, 39, 560, and XIII, 65, ll-I, July to Dtcemher, 186]}.. These courts were in general resorted to as substitutes for the ordinary police courts of cities, and their jur- isdiction was in general confined to cases of breaches of the peace and of violation of such civil ordinances or military regulations as might be m force for the government of the localit}'. ^ XIII, 392, Fehraary. 1865. 1578. Held that a person taking photographs of fortifications in time of war runs the risk of being treated as a spy, or at the least of doing a thing forljidden by the law of war. His arrest outside the limits of a military reservation would not be a trespass; nor would the seizure and retention of the photographic plates l)e unlawful. Their retention would be proper though no notice to the public prohibiting the taking of such photographs had been given. Card 4784, August, 1898. 1579. Under the law of war a government by military occupation has no power to alienate immovable property so as to render such aliena- ^ Some of these courts, however, took cognizance, in the course of their existence, of cases of very considerable importance, civil as well as criminal. See the following General Orders establishing or relating to Provost Courts and similar tribunals: G. O. 41, Dept. of Virginia, 1863; do. 45, Dept. of the Gulf, 1863; do. 6, 77, vW. 1864: do. 103, 146, Dept. of Washington, 1865; do. 39, id. 1866; do. 102, Dept. of the South, 1865; do. 30, 38, 49, 68, Dept. of S. Carolina, 1865; do. 37, id. 1866; do. 31, Dept. of the Mississippi, 1865; do. 12, Dept. of Arkansas, 1865; do. 5, Mil. Di v. of the James, 1865; do. 31, First Mil. Dist.,1867; Circ, Second /ei\ 1898. 1580. Anj'thing that may properly be made a law of a military gov- ernment, and which is promulgated in any effective way that the supreme military commander may see tit to promulgate it, becomes a valid law of that government on being so promulgated and must be obeyed b}" all persons within the territory. No rules or laws that may have been in force in the territory prior to its military occupation can compel the commander to adopt an}^ particular manner of promulga- opiiiiou of its judge, Hon. C. A. Peabody (in 1865) , in the cases of the United States r. Reiter & Louis, reported in 13 Am. Law Reg. 534. Tlie civil jurisdiction of a similar »Yn- court — the "Commission" establislied by the department conunander in Memphis in 1863 — was similarly recognized in Heffer- man r. Porter, 6 Coldw. 391. And as to the full authority of this tribunal as a substi tute for the ordinary civil courts of the locality', see also State r. Stillman, 7 id. 341. But see, contra, Walsh r. Porter, 12 Heisk. 401. In the cases thus sustaining the action of special tribunals during the civil war, the courts in general refer to the earlier and leading case of Leitensdorfer v. "\Vel)b, 20 Howard, 176, in which was affirmed the authority of the courts established in 1846 in New IVIexico as a part of the system of civil government instituted by Gen. Kearney, the military commander. With this case consult also United States v. Rice, 4 Wheaton, 254; Cross v. Harrison, 16 Howard, 164. The reasoning upon 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 ctiuntry in military occujiation attaches to tlie dominant power by the law of war and of' nations as an incident to the power to estal^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 property and for the administration of justice"; and that when during the civil war sui-h courts were created by connnanding generals — such as theconnnanders of separate dei)artinents or armies — the order of the conunander was to be ])resnmed to l)e the order and act of the President. ' Wheaton Int. Law, third Eng. edition by Boyd p. 469; Hall's Int. Law, fourth edition, 482-508; Birkhimer's Military Government and Martial Law, 197. 430 LAW OF WAR. tion of the rules enjoined hy him. The chief commander in the ter- ritoiy governed )jy military g-overnment does not till any office or posi- tion that formed a part of the government of the country prior to the military occupation; nor is he bound by any rules or laws relating to the performance of official duties by any governor or other officer of the government displaced. Card 5978, Jfai/, 1898. 1581. As a result of military occupation the taxes and duties payable by the inhabitants to the former government become payable to the military occupant, unless the latter sees tit to substitute for them other rates or modes of contribution to the expenses of the govern- ment. So, held that the President acted clearly within his powers when under date of August 8, 1898, as commander-in-chief of the army and navy he ordered and directed what the tariff and duties to be levied and collected as a military contrihution upon the occupation and possession of any ports and places in the Island of Cuba by the forces of the United States should be; that regulations for the admin- istration of such tariff and duties should take effect and be in force in the ports and places when so occupied; and that questions arising under said tariff' and regulations should bo decided b}- the general in command of the United States forces in said island. Card 5268, Novi-mler, 1898. 1582. The destruction or injury of private property in battle or the bombardment of cities and towns has to be borne by the sufferers as one of the consequences of war. Whatever would embarrass or impede the advance of the enemy, as the breaking up of roads or the burning of bridges, or would cripple and defeat him, as destroying his means of subsistence, may be lawfully ordered by the command- ing general. The necessities of war justify all this. The safety of the State in such cases overrides all considerations of private loss. Salus p(>2>uli\%\}ii^\\m tvuXh snjrremalex.^ So held that the United States was not legally responsi])le for damages to the house of a resi- dent and citizen of Santiago, Cuba, caused "by a shell fired from an American war ship on or about the fifth day of July, 1898, during the bom))ardment of the city.'" Card 5619, January, 1899. 1583. Under the terms of the protocol of August 12, 1898, and of the Treaty of Peace, signed at Paris on December 10, 1898, all of the iuuuovable property on the island of Porto Rico belonging to the gen- eral government and as such "to the Crown of Spain" together with certain propert}' in the nature of public records was ceded to the United States. All other m()val)le propert}' of the general govern- ment for which no special pi'ovision was made either in the protocol ^ See U.S.r. Pacific Railroad, 120 U.S., 227, and auth(.rities cited. LEASE. 431 or treaty remained the property of Spain to be disposed of as desired by the latter. Certain articles of this movable property (office furni- ture) which it appeared had been, like the pul^lic building-s and other public works of the island, paid for from appropriations collected from the island, were ordered purchased from the Spanish government out of the insular funds collected by the United States. JLJd that the payment could legally be made as ordered, the property belonging to Spain and not to the "island government," there never having been an independent government for Porto Rico. Card 6828, Angiist^ 1899. 1584. When the treatj' of peace with Spain took effect, April 11, 1899, the military government was in control in Porto Rico, and right- fully continued as the de facto government of the island exercising both executive and legislative powers,^ subject to such constitutional limitations as were applicable. As the island had become territory of the United States, under the treaty, the Secretarv of War was with- out power in the absence of congressional authority to alienate an}- part of the public domain, ])ut held that he could, as representative of the President, lawfully license the temporary use of the same during the occupanc}" and government of the island by the military authori- ties.' Card 6990, Novemler, 1899. LEASE. 1585. By the River and Harl^or Act of August 5, 1886, the United States f ormalh' accepted from the State of Ohio the Muskingum River Improvement, with all its franchises, appurtenances, water rights, &c., subject to any existing leases of water rights under leases granted by the State. The State, by its official representative, had made a lease to certain individuals which contained a clause providing for a forfei- ture of the lease in case of an assignment without the sanction of the lessor. The lease w^as assigned to a third party without an}'^ formal sanction or concurrence on the part of the lessor, but the lessor, sub- sequently to the assignment, accepted rents from the assignee. Held that such acceptance amounted to an absolute waiver of the forfeiture clause, and made the lease valid in the hands of the assignee, investing him with all the rights of the original lessees,^ and was therefore bind- ing upon the United States under the reservation of the act. 22, 1:5, January., 1888. 1586. The act of Congress approved Aug. 11, 1888 (25 Stats. 117), authorized the Secretary of War ''to grant leases or licenses for the 1 Cross V. Harrison, 16 Howard, 164, 193. -See Opinion of Atty. (ienl. of July 26, 1899 (22 OpiuH., 544). "Taylor's Landlord and Tenant, § 497. 432 LEASK. use of the water powers on the Muskingum liiver at such rate and on such conditions and for such periods of time as may seem to him just, equitable and expedient * * '" and " * "" to grant leases or licenses for the occupation of such lands l)elong-ing to the United States on said Muskingum River as may be required for mill sites or for other purposes not inconsistent with the requireiuents of navigation." Under this statute two leases for periods of twenty years each were granted, but neither provided for a forfeiture of the term for non-payment of rent. Ildd, therefore, that the Secretary of War could not terminate them on account of non-payment of rent*/ and advised that the proper way to terminate them would be to have the lessees execute instru- ments surrendering their terms. Card 2096, JSIarcli^ 1S96. See card 3242, Jan uary, 1900. 1587. Where a lease made to the United States, of land to 1)e used foi- pul)lic purposes, contained no stipulation other than one for the payment of certain rent, Jwld that such lease was not annulled ])y trans- fer under Sec. 3737, Rev. Sts., but was legally assignable. The case is deemed to be govei'ned 1)y the ruling of the Supreme Court in Freed- man's Saving Co. v. Shepherd,' to the effect that Sec. 37;^>7 did not appl}^ to a lease so made, "under which the lessor is not required to perform unj service for the Government, and has nothing to do in respect to the lease except to receive from time to time the rent agreed to be paid." 43, 175, October, 1S90. 1588. Where rent was due by the United States for the occupation of a house which it had leased for a recruiting rendezvous, and the title to the premises was claimed both by the lessor and another per- son as parties to a pending suit in a court of chancery, — advist-d that if the rights of the parties to the rent were so involved in the litiga- tion as to enable the United States to pay the amount of the rent into court and receive an acijuittance therefor, this course would properly l)e pursued; otherwise that the payment should 1)0 withheld entirely until the question of title ])e determined and the United States be enal)led to receive a final receipt from one of the parties or both jointly. 64, 15, 300, February and April, 189Ii,. 1589. Where land was leased by the United States for a target range in the State of Texas and the lease contained a covenant for renewal at the end of the year at the option of the United States, JnJd ihwt unless the lease were acknowledged (or proved) and recorded as jjrovided by the Statutes of Texas, such covenant would not be binding upon a purchaser for value without notice thereof.' Card 2439, July, 1896. ^Taylor'y Landlord and Tciuint, eighth ed., § 4S9; Am. and Eiig. F.ncy. of Law (1st edition), vol. 12, p. 758A'. •^27 U. S., 494; 4 Comp. Dec, 43. ^As to how a lease containing a covenant for renewal t^liould l>e I'enewedj see § 882, mite. LEAVE OF ABSEISICE. 433 1590. Under the act of Congress approved July 28, 1892 (27 Stats. 321), the Secretary of War has authority, when in his discretion it will be for the public good, to lease for a period not exceeding five 3^ears and revocable at any time such property of the United States under his control as may not for the time he required for public use, and for the leasing of which there is no authority under existing law, provided that nothing in the act should be held to apply to mineral or phosphate lands. Under this act revocable leases have been granted in a number of instances. Cards 851, January and April ^ 1S95; 1790, November, 1895; 2102, March and October, 1896; 1100, May, 1898. In practice the leases or assignments thereof are required to be in duplicate. Cards 178, 179, August, 189 J^; 111, Octoher, 189 Jf. Under the express terms of the act the Secretary of War has no authority to lease mineral or phosphate lands. Cards 3619, Noveaiber, 1897 ; 6389, 6721, May and July, 1899. In a certain class of cases, to wit, where the parties applied for permission to construct certain buildings upon reservations and to build docks in a government harbor, revocable leases were granted in lieu of licenses.^ Cards 3350, 3356, 3378, July, 1897. 1591. As there is no law requiring the Secretary of War to call for bids in leasing property under the act of July 28, 1892, the amount for which it shall be leased rests in his discretion. Card 273, 8ep- temhr, 189 J^. ■ i 1592. The Secretary of War leased a part of a military reservation, the rent to be paid monthly during the continuance of the lease. The lease provided that the term should be three years from the twelfth day of Jul}', 1891, but it was not in fact executed b}" the Secretary until Sept. 12, 1891. The lessee entered upon the reservation about the latter date and vacated the same on July 12, 1897, the date of the termination of the lease. Held that in point of computation the three years term dated from July 12, 1894, but that in point of interest the lease took effect only from the delivery of the instrument, and that therefore rent could be collected for only about two years and ten months.' Card 273, July and October, 1897. LEAVE OF ABSENCE. 1593. The provision of the act of July 29, 1876, to the effect that officers shall enjoy the extended leaves of absence accorded by the act, "without deduction of pay or allowance," held to entitle such officers to receive their allowance for quarters, as well as their full pay for and >See Opins. Atty. Gen. of May 19, and July 7, 1897, 21 Opins., 537, 565. ^See Taylor's Landlord and Tenant, eighth ed., § 70. 16906—01 28 434 LEAVE OF ABSENCE. during the period of absence. Tlie word ""allowance" must mean something — must mean some pecuniary emolument distinct from pa^'; and the only allowance or pecuniary emolument allowed to officers, at the date of the act or since, is the allowance for quarters.^ XLIII, 277, AjV'il, 1880. 1594. ITcld, in estimating the period of the leave of absence to which a certain officer would be entitled under the provisions of Sec. 1265, Rev. Sts., and the act of July 29, 1876, without incurring a deduction from his pay, that a period during which he was permitted to l)e absent from his post, while under a sentence of suspension from rank, was not properly 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, May, 1879. 1595. Where an officer was granted by his department commander a specific 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 Washington, or his case as excepted from the general rule of par. 176 of the Army Regulations, which requires that the expiration 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, Ajyril, 1880. 1596. Held that G. O. 77 of 1886, and par. 1460, A. R. (1317 of 1895; 1468 of 1901), constituted a correct interpretation of the act of July 29, 1876, and a rule of application now to be observed in all cases of officers availing themselves of the privilege of cunndativc leave of absence. 44, 271, I)ece7id)er^ 1890. 1597. Held that the Chief of Engineers was not a "department com- mander" within the meaning of A. R. 46 (see 56 of 1901) and was therefore without authority to grant leaves of absence to officers sta- tioned at Willets lV)int, N." Y. Card 15, Jid.y, 1891^. 1598. Held that to allow such student officers on duty at Fort Leav- enworth, Kansas, as have made satisfactory records to absent them- selves during the vacation after the June examinations at the end of 'A counter opinion of the Solicitor-General, in 16 Opins. At. Gen., 619, was not adopted l)y the Secretary of War. See par. 1.3:^7, A. R. of 1895 (1491 of 1901 ). ^Compare opinion Court of (.'laiius in Andrews/'. Xi^nited States, 15 Ot. Cls., 264. As to the li^ht to mWeAiije of an officer whose leave of absence is terminated l)y an order requiring him to return to his station, &c., see §§ 1669-1671, iwst. LICENSE. 435 the first year without having- such absences counted as regular leaves, would he inconsistent with the legislation of Congress on the subject of full pay leaves of absence and would amount to a substantial eva- sion of the law in any case where the granting of such a privilege would have the eU'ect of allowing full pay absence in excess of what the law authorizes. Card 2307, May^ 1896. LICENSE. 1599. A license is defined as a bare authority to do a certain act or series of acts upon the land of the licensor without possessing or acquiring an}^ estate therein.^ L, 619, August^ 1886. The Secretary of War may, by revocable license, permit a temporarj^ use, terminable at his discretion, as the public interests ma}" require, of U. S. lands •under his control, provided such license convevs no usufructuarj' interest in the land,*^ and such use does not conflict with the purpose •for which the land is held. XLIX, 490, JYovemher, 1885; Cards 285, Se2)temljer., 189Jf.; 2961, February^ 1897. The Secretary of War maj'' grant to a civilian, not a government emploj'ee, a revocable license to reside and do business on a military reservation. Cards 304, 315, Sejytembtr^ 189]^.. A formal acceptance of a license is not in general necessary: the grantee, by acting under it, sufiicienth' indicates its acceptance. 59, 418, May, 1893; Cards 155, December, 1891^; 639, March, 1895. 1600. An instrument termed a revocable license, but which in effect is a grant of an interest, is in excess of executive authority and inop- erative. Thus an executive permit to erect upon U. S. land a build- ing amounting to a permanent improvement to be used and occupied, or disposed of, by the licensee at his discretion as his property, is not a legitimate revocable license; is in fact (or, if valid, would be) irrevocable as conveying a usufructuary interest. 38, 49, January, 1890; 56, 366, J^oremher, 1892. So, a so-called revocable license to reside upon and cultivate certain land of the United States at a fixed rental named, held really a lease at will, conveying a usufructuary interest and not legal in the absence of authority from Congress. 54, 212. June, 1892. 1601. A license to go upon land of the United States will not author- ize the licensee to take pulilic propertv therefrom. JleJd that the Secretary of War was not empowered to grant a revoca])le license allowing the licensee to gather the fruit from trees growing upon ^Angell on Watercourses, 457. ^A license confers "no interest whatever in the land itself." 16 Opins. Ar. Ger , 212. See also 19 id., 628. 436 LICENSE. government land; 8ueh fruit being- public property disposable only by Congress. 56, 134, October, 1892. 1602. The Secretar}' of War is not empowered to g-rant a revocable license to use, any more than to lease, premises not belonging to the United States or under his control. 60, 350, July, 1893. Thus where the United States did not own certain land upon Avhich had been erected, under appropriation by Congress, certain structures for the improve- ment of navigation, as cribs and pile work — hdd that as it had no interest in the soil but onlv a right of conservation of such structures, it could not, through the Secretary of War, ^rant a revocable license to use the land for an}" purpose which would interfere with the owner's rights, without his concurrence. 40, 42, 232, Jfarcli and April, 1890. 1603. Where, under an appropriation for the improvement of the Hudson River, there had been constructed a dj^ke connecting the shore with an island — the United States having no property in the soil cov- ered by the dj^ke, but onl}^ a right of maintenance and conservation of the work — lield that a revocable license to build a dock across a part of the dyke could legally be granted to a party owning the land on which the dock was to be built; it fully appearing that such structure would not cause any injury to the dyke or interfere with the rights of any other person or with the navigation of the river. LI, 609, March, 1887. 1604. Congress has no power to grant or to provide for granting a license to establish and operate a ferry across navigable waters of the United States at a point within a State, or to prohibit the operation of a ferry at such point. This is a matter which comes within the police power of a State, and it has uniformly been held by the courts that the States did not surrender that power by the adoption of the Constitution or otherwise. But the Secretary of War may give a revocable license for the landing of a ferry (duly licensed by the proper local authority) at a pier of the United States, providing such landing may be made without injur}" to the pier and so as not to involve an exclusive use of any part of it. 58, 450, March, 1893. 1605. Upon an application by the City of Boston to the Secretary of War for a license to construct and maintain siphons for water pipes at Warren Bridge in the waters of Charles River, held that under the authority given him by the River and Harbor Act of 1888 to require the removal of obstructions to free navigation at bridges, the Secre- tary might properly grant such a license, as a form of assent to the construction as not likely to interfere with navigation. 29, 343, Jan- uciry., 1889. 1606. The City of Miles City, Montana, applied to the Secretary of War for permission to enter upon the Fort Keogh military reserva- LICENSE. 437 tion and make cuts for the purpose of .straightening- the channel of Tongue River, forming the boundar}- of the reservation, so as to pre- vent its encroaching upon the citv. The proposed work would prob- ably" throw 175 acres of the reservation to the opposite side of the new channel, thus resulting in a permanent change and perhaps in perma- nent damage to the reservation. IltJd that the Secretary of War would not be empowered to grant a license in such a case, and that Congress alone could authorize the use of the land and operations designed. D, 3, August, 1892. 1607. A revocable license to go upon a military reservation and use the land for a purpose not affecting the interests or convenience of the military authorities, is an assurance to the person that he will not be molested as a trespasser while his license remains unrevoked. When revoked, he may be required to remove his property without unrea- sonable delay. 50, 420, Decemher, 1891. Where certain cattle-men were permitted to erect a temporary fence on a military reservation and later the permission was withdrawn, held that the}" should be allowed to remove the materials. XLIX, 615, Decemher, 1886. 1608. Licenses to enter upon and use lands of the United States have generally been guarded with such conditions as to prevent any perma- nent injur V to government property. Held that a revocable license might be given to a farmer to use for irrigation the water flowing on a reservation and not needed for the purposes of the command, pro- vided its use by him involved no material damage to the land or other public property. XL VI, 5, January, 1882; D, 3, August, 1892. 1609. Where the track of a railroad company was located upon a military reservation by license or sufferance, the company having no right of way granted it by Congress, held that the company could be ejected by judicial proceedings and its property moved off' the reser- vation; but advised that a new location be designated, to better accom- modate the requirements of the command, and that the company be given notice to move its tracks to the designated location, for the occu- pation of which a revocable license maj" be given it by the Secretary of War. 42, 324, August, 1890; Card 169, August, 189 J^. 1610. A license does not justify any use of the property other than as specified in the grant. It is therefore not assignable. LV, 603, June^ 1888; Cards 039, Novemher, 189 J^; 1155, Decemher, 1895. And a trans- fer of it avoids the license. 42, 456, Septemher, 1890. Thus held that an assignment to another, ])y the holder of a license to erect a hotel on the military reservation of Fort Monroe, was legally inoperative and an a\oidance of the license. 44, 225, Decemher, 1890. 1611. Revocable licenses (other than those instanced in the foregoing paragraphs) for the temporary use or occupation of the soil of a mill- 438 LICENSE. tary reservation have not unfrequentl}^ been granted under proper regulations by the Secretary of War/ As, for example, a license to occupy the land for target practice by a gun club (D, 91, January^ 1893); for the landing of boats (A, 218, irarch, 1887; B, 343, March, 1889); for the landing of a submarine cable (A, 166, Decemher^ 1886; B, 172, March, 1888; 323, FSruary, 1889); or for use as a bathing beach (C, 296, Jime, 1891); to occupy vacant buildings (B, 136, 198, January and April, 1888; C, 84, January, 1889; 173, June, 1890); or unused defences such as a Martello tower (B, 49, July, 1887; C, 427, Ajyrll, 1892); to erect a temporar}^ building for telephone office (A, 249, Ifay, 1887; B, 231, June, 1888); for a store house (C, 123, 124, April, 1890); for refuge for fishermen (B, 354, April, 1889); for a church (B, 45, June, 1887; 416, June, 1889); for a schoolhouse (B, 45, Jtme, 1889); for a keeper of a life-saving station (Card d>VJ, Janu- ary, 1895); to put up a stock yard or shipping pens for cattle to be transported l)y railway (A, 123, July, 1886); to carry a road across a part of the land as a convenient continuation of a town street (C, 6, October, 1889); to lay a track for a tramway or temporary railway (A, 99, July, 1886; B, 22, June, 1887; 355, A2)ril, 1889; C, 213, Octo- her, 1890; D, 131, Fehruary, 1893); to extend, maintain and operate an electric railway across a reservation (Card 1155, April, 1895); to 1 Under date of Aug. 4, 1890 (19 Opins., 628), the Attorney General said: " It has been the practice for many years for the Secretary of War, and sometimes the President, * * * to grant revocable licenses to imlividuals to enter upon military reservations and prosecute undertakings there which may be beneficial to the military branch of the 2:)u1)lic service as well as advantageous to the licensees. "For many years a })artof the tracks of the Baltimore and Ohio Railroad Company was laid by a revocal)le license on a part of the land at Harper's Ferry used by the United States for a manufactory of arms. Under a similar license a part of the land belonging to the fort at Old Point Comfort was allowed to be used as a site for a hotel, and in 1864 President Lincoln gave a license of this kind to a railroad company to use a part of the government land at Sandy Hook, and in 1869 another license was granted to said company to use j^art of the same land ' so long as it may be consid- ered expedient and for the public interest by the Secretary of War, or other proper officer of the Government, in charge of the United States lands at Sandy Hook.' (Seel6,Opin.,212.) "In this case the license applied for [to construct an irrigating ditch] relates to a military reservation situated in an arid region, and therefore, in view of the advantage to Fort Seklen of the use of this water, and in view of the frequent exercise of a similar power by granting such licenses as occasions have arisen through so many years, it seems clear that such license may be granted, the same to be under well considered restrictions and revocable at the will and ])leasureof the Secretary of War." The practice above referred to appears to have since obtained, exi'ejit in the class of cases covered by the later opinions of the Attorney General of May 19, and July 7, 1897 (21 Opins., 537, 565). For a published list of the revocable licenses granted by the Secretary of War between Jan. 1, 1893, and Jan. 1, 1897, and of revocal)le leases granted during the same period under the act of July 28, 1892, see jniblic document (not numbered), described as follows: "Granting permits for the occupancy or uj^e of military reservations for non-military purposes (H. Res. 250,54th Congress, ."Second session, in the House of Representatives, FeV>. 8, 1897)." Permission to land ferries and to erect l)ridgeson military reservations and to drive cattle, sheep, or other stock animals across the same, is granted by the Secretary of War under sec. 6, of the act of Congress approved July 5, 1884. LICENSE. 439 a railway company to build spur tracks (Card 3221, May^ 1897); to erect poles and cany a line of wire for telegraph or telephone comuni- cation (A, 173, January^ 1887; C, 350, Octoher, 1891; D, 77, December, 1892)\ to carr}^ an electric wire across a government bridge (A, 198, 201. Mtrc/t, 1887; B, 132, January, 1888; C, Sd,Fch'uary, 1890); to lay underground pipes for water, oil, or gas (A, 106, 118, July, 1886; 211, March, 1887; B, 430, June, 1889; C, 481, July, 1892; D, 213, June, 1893; Cards 155, 316, Augmt and Sej)ternher, 189^); to con- struct an irrigating ditch (A, 94, 169, April and December, 1886; B, 76. Augmt, 1887; 475, August, 1889; C, 26, JVovember, 1889; 876, Dece/nher, 1891). 1612. If the United States acquires a military reservation subject to the public easement in a highway across the same and does not acquire exclusive jurisdiction over the reservation, the right to control and regulate the use of the public easement in such highway remains in the legislature of the State. ^ Where, in such a case, the reservation was in the State of New York, it was JiddXh^t the consent of the State highway authorities and of the United States as owner of the fee to the highway within the limits of the reservation would be necessary to authorize the construction of an electric railway or an electric light line on such highwav, the railway and line being under the laws of New York a burden on the fee additional to the easement for a high- wa}'. If the fee to the highway were owned by a private individual, the railway and line could be located thereon without his consent on payment of just compensation; but as the highwav was on a reserva- tion held by the United States for military purposes, there was no power in the State to authorize the appropriation of any part of such reservation without the consent of the United States. In the absence of statutory authority the Secretary of War could not give the con- sent of the United States so as to enlarge the easement to the high- way, or rather so as to impose a new easement on the fee, but he could permit the railway and line to be located on the highway under a license which would impose no new easement on the fee and would be revocable by him at any time: such license to be issued preferably after the parties appl3'ing for the same had obtained the necessary consent from the proper highway authorities of the State. Cards 124<». 1545, 2Iay'An^JuIy. 1895; 2143, March. 1890. 1613. Where a joint resolution of Congress authorized the Secretary of War to grant an army ar.d navy contractor at Fort Monroe "per- mission to rebuild"' at that post a store house ''upon such conditions and under such restrictions as the Secretary of War shall deem com- patible with the interests of the Government," it was heldthsit the reso- 'See Faust ;■. Pasy. Railway Co., 3 Phila., 164. 440 LICENSE. lution only authorized the Secretary of War to grant a license to build on and use lauds of the United States and did not authorize him to grant an interest in the same. So the license thus granted not being assignable, advised that in lieu of the approval of a proposed transfer thereof a revocable license be issued to the transferee. Card 639, Woveniber, 189Ji.. 1614. It is impracticable for Congress to provide by legislation for every case in which a license may be granted, because unforeseen neces- sities for permissions of various kinds, often needing immediate action, spring up, and these can only be met by an exercise of the power of the Executive. These permissions are not always granted h\ formal written licenses. They may not be reduced to writing at all, but may be entirely informal, oral permissions to do acts which would other- wise constitute trespasses. Such permissions are in effect and sub- stance revocable licenses, just as much as those expressed in a written instrument. Indeed, the great mass of licenses to do acts of various kinds on military reservations are informal permissions of this charac- ter. Whether it be to enjoy some continuous privilege or to do a single act, makes no difference. All are in effect revocable licenses, emanating from the same authority. And the only advantage of the revocable license b}- written instrument is that it is the most conven- ient evidence of the permission. Many acts are, however, such that it would be absurd to resort to written instruments for the purpose of granting permission to do them. They are simply orally authorized or silently permitted, the authority being the authority of the Presi- dent executed through the conmianding officer of the post. At every large post there are, no doubt, a number of such acts done daily by the authority of these unwritten permissions, or unwritten revocable licenses. The power of the President probabl}' does not extend to the granting of licenses for the doing of anything which would be an injury to the property, nor can he grant other than revocable permis- sions, but there appear to be no other restrictions. He can not grant licenses that are not revocable. The power is one to be exercised by the President at his discretion, subject only to the restrictions men- tioned, and of course to such other restrictions as may be imposed by or be the result of acts of Congress. The act of July 28, 1892, authorizing the Secrctarv of War to grant leases, seems to have been intended as an extension, certainly not as a restriction, of his power. It is inapplicable to the purposes for which revo- cable licenses are used. And the Gth section of the act of July 5th, 1884, "to provide for the disposal of abandoned and useless mili- tary reservations," authorizing the Secretary of War to permit the extension of roads across militarv reservations, the landing of ferries LICENSE. 441 and the erection of bridges thereon, and to permit cattle to be driven across them, was apparently intended to confer power on him to grant more permanent privileges than revocable licenses give. A license is a bare authority to do a certain act or series of acts upon the land of the licensor without possessing or acquiring any estate therein. The Judge-Advocate General's Office has always held that the Secretary of War ma}^, by revocable license permit a temporary use, terminable at his discretion, as the public interests may require, of United States lands under his control, provided such license conveys no usufructu- ary interest in the land, and such use does not conflict with the purpose for which the land is held. The word license, as applied to real prop- erty, imports an authority to do some act or series of acts upon the land of another. It passes no interest in the land itself and its only efl'ect is to legalize an act which in the absence of the license would constitute a trespass. It may be created by parol, although a writing defining the exact nature and scope of the license is preferable.^ In 1891, the Secretary of "War decided that militar}^ reservations and lands occupied b}^ the War Department are held and occupied for military purposes only, and that no licenses for their use or occupation would be given without authorit}- from Congress, unless such use or occupation would be of some benefit to the military service. (Circ. 12, A. G. O., 1891.) It will be noticed that this is merely the announce- ment of a policy, and not the denial of the existence of the power. And, as a matter of fact, the policy thus declared was not carried out. In practice it is fully recognized that the Secretar}^ of War may thus license any act which would not be an injury to the property nor con- flict with the purpose for which it is held. This is giving a reasonable application to the rule against the granting of usufructuary interests or permission to commit waste. So far as the "sectarian purpose" for wdiich a license may be required, is concerned, it is evident that such purpose does not afi'ect the power to grant the license but the policy of granting it only. In the absence of action by Congress, the exercise of the power rests in the discretion of the President, and the purpose can be no restriction on his discretion, except in so far that it must not be incompatible with, that is, an interference with or an obstruction to, the general use for which the land is held. Card 29()1. February, 1897. 1615. In an opinion dated Maj" 19, 1897, the Attorney General held with reference to the license for the construction of a Roman Catholic chapel on the West Point reservation, that the Secretar}' of War had no authority to grant it. He also held in an opinion, dated July 7, 1897, that the Secretary of War had no authority to grant permission ' Rice on Real Property, p. 505. 442 LINE OB^ DUTY. for the erection of a Bethel reading- room and libraiy within the mili- tary reservation on Ship Island, Miss/ By act of July 8, 1898 (30 Stat., 722), the Secretary of War was given authority to permit the erection of buildings for religious purposes on the West Point reser- vation, but no such authority has been given with reference to other military reservations. Advised tha.t under the opinions of the Attorney General above cited, the Secretar}^ of War was without authority to license the construction of a building for a Roman Catholic chapel on the Fort Hancock military reservation. Card 0960, August, 1899. Similarly advised with respect to an application for license to erect on the same reservation a building to be used exclusively for Union Protestant worship. Card 4974, Sej^temher, 1898. 1616. ILld that the Secretar}^ of War is without authority to license the commission of waste upon military reservations, or under the act of July 28, 1892, to lease them for a purpose which would amount to waste; but the rule here stated has not been strictly observed in prac- tice. Cards 2879, 2930, FSruary, 1897; 3619, Novemler, 1897; 4126, 21ay, 1898; 7900, April, 1900. LINE OF DUTY. 1617. The term employed in the Pension Laws — "in the line of duty" — is much more comprehensive than the term "on dut}"", as used in the 38th Article of War. Its application is not limited to a status of actual present performance of some specific military duty, but it relates to a condition under which military duty may l)e regularly performed in contradistinction to a condition inconsistent with the performance of any ordinary duty — such as the condition of being on leave of absence or of l)eing retired. These laws being beneficial in their character, the term is to be construed so as to advance the benefit rather than to restrict it.^ LI, 347, June, 1887. A soldier is not nec- essaril}' out of the line of duty when he is in confinement for a military oflence, since it is a part of his military duty to submit to such punish- ment. If pending such confinement he receives an injury which was in fact a casualty of the service not incurred by his own fault or neg- ligence, his claim foi* pension should not be prejudiced by the fact that he was in confinement under sentence of a court martial when the injury was received. XLI, 257, June, 1878. 1618. But the being "in the line of duty", is not inferable merely from the being in the service, but is an independent fact to be atfirma- tively proved. Thus where a soldier was killed l)y the accidental dis- '21 Opins. At. Gen., .537, 56.5. ^ See 1 Opins. At. Gen., 182; 7 id., 161. LINE OF DUTY. 448 charge of a carbine in the hands of another soldier with whom he was at the time engaged in rough play or scuffling, the soldier killed being armed w^ith a stone, held that the killing was not in the line of duty. To be in the line of duty it is not necessary that the soldier should, at the time of the injury, be engaged in the execution of a specific act of military dut}', but he must not be doing something quite unconnected with duty and inconsistent with his proper military function. 61, 188, August, 1893. 1619. Similarly held in regard to a soldier who was shot and phys- icalh" injured in barracks by the accidental discharge of a pistol, the personal property of a fellow-soldier, who was, at the time, manipu- lating and exhibiting the same with a view of making a sale of it to the other, in violation in fact of a post general order forbidding the use or production of arms other than those furnished by the Govern- inent. The injury in this case was not caused or incurred while in the legitimate performance of a military duty or service, or as a result, direct or indirect, of any such performance. It was connected in no manner with duty or service or with the military relation of the par- ties, but grew out of a purely private and personal transaction. 58, 10, Felrniary, 1893. 1620. It has uniformly been ruled, in the administration of the Pen- sion Laws, that a soldier absent from his command on sieli, furlough remained ""in the line of duty." So, in the case of a volunteer soldier who had been given a sick furlough for twenty days, and was disabled b}' the kick of a horse so that he could not return, Jidd that if the dis- ability was incurred before the expiration of his furlough, he was then "in the line of duty" within the meaning of the act of March 2, 1889, providing for the removal of the charge of desertion in certain cases, and the charge of desertion against him should be noted as erroneous. 44, 462, January, 1891. 1621. Sec. 4700, Rev. Sts., puts enlisted men "on veteran furlough with the organization to which they belong" upon the same footing as men on sick furlough. So, held that a volunteer soldier furloughed with the rest of the organization to which he belonged might also prop- erly be considered as ''in the line of duty", while absent from his command on such furlough, within the meaning of the act of March 2, 1889. ^1,A:A&, June. 1891. 1622. In a circular, dated May 11, 1893, from the Surgeon General's Office, the following rule, approved by the Secretary of War, is laid down: "It is just to assume that all diseases contracted or injuries received while an officer or soldier is in the military service of the United States occur in the line of duty unless the surgeon knows first that the dise^ise or injury existed before entering the service; second. 444 LINE OF DUTY. that it was contracted while absent from duty on furlough or other- wise; or, third, that it occurred in consequence of willful neglect or immoral conduct of the sick man himself." There appears, how- ever, to have been no rule laid down ])y the War Department with reference to injuries received through carelessness. In a case decided b}^ the Assistant Secretary of the Interior on July 24, 1890, it was held that gross carelessness by the soldier in handling his gun rendered his title to pension for an injury resulting from such carelessness ques- tionable on the ground of contributory negligence. In another case, decided April 11, 1891, the same authority held that a pistol shot wound, caused by the accidental discharge of the weapon while the soldier was engaged in cleaning the same for use in the performance of special service as a teamster in the Quartermaster's Department, being unattended by contributory negligence, was in the line of duty for pensionable purposes. The rule with respect to contributory negli- gence cannot however be applied in all its strictness in determining the question whether a soldier's injuries have been received in the line of duty, but it is safe to say that injuries are not so received when caused by the soldier's gross carelessness. Beyond this it is not safe to attempt to lay down an}^ rule, but best to leave each case to be deter- mined upon its own facts. Thus where a soldier, while in barracks preparing to clean his carbine, accidentally discharged it, inflicting a wound upon himself, it appearing that he had just previously" on the target range tired a number of shots and had in- some way left a car- tridge in the piece, that he had had, prior to his entry into the service a short time before, no experience in the handling of firearms and that the particular arm Was a new model of carbine recently issued; held that the facts did not fix upon the soldier that degree of carelessness which would require it to be held that he was not in the line of duty when the injury was received. Card 2474, August, 1896. 1623. The Interior Department ordinarily decides for itself whether, for pension purposes, a death or disability was incurred in the line of duty; but the War Department must also decide for itself the meaning of the phrase when applied to facts requiring its action, and in some instances diti'erent constructions l)y the two departments have resulted. Formerl}^ the expression 'Mine of duty" was more stricth' construed than latterly,^ but the earlier construction has not l>een adopted in practice. By section 4 of the act of March 3, 1865 (13 Stat., 488), it was provided, "that eveiy non-commissioned oflicer, private, or other person, who has been or shall hereafter be discharged from the army of the United States by reason of wounds received in l)attle, or skirmish, 11 Opin. At. Gen., 182; 7 id., 161, 162. LINE OF DUTY. 445 on picket, or iu action, or in the line of duty shall be entitled to receive the .same bounty as if he had served out his full term." And by an act approved April 12, 1866, it was declared, "that the true intent and meaning- of the words 'or in the line of duty', used in the fourth sec- tion of the act approved March 3, 1865, * * * requires that the benefit of the provision of said section shall be extended to an}'^ enlisted man or other person entitled by law to bounty who has been or may be discharged by reason of a wound received while actuall}" in service under militar}' orders, not at the time on furlough or leave of absence, nor engaged in any unlawful or unauthorized act or pursuit." For the purpose of the earlier legislation, this legislative construction is conclusive, but it is not necessarily so in determining the soldier's con- dition or military status in other cases; for example, as to his right of admission to the Soldiers Home. A further limitation has been in practice recognized, viz. , that the disability must not be the result of the unlawful or unauthorized act as a direct or contributory cause. ^ The principle as stated in the act of April 12, 1866, modified by the limitation just stated, is as accurate a general statement of the mean- ing in military administration of the expression "in the line of duty" as can be given. It is, however, subject to exceptions. Thus, a sol- dier may be on furlough, yet in the line of duty, as when en route to his station or when during his furlough he is, in compliance with orders, on his wa}' to a place to report his whereabouts. So, certain acts ma}' in a measure be contributory causes of disability and yet not to such a degree as to bring the case within the general rule, as when the disability is the result of negligence but the negligence is not of such a degree as to amount to culpable contributory negligence. So, a soldier in confinement or arrest is, in a restricted sense, not in the line of that kind of militarj^ duty for which he was enlisted, but in a general militar}' sense he is in the line of duty, or rather he is not taken out of the line of duty by the fact of his confinement. A disa- bility incurred while in military confinement or arrest is "in the line of duty," or not, according to the facts of the case. Thus, a military prisoner incurring a disability while aiding the guard in suppressing a mutiny incurs his disability in the line of duty; if he incurs it while engaging in the mutiny it would not be in the line of duty. If the disability is incurred while at work as a prisoner, it would be in the line of duty; and so too if the disabilit}^ were simply the result of the con- finement (for example, rheumatism contracted in confinement), and this notwithstanding that the confinement is the direct consequence of the soldier's unlawful act. Applying these principles to the case of a * See Circular, approved by the Secretary of War, from the Surgeon General's Office, dated May 11, 1893, quoted m preceding section. 446 LOSS OV RANK OR FILES. soldier who rejoined the army from absence in desertion, and subse- quently while en route to his station on board a government transport was killed ])y the explosion of the boilers, it was hel(? that his death occurred in the line of duty. Card 2658, October, 1896. 1624. A soldier while awaiting sentence of a general court martial was chopping wood under charge of the guard, when In' accident he inflicted a wound with the axe upon his left foot necessitating partial amputation thereof. On the da}^ following the accident the order pro- mulgating his sentence of dishonorable discharge was received at the post and thereupon executed. Subsequent to his discharge he applied for commutation under the laws relating to artificial limbs (Sees. 4787- 4791, Rev. Sts.,and the acts of August 15, 1876, and March 3, 1891). Held that he was still in the service when the accident occurred (see § 1153, ante)\ and further that he was in the line of duty at the time within the meaning of the statutes cited. Card 3063, April, 1897. 1625. By the established practice of the War Department a soldier on '"pass" is held not to be taken out of the line of dutj^ by that fact, and this it would appear includes the hunting pass. The fact that hunting is encouraged (par. 363 A. R.) is a very good reason for hold- ing that, in doing what he is encouraged to do, the soldier is not thereby taken out of the line of duty. It is so held by the Board of Commis- sioners of the Soldiers Home.' Card 3069, Apr!!, 1897. LOSS OF RANK OR FILES. 1626. Loss of, or reduction in, files or steps (/. 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 commissioned oflicer. Like disqualification, it belongs to the class of continuing punishments.^ ^ But the Interior Department has its own ruHngs as to what constitutes Hne of duty for pension purposes, and in the case of James E. Harrison, held, under date of December 22, 1893, that the claimant, having received permission to hunt for his own recreation, and while hunting having been shot in the hand by an accidental discharge of his gun, was not injured in the line of duty. 7 Dec. Interior Dept. See also Report of the Assistant Secretary of the Interior, 1896. (H. R. Doc. 5, p. 74, 2d session 54th Cong. ) ^See 12 Opins. At. Gen., 547. The effect of this punishment is to deprive the officer of such relative right of pro- motion, as well as right of command, and of i)recedence on c'ourts or boards and in selecting ({uarters, &c., as he would have had, had he remained at his original num- ber. Such effect continues unless the sentence, pending its execution, is remitted. This punishment has sometimes been remarked ui)on as an objectionable one, apparently mainly on account of the inequality of its effect upon other oHicers 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. (See G. C. M. O. 25, War Dept. 1873; do. 2, Dept. of Dakota, 1873.) AVlieie he is reduced to the foot of the list, this objection does notajiply; this form of the punishment, however, where the list is a long one, is extreme and severe; more severe, often, than suspension for a fixed term. LOSS OF RANK OR FILES. 447 XXI, 382, 3finj, 186G; LI, OTT, 2Rirch, 1SS7 : 41, ?.S0, July, 1890: 56, 434, DecenJjer, 1S92. 1627. Where a court martial convened by a department commander for the trial of an officer sentences the accused, upon conviction, to the punishment of a loss of tiles 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 conclusiveness. The code does not, as in the case of a sentence of dismissal, render a confirmation by the President essential to the execution of such a punishment; and the fact that the same involves a change in the Armj^ Register does not make requisite or proper a revision of the case at the War Department. All that is called for, upon the approval of such a sentence by the commander, is simph" to notify the Secretary of War thereof b}" forwarding a copy of the order promulgating such approval. The proceedings (or their substance), as affecting officers other than the accused, may then well be republished in orders from the Adjutant General's Office. XXXVI, 134, December, 1871,,; XXXVIl, 83, October, 1875; XLIII, 286, April, 1880. 1628. A second lieutenant was sentenced — ''to retain his present number on the lineal list of second lieutenants for three years". Held tliat this sentence necessarily deprived him of all right to promotion so long as it continued in force. Lieutenants junior to him may be advanced without any regard to him and precisely as if he were not on the list at all. The promotion of an officer in such a status would have the effect of a pardon. 47, 293, May, 1891. 1629. A lieutenant was sentenced — "to be reduced two files in regi- mental rank". As the regimental rank of a line officer is the basis of his rank in his arm and in the army at large, held that his reduction on the regimental list involved a corresponding reduction on the lists of lineal and relative rank. LV, 620, June, 1888. 1630. An officer, as the result of two successive trials by court- martial, stood sentenced to be reduced to the foot of the list of lieut. colonels of cavalry and to remain there without advancement for two years. Held that his status was equivalent to that of an officer sen- tenced to lose files for two years, and that his sentence was a continuing punishment, subject to be discontinued by pardon. LI, 677, March, 1887. And further held that such a sentence was a legal one, and that as the officer had no rank in the army independent of his rank in the cavalry arm, the former rank being incidental to and measured by the latter, his relative ami}' rank was necessarily affected by the sentence in the same manner as his lineal rank. 29, 487, January, 1889. 1631. A sentence of a first lieutenant — "to be reduced in rank so 448 MANSLAUGHTER. that his name .shall appear in the Arm}- Register next below the name of" a certain other lirst lieutenant of his regiment, l\dd not a punish- ment executed upon approval, so as to be beyond remission, but, like a sentence to lose files, a continuing punishment removable by pardon.^ 56, 434, I)tctmhei\ 1892. 163?. In 1874 an 'officer, then a first lieutenant, was sentenced "to be reduced in rank so that his name should thereafter be borne on the rolls of the army next after that of" a certain other first lieutenant of the same regiment. This ofiicer was promoted to a captaincy, May 10, 1888, and the ofiicer under sentence was similarly promoted, Aug- ust 20, 1889. Upon an application by the latter (in 1890) to have his sentence remitted, held that, by the operation of the first of these pro- motions, the sentence was rendered irrevocable. A remission or par- don would not at this time restore the ofiicer to the position he occupied prior to the sentence, nor divest the rights of others acquired by pro- motion during the pendency of his reduction. The sentence had indeed been fully executed and was therefore bej^ond the reach of the pardon- ing power. 41, 380, July, 1800. M. MANSLAUGHTER. 1633. That this crime, when its commission by an officer or soldier affects the discipline of the 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. In time of wai' it is made so cognizable, when committed by an officer or soldier under any circumstances, b}" Art. 58. 1634. 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 command- ing ofiicer followed them, found them at an ale-house, and was about to arre-st 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 detaining them, fired upon them while fleeing, with his pistol, and shot and killed one of them. Having ])een 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. il2 0pin9. At. Gen., .547; 17 iartment ai)par- •^ntly treated it as directory (see Circ. 21, A. G. O. 1899). It was, however, maui- festly intended to enjoin a complete abandonment of the practice referred ij in the text. See page 28, par, 4, edition of 1901. MEMBER OF COURT. 459 all the testimony has been introduced, and nothing remains except the finding and sentence, is believed to be without precedent. XLI, 525, March, 1879. 1665. If a member, absent during the whole of the original proceed- ings had in a trial, is in fact present during proceedings had on revi- sion to reconsider the sentence, the revised sentence is clearly illegal and should be declared void and set aside. Cards 4742, 4750. 4751, 4854, 4855, August, 1898. 1666. Where, in the course of a trial by court martial, a member of a court is served with a legal order in due form dismissing or discharg- ing him from the military service, or an official communication notif}"- ing him of the acceptance of his resignation, he becomes thereupon separated from the army and can no longer act upon the court; he should therefore at once withdraw therefrom, and the fact of his with- drawal,^ explained by a copy of the order, be entered upon the record. XI, 203, Decemher.^ 186J^. But where the term of service of a meml^er as an officer of volunteers expired pending a trial by the court, held that the member was not thereupon disqualified, but could legall}' con- tinue to act upon the court till actually discharged or nuistered out of the service.' XV, 111, March, 1865. 1667. While it is in general undesirable that a member of a military court should testify as a witness at a trial had before such court, unless perhaps his testimony relates to character merely, yet the fact that he is called upon to testify, while it does not affect the validity of the proceedings,^ does not operate 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 admissibilit}' of questions put to himself or of his answers to questions. XXVI, 216, Novemher, 1867. 1668. Where an officer, dettiiled as a member of a general court martial, w^as duly relieved bj^ order therefrom, but continued notwith- standing to sit upon the court during a trial, taking part in the find- ings and sentence, held that the sentence should properl}^ be set aside as null and void.* 41, 39, May, 1890. 1 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. But the receipt by a member, during the pro- ceedings of the court, of an appointment to a higher rank, or of other official notice of his promotion, can affect in no manner his competency to act upon the court. The fact of the promotion should indeed be noted in the record and the officer be thereafter designated by his new rank. ^In a casein G. C. M. 0. 104, Dept. of Kentucky, 1865, the proceedings were, properly, disa])proved because a member had remained and acted upon the trial after receiving official notice of his muster-out. ^Compare People v. Dohring, 59 N. York, 874. *See G. C. M. O. 20, Dept. of California, ISflO, published after the date of this ruling. 460 MILEAGE. MILEAGE. 1669. An officer on leave of absence, whose leave, before being com- pleted, is lerniinated l)v an order of competent authority requiring him to return at once to his station, is entitled to mileage for the return journey, upon duh^ complying with such order. XXXVl, 420, Aprils 1875. 1670. By the act of July 24, 1870, s. 2, "any officer" who "travels under orders" was entitled to a mileage allowance of "eight cents a mile for each mile actually traveled " b}' him under his order, provided he was not furnished transportation 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 from the Headquarters of the Army, placed on special duty in a bureau of the War Department, and, having 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 return to his station, and thereupon duh^ returned accordingly; — held that, in so returning, he was traveling "under orders" in the sense of the act, and was therefore entitled to mileage for the journey from Washington to such station." XXXIX, 359, Decemher, 1877. 1671. An officer, while on leave of absence, and a few da3^s before its expiration, was placed on duty, and was kept on such dut}' during about a month after the expiration of the leave as originallv granted, and was then ordered to the station of his compan}'. Held that such order did not cause him to revert to the status of being on leave, but gave him the status, on his compljang with it, of an officer " traveling on duty" and entitled to the mileage, &c., accorded b}^ the act of Feb- ruary 27, 1893. 58, 475, Ajrril, 1893. 1672. Where an officer was required by a competent order to travel from his proper station to another post, to attend his own trial by court martial, and transportation was not furnished him, — held that he was entitled to mileage for such journey, the purpose for which the same was ordered to be made not being material. XXXIV, 339, Jmie^ 1873. 1673. An officer was duly ordered to proceed, in command of a guard for insane soldiers, from his station in California to Washington, the ' See the Army Apiiropriation Act of May 26, 1900, for the latest provisions in the matter of mileage to oflBcers and contract surgeons. As noticeably new legislation, this act provides that "payment and settlement of milea accounts of officers shall be made according to distances c()m])uted over routes established and by mileage tables prepared by the Paymaster General of the Army under the direction of the Secretary of War." ^ Held otherwise, however, by the Court of Claims, in Barr v. United States, 14 Ct. Cls. 272. MILEAGE. 461 order directing in effect that transportation be furnished both ways for him and his command. At Washing-ton, while the guard— its service being performed — returned at once according to the original order, the officer was specialh^ authorized, b}' an order issued from the Headquarters of the Army, to dela}- his return for thirty da3's. Return- ing 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 journey and was thereupon paid the same accordingl3\ TIehl that there was no legal objection to the last order, and that the amount of mileage allowed thereby could not prop- erly or fairly be stopped at a subsequent date against the ofiicer's pay. XLTTI, 91, m>veml>e;\ 1S79. 1674. A regiment was ordered under date of September 1.5, 1894, to make a change of station, "the movement to commence October 10th." An officer on dut}' with the regiment obtained, on September 24th, a leave of absence for twenty days and rejoined at the new station about Octo- ber 14, 1894. Held that while he was equitably entitled to the amount which the Government would have paid for his transportation had he remained with his regiment, he did not perform the travel on duty without troops within the meaning of the law and was not, therefore, entitled to mileage.' Card 808, December, 1891^. 1675. Held thai an officer ordered from his station to witness the issue of annuity goods to Indians and to inspect beef cattle for the Indian service, having performed the travel without troops, was entitled to the mileage and cost of transportation authorized by the Army Appropriation Act of March 16, 1896; but held not so entitled where an oflScer duly detailed as an Indian agent performs travel under orders of the Interior Department on dut}" connected with the Indian Service. Card 2949, February, 1897. 1676. Paragraph 9.59, A. R., as amended by G. O. 62, A. G. O., of 1899 (1063 of 1901), authorizes payment of mileage over the shortest usually travelled route at the rate of eight cents per mile, to a reporter of a court martial and his assistants, while going from the place of employment to the place of holding the court, provided the latter place is more than ten miles from the former. Held, that the regulation does not authorize payment of mileage for the return journey. Card 7101, Sqdendhrr, 1899. ^When the station of an officei* is changed while he is on leave of absence, he will, on joining his new station, if not furnished with transportation in kind, be entitled to mileage (or actual expenses if for ocean travel) for the excess of distance, if any, from the place of receii)t of order to his new station, over the distance between that place and his old station. 7 Conij). Dec, 78. This is now incorporated in A. R. 1330. aa amended bvG. 0. 121, A. G. 0. 1900 (1483 of 1901). 462 MILITARY COMMISSION ORIGIN, ETC. MILITARY COMMISSION— ORIGIN, CONSTITUTION, PROCEDURE, &c. 1677. By a practice dating- from 1847/ and renewed and lirnih^ established during- the civil war.^ niilitar}^ commissions have become adopted as authorized tribunals in this country in time of war. They are simply criminal war-courts, resorted to for the reason that the jurisdiction of courts martial, creatures as the}^ are of statute, is restricted by law, and cannot be extended to include certain classes of offences (see § 1680, 2^^^^) which in war would go unpunished 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 powers have been added to by statute.* Their compe- tency' has been recognized not only in acts of Congress'* but in execu- tive proclamations,'' in rulings of the covirts." and in the opinions of iSeeMaj. Gen. Scott's G. O. 20, Hdqrs. of Army, Tampico, Feb. 19, 1847, repub- lished " with important additions," in G. 0. 190 and 287 of the same year. And see the following orders convening military commissions, issued by Gen. Scott: G. O. 81, 83, 121, 124, 147, 171, 194, 215, 239, 267, 270, 273, 292, 334, 335, 380, 392, Hdqrs. of Army, 1847; also do. 9 -id. 1848. Also the following issued ])y Gen. Taylor: G. O. 66, 106, 112, 121, of 1847; and the following issued bv Gen. Wool: G. O". 140, 179, 216, 463, 476, 514, of 1847. In this connection, note also the institution by Gen. Scott of " Coimcils of War " — summary courts for the ]iunishment of certain violations of the laws of war — as exhib- ited in G. O., 181, 184 and 372, Hdqrs. of Army, 1847, and do. 35 and 41 id. of 1848. ^ The flrt^t military commission of the civil war is believed to have been that con- vened by ]Maj. Gen. Fremont, by G. O. 118, Western Dept., St. Louis, Sept. 2, 1861. ^SeeG. 0. 100, War Dept., 1863, Sec. I, par. No. 13; do. 1, Dept. of the Missouri, 1862; do. 20, Hdqrs. of Army, 1847; United States r. Reiter, 4 Am. Law Reg. (N. S.) 5.34; State V. Stillman, 7 Coldw. 341; Hefferman v. Porter, 6 id., 697. And see also opin- ions of the Attorney General cited under this section in note 1, ]i. 463. *See act of ]\Iarch 3, 1863, c. 75, s. 30, declaring that, in time of war, &c., murder, manslaughter, robbery, larceny, and other specified crimes, when committed by persons in the military service, shall be punishable by sentence of court martial " or military commission," &c. — an enactment repeated, as to courts martial, in the 58th Article of War: Also, sec. 38 of the same act (repeated in Sec. 1343, Rev. Sts. ) mak- ing spies triable by general court martial "or military commission" and punishable with death. See, further, act of July 2, 1864, c. 215, s. 1, by which commanders of departments and commanding generals in the field were authorized to carry into exe- cution sentences imposed l)y military commission upon guerrillas; Also act of July 4, 1864, c. 253, sees. 6 and 8 (not now in force) making inspectors in the Quartermaster Department triable and punishal)lel)y sentence of court-martial or "military commis- sion," for fraud or neglect of duty, as also other employees and officers of that dei)art- ment for accepting bril)es from contractors, &c. Also the Reconstruction Act of March 2, 1867, c. 153, s. 3, by which commanders of military districts were author- ized to convene military commissions for the trial of certain offenders. See § 1690, JWKt. ^See the acts cited in last note, together with Sees. 1199, 1343 and 1344, Rev. Sts., as also th(! appropriation acts of July 24, 1876, Nov. 21, 1877, June IS, 1878, Jime 23, 1879, and ^Nlay 4, 1880, in which, among other items for the Pay Department, ap])ropriation is made "for comj)ensation for citizen clerks and witnesses attending upon courts-martial and military commissions." "See the proclamations of Sep't. 24, 1862, and April 2, 1866. ' Kv parte Vallandigham, 1 Wall., 243; In the matter of Martin, 45 Barb. 146; State V. Stillman, 7 Coldw. 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 LTnited States as a court niartial." It has been " recognized by the executive, legislative and judicial departments of the government of the United States." MILITARY COMMISSION ORIGIN, ETC. 463 the Attorneys General.^ During the civil war they were employed in several thousand cases; more recenth' the}" were resorted to under the " Reconstruction " Act of 1867;^ and still later one of these courts has been convened for the trial of Indians as offenders against the laws of war.^' 41, 12-18, May, 1890. 1678. Except in so far as to invest militar}- commissions in a few cases with a special jurisdiction and power of punishment,* the statute law has failed to deline their authority, nor has it made provision in regard to their constitution, composition or procedure. In conse- quence, the rules which apply in these particulars to general courts martial have almost uniformly been applied to militarv commissions. They have ordinarily been convened by the same officers as are author- ized b}" 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 proceed- ings have been similar and similarly recorded; and their sentences have been similarl}' passed upon and executed, I, 453,465, Dtcemhei\ 1862; II, 27, 83, 563, February to June, 1863; III, 428, August, 1873; V, 95, Octoher, 1863; VII, 556, April, 1861^; VIII, 111, March, 1861i.; XIII, 392, February, 1865; XXIX, 39, June, 1869. Their com- position has also been the same, except that the minimum of members has been fixed b}^ usage at tJirt-e. XV, 149, April, 1865. The}" have generally also been supplied with a judge advocate as a prosecuting officer. A militai'y commission constituted with less than three mem- bers, or which proceeded to trial with less than three members, or which was not attended by a judge advocate, would be contrary to precedent.' IX, 591, Septemler, 1861^; XI, 479, February, 1865; XIII, 286, January, 1865; XV, 204, May, 1865. 1679. In view of the analogy prevailing and sanctioned between these bodies and courts martial, held that military commissions would properly be sworn like general courts-martial (XI, 111, November, 186Ji)', 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, August, 1867)', and that the two-years limita- tion would properly be applied to prosecutions before them." IX, 657, September, 186]^.. ^See 5 Opins. At. Gen. 55; 11 id., 297; 12 id., 332; 13 id., 59; 14 id., 249. ''See § \m),'poHt. 'The ca.se of Modoc Indians tried by military commission in Julv 1873 (G. CM. 0. 32, War Dept. 1873). See 14 Opins. At. Gen. 249. *See statutes cited in notes to preceding section. *In the absence, however, of any statutory provision on the subject, a commission which departed from the general usage in any of these respects would not necessarily be held to be an illegal tribunal. *None of ihese features, however, are made essential by statute. 464 MILITARY COMMISSION JURISDICTION. MILITARY COMMISSION— JURISDICTION. 1680. The jurisdiction of the military commission is derived prima- rily and mainly from the Law of War: that special authority 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 occupation by our armies and while it remains under militar}^ government, or (2) in a locality, not within the enemy's countr}' or necessarily within the theatre of war, in which martial hno has been established by competent authorit3\'^ The two classes of offences are: I. Violations of the laws of war. II. Civil crimes, which, because the civil authority is superseded by the military and the civil courts are closed or their functions suspended, cannot be taken cognizance of b}^ the ordinary tribunals. In other words, the military commission, besides exercising under the laws of war, a jurisdiction of offences peculiar to war, may act also as a substitute, for the time, for the regular criminal judicature of the State or dis- trict. II, 242, April, 1863; III, 404, August, 1863; VII, 20, 418, Jan- uary and March. 1861^; VIII, 153, 529, Marcli and June, 186^; XX, 502, 3farch, 1866. 1681. 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, dur- ing the war, hefore the initiation of the military government or martial law, but not then brought to trial. XIX, 390, January, 1866. (But as to spies, see § 2351, ^^>.s'^^.) So held that an enemy, taken prisoner of war, was triable by a military commission for a violation of the laws of Avar committed before his capture.^ VIII, 529, June, 1864-. 1682. During the civil war a very great number and variety of offences against the laws and usages of war — charged either, gen- erally, as '"violation 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 ' The general orders issued during the civil war contain nearly one hundred and fifty cases of women tried by military commissions. ^See § 1639, ante. And note, in this connection. Chief Justice Chase's description of the jurisdiction exercised under mihtary government and martial law, as distin- guished from that conferred by the military law proper — in Ex parte Milligan, 4 Wallace, 142. •^ 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 proof should of course be clear that the act committed was as charged, (. e. was not a legitimate act of war. MILITARY COMMISSION JURISDICTION. 465 mostly by civilians) were as follows: Unauthorized trading or com- mercial intercourse with the eneni}^; unauthorized correspondence with the enemy; blockade running-; mail carrjdng across the lines; drawing a bill of exchange upon an enemy, or by an eneni}" upon a party in a northern city;^ dealing in, negotiating, or uttering Con- federate securities or money ;^ manufacturing arms, &c., for the enemy; furnishing to an enemy articles contraband of war; dealing in such articles in violation of military orders; publicly expressing hostility to the U. S. government or sympathy with the enemy; com- ing within the lines of the army from the enemy without authorit}^; violating a flag of truce; violation of an oath of allegiance, or of an amnesty oath; violation of parole b}^ a prisoner of war; aiding pris- oner of war to escape; unwarranted treatment of Federal prisoners of war; burning, destroying, or obstructing railroads, bridges, steam- boats, &c., used in militar}^ operations; cutting telegraph wires between military posts; recruiting for the enemjMvithin the Federal lines; engag- ing in ""guerrilla" or partisan warfare; assisting Federal soldiers to desert: resisting or obstructing an enrolment or draft; impeding enlist- ments; violating orders in regard to selling liquor to soldiers or other military orders of police in a district under military government; attempt without success to aid the enemy by transporting to him arti- cles contraband of war; conspiracy by two or more to violate the laws of war by destroying life or property in aid of the enemy. II, 144, April, 1863; III, 401, 589, 649, Augiist and Septeinher, 1863; IV, 320, JSTovemher, 1863; V, 36, September, 1863; 6^0, January, 186lf.; VI, 20, January, 1861^; VII, 413, March, 1861^,; VIII, 529, June, 186J^; IX, 149, 202, 225, 481, 524, 535, May to August, 186J^; X, 567, Mvemher, 1861^; XI, 473, 513, Fehruary and ^fard, 1865; XIII, 125, December, 1861^; 675, J^me, 1865; XVI, 446, Augmt, I860; XXI, 101, December, 1865. 280, March, 1866, etc. 1683. Of the ordinary crimes taken cognizance of under similar cir- cumstances by these tribunals, the most frequent were homicides, and, after these, robbery, aggravated assault and batterj% larceny, receiv- ing stolen property, rape, arson, l)urglary, riot, breach of the peace,, attempt to bribe public officers, embezzlement and misappropriation of public money or property, defrauding or attempting to defraud the United States, &c. VII, 418, March, 186^; VIII, 194, 529, April and June, 1861^; XIV, 40, January, 1865; XV, 281, May. 1865; XVIII, 525, January, 1866; XIX, " 319, 390, January, 1866; XXI, 225, February, 1866; XXII, 116, August, 1866; XXVII, 423, Decem- 'See Britton r. Butler, 9 Blatch., 457; Vrilliams v. :Mobile Sav. Bk., 2 Woods, 501; Woods *'. Wilder, 43 N. York, 1(>4; Lacv r. .Sutrarman, 12 Heiyk.,o54. 2 See Horn r. Lockhart, 17 Wallace, 580. 1(;;»06— 01 30 466 MILITARY COMMISSION JITRISDICTION, lei\ 1868; 522, Fehraarij, 1869; XXIX, 157, 233, Angmt, 1869; XXX. 3S0, 638, 3Iay and Septemler, 1870, etc. 1684. Not iinf requently the crime, as charged and found, was a com- bination of the two species of offences above indicated. As in the case of the alleged killing, by shooting or unwarrantably harsh treat- ment, of officers or soldiers, after they had surrendered, or while they were held in continement as prisoners of war; of which offences per- sons were in several cases during the war of the Rebellion convicted by military commissions under the charge of "murder, in violation of the laws of war." ^ VII, 360, MareJu 1861^; XVII, 455, and XIX. 221, Octoh'i\ I860; XX, 650, May, 1866. 1685. From the iurisdiction, however, of military commissions under the circumstances above indicated, are properly excepted such offences as are within the legal cognizance of the ordinary criminal courts, when, upon the establishing of military government or of the .status of martial law, such courts have been, by express designation or in fact, left in full operation 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 martial law (see § 1643, a7)te) ordinary criminal offences committed therein bj' civilians or military persons, of which there was not expressly vested by statute (as by the act of Mch. 3, 1863, c. 75, s. 30) a jurisdiction in militar}^ courts concurrent with that of the civil tribunals, were in gen- eral allowed to be taken cognizance of by the latter, the same being at no time seriously interrupted in the exercise of their judicial functions. 1686. 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 cannot be empowered to assume jurisdiction of a public offence, although the nation be still involved "in war. '~ IX, 657, 'tieptemher, 186J^; XII, 422, June, 1865; XIV, 382, April, 1865; XVI, 298, June, 1865; XXX, 34, July, 1869. A fortiori, where, at the date of th(? offence, there was, properly, no state of war in which the nation was involved with an enemy. Thus held, that a military commission could not legally l)e convened for the trial of Indians, for violations of the laws of war, on account of thefts, robberies, and murders committed by them upon incursions made into the State of Texas where said 'See G. C. M. O. 607, War Dept., 1S()5; do., 158, /V/., 1866. A more recent illuftratinn was the j)riiuMi)al offence of the Modoc IiKhanw (tried l)y military commission in -Inly, 187;^), which, as a treac.herons kilhng of an enemy during a truce, was charged as " munh'r in violation of the laws of war." ((J. C. M. O. 82, War Dejit., 1873. ) ^See the leading case of Ex purti' IMilligan, 4 Wallace, 1 ; also Milligan r. Ilovey, 3 Bissell, 13; In re Murphy, Woolworth, 143; Devlin v. United States, 12 Ct. Cls., 271; 12 0pins. At. Geu., 128. MILITARY COMMISSION JURISDICTION. 467 Indians (unlike the Modocs — see note to § 1684, ante) were mere raid- ers, with whose tribe, as such, the United States was not engaged in war, and whose crimes, therefore, were not QOVLimxit^AfiagrantehAlo} XXXVI, 221, Janmry, 1875. 1687. Where the State was not under martial law or military gov- ernment, the fact that the offence was committed by a prisoner of war at a prison camp (within the State) for the confinement of prisoners of war, and guarded b}' Federal troops, was held insufficient to give a military commission jurisdiction of the case. XV, 358, June, 1865. But Jield that the mere fact of the appointing by the Executive of a "provisional governor" for an insurrectionary State in June, 1865, prior to the date of the proclamation (of April 2, 1866) declaring the war at an end in that State, and while the territory of the same still remained in military occupation, did not operate to oust militarj^ com- missions of jurisdiction of criminal offences committed within the State." XVI, 415, July, 1865. 1688. It is a further restriction upon the jurisdiction of the military conmiission 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, 1863), its authorit}" cannot be extended to the trial of offences which are, speciffcally or in general terms, made cognizal)le and punishable by courts martial b}- the Articles of War oi" other statute. In repeated instances during the civil war the proceed- ings of militar}' commissions, in cases in which these tribunals had improperh' assumed jurisdiction of offences legally triable by courts martial only, were recommended by the Judge Advocate General to be disapproved. I, 468, 482, December, 1862; VII, 440, 486, A^ml, 1864; IX, 236, June, 1864; XV, 373, Ju7ie, 1865; XVI, 73, April, 1865; XIX, 63, October, 1865. 1689. As to the ^]iQc\dX statutm^y jurisdiction with which the militar}^ 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 provisions of the act of March 3, 1863, by which a juris- diction, concurrent with that of the court martial, is given to this tri- bunal in cases of spies, is the only one now in force, being embodied in Sec. 1343, Rev. Sts. 'As to the nature of the hostiUty which may properly bring Indians "witliin the descrii)tion of pulilic enemies," compare 13 Opins. At. Gen., 471. That a detached band of marauding Indians was not an "enemy" in tlie sense of the act of JNIch. 3, 1849 (Sec. 3483, Rev. Sts.), providing for the making good of damage sustained by the capture or destruction of certain property "by an enemy", was held by the Supreme Court in Stuart r. United States, 18 Wallace, 84. ^See Belding ;•. State, 25 Ark., 315. And compare 13 Opins. At. Gen., 65-6; Cole- man V. Tennessee, 7 Otto, 516. 468 MILITARY COMMISSION JURISDICTION. 1690. Under the latest of these acts, the " Reconstruction "' Act of March 3, 1867, in sec. 3 of which the commanders of the militar}^ dis- tricts constituted thereby were empowered, in their discretion, "to orgfanize 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 held by the Judge- Advocate General as follows: {a) That the military commissions convened under the act would properly be governed, as to their form of procedure, by the rules and forms governing military commissions under the laws of war (see § 1678, aiit<^, while, as to their jurisdiction and power of punishment, they would in general properly be regulated by the local statutes governing the courts for which they were substitutes. XXIX, 406, Noirinl>ei\ 1869. (l) That, being substitutes for the State criminal courts, they were authorized to take cognizance of ofi'ences committed (but not brought to trial) hefore the date of the act, equally with those committed after such date. XXV, 424, March, 1868; XXVI, 234, Novemher, 1867. (r) 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, 3Iarch, 1868. {(J) That commissions ordered under this act, being in lieu of the State tribunals, could not assume to take cognizance of a case within the jurisdiction of a court of the United States in operation in the dis- trict. XXVIII, 612, J/ay, 1869. {/') That sentences duly adjudged by commissions convened under this statute, and which had been duly and finally approved b}^ the com- petent authority (see sec. 4 of the statute) might legally be executed prior to the passage of the act admitting to representation in Con- gress the State in which the offence was committed; but that such sen- tences, not carried into effect (or of which the execution had not been entered upon) at that date, could not thereafter legally be enforced.^ And //cZ^/ generally, that all proceedings of military commissions which remained pending or incomplete at such date became thereupon ter- minated. XXVII, 89, 90, 93, July, 1868; XXVIII, 51, Ai((/u>osf. But no head of a department or executive official inferior to the Presi- dent can, of his own authority, make a reservation of pu])lic lands. The power is vested only in Congress and the President. United States v. Hare, 4 Sawyer, 653, 669. In this connection may be noted the ruling of Atty. Gen. Bates (10 Opins., 359) in opi)osition to that of Justice McLean of the Supreme Court (in United States!'. Tlie Railroad Bridge Co., 6 McLean, 517) , but apparently concurred in by Atty. Gen. Williams (14 Opins., 246), 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 autliority from Congress, to relinquisJi such reservation and restore the land reserved to the general body of the public lands. See, also, 2 Land. Dec. (Int. Dept.), 603, 606; 5 id., 632; 6 id., 19. - See 7 Opms. At. Gen., 574-5; also 14 id., 557. That it is "not open to the courts on a tjuestion of jurisdiction to inquire what may be the actual uses to which any por- tion of the reserve is temporarily put," see Benson v. U. S., 146 U. S., 331. 472 MILITARY RESERVATION. estal)li.shino- of such a reservation cannot affect the power of the State or Territorial authorities (according as it may l)e 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 serv- ice may be specially precluded or restricted, by law, as to military persons in general." Where indeed there has been a cession of exclu- sive jurisdiction over the land by the State to the United States, the question whether the State authorities may still serve process within the reservation on account of liabilities incurred or crimes committed outside of its limits, will depend upon the terms of the cession. XXXIX, 541, May, 1878. 1700. Held that an act of Congress granting a railroad company a rioht of way through "the public lands" of the United States, did not authorize it to enter and construct a track upon the soil of a military reservation, the same being no part of the "public lands'';^ and that such entry was therefore a trespass. XXXIX, 116, August, 1877. Similarly held where the acts granted rights of way through the Indian Territorj' and Indian reservations, lands and allotments. Cards 6840, Sejjtemher, 1899; 7572, February, 1900. 1701. Land which has been set apart as a portion of an Indian reser- vation under a treaty can not be occupied as a military reserve;* 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, 179, July, 1876. 1702. Held that the act of March 3, 1875, c. 151, "to protect orna- mental and other trees on government reservations and on lands pur- chased by the United States," &c., which makes penal the unlawful cutting or injuring of such trees, was clearh^ 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 nec- essary 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, May, 1876. ^ See opinion of Judge- Advocate General pn))lislied in G. O. 30, Hdqra. of Army, 1878; also § 673, mile. '' As by Sec. 1237, Rev. Sts., exemptinj; enlisted men from arrest for certain debts; or by the operation of the provisions of the 59th Article of War as to the form to be observed in making criminal arrests of niilitarv persons. And see §§ 739 and 740, anic. » Wilcox V. .Jackson, 13 Peters, 499, 513; 5 (jpins. At. (ien. 578; 6 id., (570; 7 id, 574. ^By Art. VI, par. 2, of the Constitntion "all treaties maile . . . under the authority of the United States" are declared to be "the sui)reme law of the land;" and I ndian reservations "have generally been made through the exercise of the treaty- making i)0\ver, and in fulfillment of treaty obligations." 14 Opins. At. Gen., 182. That land cannot be reserved or occu])ied for military purposes to the prejudice of a title previously vested in an individual or a corporation, see, further, 9 /(/., 339; 13 id., 4G9. MILITARY RESERVATION^, 473 1703. Ildd that the right to the "'free and open exploration and pur- chase'' of mineral lands, accorded to citizens, &c., by Sec. 2319, Rev. Sts., could not authorize an entrv for the purpose of prospecting for mines upon a military reservation once duh^ defined and established ])y the President; the mineral lands intended by the statute being clearly such as are included within the "public lands" of the United States. 1 XXXVIII, 596, il/ffy, i-977. 1704. 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 oft* water, needed for the use of the garrison, in order to irrigate the ground so cultivated, — advised that the commandant be instructed 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, Aiyr'd, 1879. 1705. In the absence of an}" statute directly or b}" necessary impli- cation extending the powers of the local government of the District of Columbia over the military reservation and post at the arsenal in Washington, held, that the health officer appointed by the Commis- sioners (constituting such government) would not be empowered of his own authority and without the consent of the military commander, to enter upon such reservation, and remove or abate a nuisance deemed by him to exist thereon. The effect of the legislation 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 chp-ge of certain specified officials. Even farther removed from such govern- ment is the reservation at the arsenal, the same being a military post commanded by the President through a military subordinate, and gov- erned b}' military orders and regulations. XLII, 270, 2L:(y. 1879. 1706. The President's power in the matter of militar}^ reservations is limited to the setting apart and declaring of the reservation; and, for the purpose of adding to, and modifying the boundaries of, the original reserved tract, a reservation ma}^ be re-declared by the Execu- tive. 39, 132, Fehruarij, 1890; 50, 108, Octolei\ 1891. But the Presi- dent cannot uu-reserve dul}^ reserved lands, either \ij revoking- the order of reservation or otherwise. 50, 108, supra. 1707. After lands have once been reserved for military purposes, the President, in the absence of authority from Congress, is not empowered to withdraw or restore them. By the authority indeed of the act of July 5, 1884, he may abandon a useless military reservation 'See authorities cited in note to § 1700, cnde. '■'As to the authoritv to remove tres])assers from miUtary reservations, see 3 Opins. At. Gen., 268; 9 id., i06, 476; G. O. 74, Hdqrs. of Army, 1869. 474 MILITARY RESERVATIOlSr. and turn the lands over to the Interior Department for disposition and sale. But he cannot re-reserve lands once thus turned over, they being- no longer a part of the public domain but lands in regard to which Congress has expressed a different will. Nor can he reserve public lands for use of a sovereignty other than the United States — as for the use of a State. 48, 10, June, 1891; Card 1839, Novemler, 1895, 1708. Where it was proposed to turn over to the Interior Depart- ment, under the act of July 5, 1884, a military reservation as "useless for military purposes,'' but subject to the provisions of a contract permitting a contractor to take therefrom 2,000 cords of w^ood, for a militar}' post, adiustd that the transfer be deferred until the contract was performed, the reservation not bein^ "useless for military pur- poses"' during the existence of the contract, and furthermore such contract might interfere with the sale of the land by the Interior Department. Card 54, July, 189Jf.. 1709. Land once duly reserved for a public purpose becomes sepa- rated from the mass of public lands. So Jield that a proclamation of the President, issued under an act of Congress, opening to settlement lands in Oklahoma Territory, could not embrace or affect land pre- viously duly reserved as a military timber reservation for the use of the post of Fort Reno. 31, 327, April, 1889. 1710. The power of the President, under the provision of the act of March 3, 1893, to " withhold from sale, and to grant for public use to municipal corporations in which the same is situated, all or any por- tion of an3^a])andoned militar}^ reservation not exceeding twenty acres in one place," extends onl}" to such abandoned military reservations or parts of abandoned military reservations as have lieen turned over by the Secretary of War to the Secretary of the Interior under the act of July 5, 1884. 58, 471, Ajjrll, 1893. 1711. The ownership and jurisdiction of the soil between high and low water mark on navigable waters within or bordering upon a State are vested in the State, not in the United States. Tide-lands l^elong- to the State only; the United States has no interest in the soil below high water mark other than such as may have been ceded b}' the State. ^ XLVII, 59«3, FJrraanj, 1886; 15, 452, Mwch, 1887. So, where a military reservation, within a State, fronted upon navigable waters of the I'nitcd States, at the mouth of the Columbia River, hJd that the militar}' autliorities could not, 1)}^ the removal of fishing nets or fish traps placed below^ high water mark, or otherwise, legally prevent or interfere with the exercise of the right of fishery as to scale or shell fish ^Pollard's Lessees r. Hagan, 3 Howard, 212; Goodtitle r. Kibbe, 9 uh, 477; Doe v. Beebe, 13 id., 25; 6 Opins. At. Gen., 172. But .see Navigation. MILITARY RESERVATION. 475 on the tide-lands; such right being common to all citizens except in so far as it may ]»o abridged by the State/ LII, i;^7, JfurcJi^ 1887. 1712. In the case of a Territory, however, the sovereign right to the whole soil is exclusively in the United States. Thus the reservation of an island in the tide-waters of a Territory includes not only its soil down to high-water mark but all its tide-lands also. XLVII, 596, Feb- n/a/'i/., 1886. But in a Territory, in the absence of special regulation of the subject by Congress, no executive authority can lawfully restrict the common-law righ't of piscary of the inhabitants (including the tak- ing of shell-tish) in the tide-waters of the Territory. So, the com- mander of a reserved military post, fronting upon navigable water of a Territory, is not empowered to remove from such tide-waters the seines or traps of fishermen; though, if the public interests require it, he may forbid or restrict the use of the shore above high-water mark for the hauling of seines or landing of tish. 15, 452, March, 1887. 1713. Squatters and other trespassers and intruders may and should be expelled, by military force if necessary, from a military reserva- tion.' XLIX, 208, July, 1885; L, 314, May, 1886. But such persons when they have been suffered to own and occupy buildings on a reser- vation should be allowed reasonable time to remove them. If not removed after due notice the same should be removed by the military. . Material abandoned on a reservation by a trespasser, on vacating, may lawfully be utilized by the commander for completing roads, walks, &c. L, 273, 378, 31ay and June, 1886. Squatters on U. S. reservations (timbered) may also be forced therefrom by criminal proceedings had under Sec. 5388, Rev. Sts., or ejected by civil action. Card 138, ^SV^- temher, 189 If.. 1714. Where squatters have made any considerable improvements upon a reservation, and their value has been duly estimated — as by a board constituted bj^ the department commander and presenting in its report all the evidence on the subject, — an award by the Secretary of War, acquiesced in by the claimant, may be sued upon in the Court of Claims, which (in the absence of evidence of fraud or mistake) will accept such award as conclusive.' 17, 265, June, 1887. 1715. The cutting of timber on a military reservation is an offence against the United States, made punishable by Sec. 5388, Rev. Sts. (amended by the act of June 4, 1888), and by the act of March 3, 1875, c. 151. So, grass cut on a reservation and removed as hay would be ^ Washburn, Easements and Servitudes, 410; Martin v. Waddell, 16 Peters, 367; Smith r. Maryland, 18 Howard, 71; McCready r. Virginia, 94 U. S., 391; Lay v. King, 5 Day, 72; Arnold '•. Mundy, 1 Halst., 1; Parker r. Cutler, &c., Co., 20 Maine, 353; Moulton V. Libbey, 37 id., 472; Weston v. Sampson, 8 Cash., 347. 'See(;. O. 62 of 1869. ^Aladdux r. U. S., 20 Ct. Cls., 193, 199. 470 MTLITAKV RESERVATION. ])ei\sonal proport}' of which the asportution would l)e hirceny under the act of March 3, 1875, c. 144. And per.son.s coming upon a military reservation for the purpose of cuttino- wood or grass or to plougli u}) the soil, or commit other trespass, may be removed as intruders, and the post commander should not hesitate to resort to military force if necessary for the purpose. And he may of course prevent such tres- passers from carrjMng oH' with them any property of the United States. 64, 270, 303, 21arch and Ajyrll, ISOJ^; Card 3315, Jane, 1897. 1716. There is no statute which would authorfze the sale of timber on military reservations, and in the a])sence of such a statute the Sec- retary of War cannot authorize such sale. Card 8141, Jfa//, 1900. 1717. The general principle of the authority to remove trespai^ers, their structui'es and property, from land of the United States embraced in a military reservation, //(A/ specially applicable Avhere the intrusion was for an injurious purpose, as where the object was to lay a sewer intended to discharge into a main sewer constructed by the United States upon and for the use of its own premises. In this instance, as the trespass was conmiitted ])y the authorities of a numicipality, a(h'!t<('(1 that reasona))l(^ notice be given them to remove their property before resorting to military force for the purpose, and meantime that precautions be taken to prevent a connection between the proposed sewer and the sewers und«M- tlu> control of the United States. 65,6, JA///, 18!)',. 1718. Ill Id that a butcher who Avas under contract with the United States to supply btn^f to tiie post of Fort Brown, Texas, should not be permitted to sell beef on the reservation to citizens of the town, to the prejudice of the butchers doing business there. Such a party is not a post-trader, and Congress, in ^iroviding spccitically for post-traders, would seem to have considered legislation necessary to authorize an individual to engage in trade or traffic at a military post. 30, 475, JA//v•/^ 1SS9. 1719. The State of Ktmsas having surrendered to the United States its jurisdiction over the military reservations of Forts Leavenworth and Riley by an act of its legislature of Fe])ruary 23, 1S72. which was earlier in date than the prohibition laws of the State (having their origin in the Constitution adopted November 2, 1880), — held that such laws did not extend over and could not be a})plied to those reserva- tions. 39, 17, Fehnuiri/, 1S9U. 1720. To legalize the use of a pul)lic road (State, county, or Terri- torial) across a corner of a military reservation, lu/el as follows: (1.) 'I'lie Secretai'v of ^^'ar may. under the act of rhily 5. 1884. s. (i. per- mit the e\t(Mtsion of such a road across a military r(>ser\ation " when- cN'cr. ill his jiulgineiit. the sanu> can be done without injury to the MILITIA. 477 reservation or inconvenience to the militar}^ forces stationed thereon." (2.) Or he can abandon to the Secretary of the Interior, under the same act, the strip of the reservation to be traversed by the road, and the latter official can then authorize the road under Sec. 2477, Rev. Sts., by which "rights of way for the construction of highways are granted over public lands not reserved for public uses." 43, 415, Novemher^ 1890. 1721. Where the United States purchased land for a militarv reser- vation, through which there was a public highway, and exclusive juris- diction over the reservation was duly ceded to the United States, it was held that the title was subject to the easement of the public to the use of the highwa}^; that the right to regulate and dispose of this ease- ment was in the United States to be exercised by Congress; and that it could not be legally exercised by the militaiy authorities, (krd 3565, October, 1897. 1722. In locating Fort Missoula, Montana, an error of survey was made by which the post became established upon a section which had been granted to the State b}^ the enabling act as school land, instead of upon the contiguous section which had been reserved for military purposes. Becommended., as the preferable mode of rectifying the error, that legislation of Congress be obtained granting to the State for school land the section omitted to be occupied, and. upon its acceptance b}' the State, that the legislature then cede to the United States exclusive jurisdiction over the section actually occupied b}' the post. 36, 402, November, 1889; 44, 299, December, 1890. MILITIA. 1723. The manner of the calling out of the militia by the President under the act of 1795 (Sec. 1642, Rev. Sts.), is indicated \yy the Supreme Court in the leading case of Houston 'v. Moore, ^ where it is observed that, "the President's orders may be given to the chief executive magistrate of the State, or to any militia officer he may think proper." The call would ordinarily be addressed to the gov- ernor, who, in most of the States, is made commander-in-chief of the active militia of the State. A further form indeed of calling out the militia, viz.. by a conscription, was authorized during the civil war by the act of July 17, 1862. 51, 325, January, 1892. 1724. The President has no original authority over the militia by right of his office. He can only call them out when Congress provides for his doing so as the agent of the United States for such purpose. 15 Wheaton, 15 (1820). 478 MILITIA. "When tlio call is c'()ini)li(>(l witii, the militia IxH'omos national militia, and he lu'comcs tiu'ir conunaiul(M--in-chi(>l'. The law *;"ovorning his exercise of powei- in calling out is found in Sees. 1(342, 5297, 5298 and 5i>!>!t. Kev. Sts. 51, 1l>0. December. 1S91. 1725. The calling forth of the militia into the U. 8. service is an admiiiistrati\ e func-tion. a ministerial, act, in which the Secretary of AVai" may issue the ni^cessary orders "as the organ of the. Executive; and his act is the act of the l*r(\sident. 61, 5;'), Aiujnst. IS'Jo. 1726. It is not essential for a militia organization that there should be a formal nmstin'-in, to bring it into the actual service of the Ignited States. The provision of the act of 1S(>2, relating to the nuister-in of militia, is dircn-tory oidy. 38, 127. Janudrt/. 1H90. 1727. The President, in calling out a force of militia, authorized the governor of a State to designate thi> particular militia of that State to be included in the call, and the governor thereupon designated a certain regiment, and formally acceptiHi its service. . ITehl that in so doing he acted as the agent of the President, and that his acceptance was in law an acceptance by the President, and was equivalent to a nuister-inof the regiment. 64, 483. JA///. 1894; Card ii^O'd^ December, is!)i;. 1728. In 18IU). an Indian agent in Indiana applied for assistance, in an emergency, to a militia colonel who furnished three companies of his reginnMit, which were emploved and rendered faithful service for seven days in assisting to execute the laws of th(> Pnited States. U])on a chiim now (1893) made for compensation for such service, held that the same could not legally be allowed by the Secretary of "War, who could have i\o authority to recognize, as in the U. S. service, militia who had not been (ailed out by the President or by his direc- tion; and that such claim could be entertained by Congress alone. 60, 4 7:.. July, 1S9-J. 1729. In the exercise of its constitutional power "to provide for calling forth the militia." and "to pr()vide for organizing" the same, t*cc.. Congress has made no distinction between any diti'erent portions of this force, or recognized any such portion as •• national guard." The law relating to the subject— Rev. Sts., Title X\T, Sees. 1(525, U>42, c^cc. — contemplates but a single integral body as constituting the militia and as liable to be called out. Under the existing law. the "national guard" of a State cannot legally be called out as such. Upon a call, the governor may indeed order them out, as being organ- ized and available, so far as they will go to make up the nund)er of the militia required. 62, 371, Murch, 1892. 1730. 'I'he r. S. statutes take no notice of "national guard" as such. If calleil out, it is not as "national u'uard" but as militia: and when MILITIA. 479 SO called forth or included in a call, it must be governed l)y the exist- ing laws providing for the organization, discipline, &c., of the militia. 51, 277, Januimj, 1892. 1731. "National guard'' is a term by which several of the States have, by law, designated a part of their militia, usually the organized and trained part. The President can, under the Constitution and laws of the United States, only call into the service of the United States the militia of the States. He can therefore so call a particular national guard only as, and because it is, a part or all of the militia of some one of the States. Card 2482, July, 1896. 1732. Under its constitutional power to provide for calling forth the militia. Congress has h\ Sec. 1042, Rev. Sts., provided for calling it into the service of the United States. The States having surrendered this power to Congress, and Congress having thus exercised it, the matter cannot be limited or in any way modified by a State law. There may, however, be a legitimate field for State legislation in connection with this subject. That is, there may be State legislation in aid of the United States laws and the power of the President in the premises. But in view of the fact that by Sec. 1649, Rev. Sts., it is made a pun- ishable offence, for a militia man to fail to obey the orders of the President when he calls out the militia, such legislation is apparently unnecessary. Card 2482, JiiJy, 1896. 1733. There is no existing statute of the United States authorizing the President to call out the militia for drill merely. The Constitu- tion, in empowering Congress "to provide for organizing, arming and disciplining the militia," leaves their training to the States, and it is at least doubtful whether an act of Congress regulating the drill of the militia would be constitutional. 51, 277, January, 1892. 1734. The "" national guard " so-called, being merely militia, cannot (where not called forth) be ''supported" or '"maintained" by Con- gress, which is authorized b}' the Constitution to "support" and ""maintain"" the army and navy only. So, officers of the national guard can not be cominisxfoned Iw the President without a violation of the Constitution, which "reserves the appointment of militia officers to the States respectively." 49, 292, Sej^temher, 1891. 1735. Sec. 1658, Rev. Sts., prescribes that, "courts martial for the trial of militia shall be composed of militia officers only." Held th'At the enactment applied also in principle to courts of inquiry convened in the militia, and that officers of the army could not, for purposes of instruction or assistance, legally be detailed to be associated with militia officers as members of such courts. 60, 168, June., 1893. 1736. Where militia are called out and mustered into actual service, the staff' officers of their conmiandino- general can not be considered as 480 MILITIA. in any sense appointed by the Secretary of War or commissioned by the President. Nor are they given the corresponding rank of staff officers of the regular army, bat their rank remains the same as it was before in the militia under the State laws. 44, 478, January., 1891. 1737. Where arms were issued to a State for the use of its militia under the old law of 1808 to 1855, incorporated in Sees. 1H61 and 1667, Rev. Sts., and the State was not indebted to the United States under that law, Juki that such law made no provision for accountability in regard to such arms, and that the new law on the subject of the issue of such arms, the act of February 12, 1887, s. 4, in requiring the inspection, sale, &c., of unserviceable arms, did not apply to arms issued under the old law, as to which or as to the proceeds of which if sold, the United States had no power of disposition. LII, 659, Octohei; 1887. 1738. Under Sec. 1661, Rev. Sts., as amended by the act of Feb- ruary 12, 1887, the Secretary of War, for the United States, issues to the militia of the various States and Territories, for use, arms and other property belonging to the United States and which continue to be the property of the United States while ])eing so used. This prop- erty is purchased or manufactured in the same manner as are the stores for the regular army, but out of an annual appropriation of 8400,000 made for the purpose of providing arms, etc., "for issue to the militia.-" So far as the militia organizations of the State are concerned their i-ight to receive a portion of the property purchased out of the $400,000 appropriated for a particular 3'ear depends on whether their respective States are maintaining a given number of organized militia at that time. That is, if a State has 100 organized militia for each senator and each representative it has in the Congress of the United States, its militia is entitled to receive a portion of the b&nefits of the appropriation for that 3'ear; and if it has not that manv organized militia, its militia is not entitled to anything out of the appropria- tion for that year. Aside from this the number of organized militia makes no difference at all. The particular ainoujd that they may receive does not depend on the number of militia, but on the num- ber of senators and representatives their respective States are entitled to. None of this applies, however, to the militia of the Territories. So far as such militia is concerned the whole matter is left to the President. He can allot monev for militia of the Territories before the militia is organized, or without its being organized. In fact the law simply is that there shall be given to the militia of the respective Territories "such portion" of the benefits of the appropriation "as the President may prescribe." And the portion to be pi-escribt'd by him in eacli case is not controlled bv the numl)er of inhabitants in MILITIA. 481 the Territory, or by the number of militia — organized or unorgan- ized — or anything else of that kind. Card 110, August, JS04-. 1739. Jleld, that the status of Hawaii is that of a Territory of the United States within the meaning of the Militia Act of February 12, 1887 (21 Stats., 101), which provides that of the annual appropriation for the militia (act of June 6, 1900, 31 Stats., 662), such proportion thereof and under such regulations as the President may prescribe shall be apportioned to the Territories and District of Columbia. Card 9176, Octohtr, 1900. 1740. Held that sec. 4 of the act of February 12, 1887 (24 Stats. , 402), was intended to provide a complete system for the disposition of unserviceable property issued to the militia, and that to add to the system thus prescribed an inspection b}^ officers of the United States Army would be requiring something which the law did not intend should be required. Card 3787, Felrruary, 1898. 1741. Sec. 1 of the act of February 12, 1887 (24 Stats., 401), as amended and re-enacted by the act of June 6, 1900, authorizes an annual appropriation of one million dollars "for the purpose of providing arms, ordnance stores, quartermaster stores and camp equipage for issue to the militia." TIeJd that cavalry sketching cases, emergency rations and hospital supplies, not being included in any of the classes of articles mentioned in this statute, could not be furnished from the appropriation provided. Card 8781, August, 1900. ! 1742. Members of the organized militia of a State, who have entered the volunteer army of the United States, and thus become U. S. sol- diers, should not be included, while in such status, in the report made by the State of " its regularly enlisted organized and uniformed active militia " under the act of 1887 (24 Stats. , 401). None should be reported under this act who are not at the time in the service of the State under such circumstances that they may be called out by it for actual duty. Card 5455, Decemler, 1898. 1743. While the act of Congress of May 8th, 1792, provided that "every able-bodied male citizen of the respective States resident therein who is of the age of eighteen years and under the age of forty- five years shall be enrolled in the militia," it has been the practice since early in the century to treat the organized Territories as States in respect to this matter. Their governors have often been called on, the same as governors of States, to furnish militia for the United States service, which they have done. And when militia of Territo- ries have been called by the President into the United States service they have been treated as "militia of the States" within the meaning of that term as used in the Constitution and statutes. So where, under 16906—01 31 482 MILITIA. the call of the President in 1861, for seventy -five thousand militia, a requisition was made upon the governor of the Territorj^ of New Mexico by the United States military commander of the district of New Mexico for a certain number of militia, and several organizations were furnished and mustered into the service of the United States in response to the requisition, it was held that the militia so mustered in were duly in the service of the United States. Cards 1051, 1071, May and June^ ISOo. 1744. Many militia organizations have been paid by the United States under acts of Congress which provided for the payment of such only of the militia as served in Indian wars in response to calls from the President. Where money so appropriated has been paid to a par- ticular militia organization, a decision was probably made by some one at the time that the organization was in the service of the United States; otherwise the payment would not have been made. Such pa}'- ment is a strong indication of what the understanding of the Govern- ment authorities was at the time. If it is the only evidence that can be found as to what that understanding was and the records of the organization show nothing either way on the main question, /. e., whether the organization was in the service of the State or of the United States, it alone should be held sufficient to decide the matter. If, however, there is other evidence, the payment referred to should be considered with it in determining whether the organization was in fact in the service of the United States or of the State or Territor3\ These conclusions do not apply in the case of "volunteers" as the term is commonly used (see Volunteers), but care should be taken not to treat a militia organization as volunteers because it bore the name of volunteers at the time. Organizations have some times borne the name of volunteers when the facts and circumstances connected with their organization and service showed clearly that they were only State militia called into the service of the United States. Card 1377, May, ISH. 1745. Where it appeared that certain organizations of Alabama Ter- ritory militia of 1817-1818 were not formally mustered into the service of the United States but had in fact served in the Seminole war and had been mustered out of the service of the United States by officers of the regular ami}", being paid when mustered out by the United States from money appropriated in the army appropriation acts, and were fully recognized at the time, by both the territorial and national authorities as ])eing in the military service of the United States, hdd that such recognition should at this time be deemed binding upon the United States. Card 232, March, 1896. 1746. State militia organizations may be made a part of the :irmy of MILITIA. 483 the United States under that provision of the Constitution which pro- vides for "calling forth the militia to execute the laws of the Union, suppress insurrection and repel invasion". These organizations are usuall}' formed (either by volunteer engagement on the part of the men or b}' conscription by the State authorities) to serve the State, but the President can call them from the service of the State into the service of the United States, and sometimes these State organizations are formed, in the manner stated above, with the purpose in view of their transfer to the service of the United States (under a call of the President) as soon as formed. But under all these circumstances they retain their character of State militia and j^et are at the same time (while in the active service of the United States under a call of the President) a part of the army of the United States. For general pur- poses they are considered as belonging to that branch of the United States army known as the "volunteer arm}'", and this notwithstand- ing the men ma}" have been conscripted and forced into the State militia organization by the State (to serve the State or to be transferred into the service of the United States) and then called into the service of the United States against their will and over their protest. Card 1301, 2fai/, 1895. 1747. The act of March 2, 1895, authorizes the Secretary of War to furnish to the governor of an}" State, at the expense of the State, a transcript of the history of any regiment or company "of his State." Held that this act applies to State troops organized, officered, etc., by the States to enter as volunteers into the service of the United States, and also to the organized militia of the States that were mustered into the service of the United States, but not to those organizations that were distinctively United States organizations and with which the States had nothing to do. The fact that the United States necessarily went into the States to recruit and raise the latter organizations does not make them regiments and companies of the State within the mean- ing of the act cited. Card 3894, Fehruary, 1S98. 1748. There is no law of the United States which would prevent a State from arming its militia, out of an appropriation made by it, with any arm it may select. Card 2511, August, 1896. 1749. Under Sees. 1642, 5298, Rev. Sts. , the President has the power to call the militia from one State into another to execute the laws of the Union, suppress insurrections, and repel invasions. Card 7574, June, 1900. But according to the weight of authority, he cannot con- stitutionally order militia "called into the service of the United States" out of the country to invade a foreign country.^ Cards 3937, 4073, March and April., 1898. ^Ordronaux Constitutional Legislation 501; Kneedler v. Lane, 45 Penn., 238; Mar- tin v. Mott, 12 Wheat., 19; Houston r. Moore, 5 id., 1. 484 MUSTER-IN. MURDER.^ 1750. The taking of the life of a prisoner of war, when not concert- ing an escnpe or engaging in any violence or breach of discipline ]"us- tif ying such an extreme measure, is as fully murder, as could be any homicide committed with deliberate malice in time of peace. ^ VII, 360, Ifarch, 186.'^. MUSTER-IN. 1751. The record of a formal muster-in is an official record, duly made by the proper officers pursuant to law, of an official act performed vinder the law. It is therefore, in the absence of fraud, conclusiye evi- dence of the facts recorded, and no other evidence is admissible to show a different state of facts. Great uncertainty would ensue could such records be set aside by parol or other evidence. 60, 394, Juhj^ 1893. 1752. A muster-in is not necessarily formal. A mere enrolment is not a muster-in, and does not place the party in the military service. But taking up a man's name upon the rolls and accepting his services as a soldier is a constructive muster-in.^ 41, 136, June., 1890; Card 186, August, 1891^. 1753. In March, 1864, a company which had been enrolled as a com- pany of Tennessee volunteer cavahy, having, under orders, rendez- vouzed at Fort Pillow, was given permission by the department commander to go to Memphis, Tenn., to be mustered into the United States service. But owing to the fact that Fort Pillow was threatened by the enemy, at that time, the company was ordered to remain and assist in its defence and was thus prevented from taking advantage of ^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 malice aforethought either express or implied." In many of the States, two or more degrees of murder are now distinguished by the statute law; murder in the f]rst degree^generally defined as a killing accompanied by express malice, or a deliberate unlawful intent to cause the death of the particular person killed — being ordinarily alone made atp'dal. Manslaughter, at common law, is distinguished from murder by the absence of malice aforethought. The State statutes have generally constituted degrees of manslaughter, also, a different measure of ])unishment being assigned to each degree. The laws of the United States, though prescribing different punishments for manslaughter under different circumstances, recognize no discrimi- nations of grades in either manslaughter or murder. See 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 v. Webster, 5 Cush.304; G. O. 23, Dept. of Cali- fornia, 1865 (Remarks of Maj. Gen. McDowell). "Murder, originally," says Fos- ter (p. 302, citing Bracton "de murdro"),was "an insiilious secret assassination; ocrvlUi (jccii^io, iiiillo scientc atit vldciite." Now, secrecy in the commission of the act is significant only as evidence of legal malice. 'While it is lawful to kill an enemy "in the heat and exercise of war," yet "to kill such an enemy after lie has laid down his arms, and especially when he is con- fined in prison, is murder." State v. (4ut, 13 ]\Iiiin., 341. ^That it is not necessary to formally muster-in drafted men or their substitutes, see §§ 1229 and 1231, arife. As to commencement of service of volunteer officers, see opinion of Atty. Gen., dated Feb^ 27, 1901. MUSTER-OUT. 485 the permission given it. A request was then made that a mustering officer be sent to Fort Pillow to muster in the company, but before one could arrive the fort was captured. Onh^ a few of this company escaped death and they were taken away as prisoners of war. These .survivors it appears were ''changed" on the records to another com- pany of another regiment of Tennessee cavalry, and there remained until tinal muster-out. Held that the foregoing facts constitute a strik- ing instance of an actual entrance into the military service of the United States in the absence of and without a formal muster-in, and that the company should be viewed as having been regularly in such service at the time it was broken up. Card 1067, April ^ 1895. 1754. All the records of the company referred to in the preceding section were lost when Fort Pillow was captured. The captain who recruited the company made out a roll of it from memory in 1S67. The persons whose names are borne on it or their heirs were paid on it at the time it was made out, and it has been used for some purposes in the War Department. In view of the fact that the roll was made by the person who enlisted the men and as a record of that enlistment, it should be accepted as prima facie evidence of the facts recorded therein, notwithstanding it was not made at the time of the enlistment. Whenever it is shown b}' other records made at the time of the occur- rence of the things recorded that the roll is incorrect in any particular, it should be corrected accordinglv. But as long as it is the only evi- dence obtainable, or the best evidence of a given fact, it may properly and legitimately be used to establish the fact. Card 1067. April., 1895. MUSTER-OUT. 1755. The muster-out is a formal discharge from the arm}", making the soldier a civilian, and terminating all militar}" authority and juris- diction over him.^ The fact that the United States maj^ (as by Sec. 1290, Rev. Sts.) provide transportation to their homes and subsist- ence en route for soldiers after muster-out, does not continue them in the military service. Sec. 4701, Rev. Sts., defines the period of serv- ice of soldiers with reference to the application of the pension laws, but not otherwise. 65, 105, May., 1891t.. 1756. An officer or soldier actuall}" serving to a given date cannot legally be mustered out or discharged as of a prior date. 44, 450, January, 1891; 46, 101, 223, 243, March and April, 1891; 51, 126, Decemher, 1891; Card 8962, Septemher, 1900. But where certain volunteer officers duly absent from their commands were on May 6, * As to the effect of the concluding provision of the 60th Article of War, see note to § 117, ante. 486 MUSTEK-OUT. 1865, ordered by the President to be honorably mustered out of service "of date of 15th instant," the said officers to immediately apply b}^ letter for their muster-out and discharge papers, held that they ceased, by virtue of that order, to be officers on the date last named, though the muster-out and discharge papers may not have reached them until after such date. Cards 1636, 1945, October and Decemher, 1895. 1757. An officer of the volunteer branch of the army (act of April 22, 1898) can continue to hold his office after the regiment has been mustered out; this on the theor}^ that he is not an officer of the regi- ment merely, but an officer of the volunteer branch of the army. His office can therefore be allowed to remain in existence and he allowed to hold it as long as that branch of the army is in existence. Card 5075, Sejytemhci^ 1S98. ■ 1758. G. O. 108, A. G. O., of 1863, and circulars 75 and 80 of 1864, show that it was the policy of the Government at that time to dis- charge all volunteer officers and soldiers with their regiments, but many of them were in fact retained in service after their respective organizations were mustered out. The records show that the War Department has taken action and rendered decisions in many cases since the close of the war of the Rebellion based on the theory that it was legally possible for individual officers and soldiers to be retained in service after their regiments were mustered out. And from this practice and these decisions definite rules have been formulated and are now in force in the Record and Pension Office of the War Depart- ment. They were submitted by the Chief of that Office, approved by the Judge-Advocate General, and under date of February' 16, 1897, duly adopted as rules of practice in such cases by the War Depart- ment, and are as follows: 1. As a general rule an officer or enlisted man of volunteers, who was not actually mustered out of service with his command, must be considered as having been retained in the military service of the United States, notwithstanding General Orders No. 108 of 1S«>3, and other orders and circulars, of similar import, provided that h(^ was retained in service, or military control was exercised o^er him. 1)y competent authority. There are exceptions to this rule, however, such as those noted in paragraph seven, following. 2. When an officer or soldier was so retained in service, or sub- jected to military control, l)}^ the order or authority of a su})erior whom it was his duty to respect and obey while in service and who Avould have had authority to issue such order or exercise such control Avhile the subordinate officer or enlisted man was in service, he nnist be considered to have been retained in service ])v competent authorit3^ 3. An officer or enlisted man so retained in service, or subjected to MUSTEK-OUT. 487 military control, must be considered to tiave been in service so long as he was actualh" so retained or subjected to control. 4. An olficer who, having ])een retained in service after his com- mand had been mustered out, was ordered b}^ the Adjutant General, or bv other competent authority, to proceed to his home and report by letter to the Adjutant General for discharge, must be considered to have been in service until he received the order for his discharge, or, ■n case it cannot be ascertained when .he received notice of his dis- charge, until the date of the order directing his discharge, provided that it appears that upon receiving the order to go to his home and report he obeyed the order without dela3\ 5. An officer or enlisted man who was retained in service after the muster-out of his command, and was subsequenth" ordered to report to the chief mustering officer of his State for discharge, must be consid- ered to have been in service until the date of the issue of that discharge, provided that it appears that he obeyed his order and reported to the chief mustering officer of his State without dela}-. 6. But either an officer or an enlisted man, retained in service or subjected to military control after the muster-out of his command, who voluntaril}" withdrew himself from such service or control with- out permission from the proper authorit}^, or who failed to promptly obey an order to proceed to his home and report to the Adjutant- General, or an order to report to the chief mustering officer of his State, must be considered to have been separated from the service on the date on which he withdrew himself from militarj^ control or was relieved from dut}'; and if that date is not ascertainal)le, then his serv- ice must be considered to have terminated on the date of the last official order issued, or the last official act done to or concerning him, while he was still actually rendering military service or was under actual military control. 7. It is to be understood that the foregoing propositions apply only to officers and enlisted men who were retained for the service or con- venience of the Government, or by reason of the refusal or neglect of superior officers to cause them to be discharged; and that these propo- sitions do not appl}^ to deserters at large or to absentees with or with- out leave, at the date of muster-out of their commands, or to any per- sons who, through fault or neglect of their own, failed to be mustered out or discharged at the proper time, or to those w^ho were permitted to remain imder partial military control solely for their own comfort, convenience or safety, such as sick or wounded men undergoing' treat- ment in hospital or elsewhere. And recently in section 15 of the ""Instructions for Muster-out of the Service of United States Volunteers" (G. O. 124. A. G. O., 1898), 488 MUSTER-OUT. provision is made for "such as maj' be held in service by proper authoritj'" after their organizations shall have been mustered out. Card 5075, Septemhei^ 1898. 1759. On Januar}^ 12, 1899, it was provided by statute (see G. O. 13, A. G. O., 1899) "that the discharge of all officers and enlisted men from the volunteer service of the United States shall, as far as prac- ticable, take effect on the date of the muster-out of the organization to which they belong." Among the instructions or regulations of the •Secretary of War for carrying out this law is the following: "As pro- vided for b}' law, all officers and enlisted men, present and absent, stand discharged on the date of the muster-out of the organization to which the}' belong, unless retained in service b}" special authority of the War Department." Held that this regulation properly assumes that the Secretar}' of War has authority to retain officers and enlisted men in the service, because when "special authorit}- of the War Department" is given for such retention, it has been duly decided that it was not "practicable," within the meaning of the statute referred to, for them to go out with their organizations. Card 6621, July., 1899. 1760. Paragraph 1 of General Orders 108, A. G. O., 1863, prescribed that whenever volunteer troops were mustered out of service the entire regiment or other organization would be considered as mustered out at one time and place, with the exception of prisoners of war. This order must be regarded as promulgated by authority of the President because it was issued by the Secretar}" of War. That the order was such a regulation with reference to the administration of the ami}" as the President had constitutional authority to make cannot be ques- tioned, and being such it had the force of law where it applied. No one subject to the constitutional authority from which the order ema- nated could claim exemption from it on the ground of any absence of personal notice. The making known of this regulation throughout the army was notice to all concerned, and thereafter they held their enlist- ment subject to its conditions. When a man enlists in the army he does not bind himself to obey only the regulations and orders in force at the time of his enlistment, ])ut he agrees to obey the orders of the President without any such limitation, and he thereby enters into a new status and subjects himself to a new code and all the changes that ma}' be made in it from time to time. General Order No. lOS, of 1863, when it was issued and made known to the army, became a part of this code to which the soldier had subjected himself and he had no right to an}' further notice of discharge; and l)y the established prac- tice of the service the making known of the regulation to the army was the only notice required. It has been held that this regulation did not apply to soldiers specially retained in the service by compe- MUSTER-OUT, 489 tent authorit}' , because in such case the exception emanated contempo- raneously from the same authorit}" that made the rule. There is another point of view from which this subject might be considered were it necessary to do so. The power of an immediate disbandment of the whole armj^ must be vested somewhere in our political system. This power is of course primarih^ vested in Con- gress, which may pass an act, operative at the date of its passage, abolishing the army on tliat date. But as Congress cannot know pre- cisely when volunteer troops may no longer be needed and may be dis- banded, it has been left to the Executive to declare when they shall go out of service, and this executive power, when there is no legislative restriction, would seem to be as plenary" as the legislative power. Therefore, the Executive, in disbanding a volunteer arm}- (when the disbandment has been left to the Executive by Congress), might cause it, or parts of it to go out of existence summarih', without any notice, iictual or constructive. The exercise of this power to this extent would manifestly cause great hardship, and it has not been attempted in prac- tice. But the existence of the power has an evident bearing on the subject of notice, because where the power exists no original right of notice exists, and such right of notice as springs up is purel}^ a conces- sion to fairness. Paragraph 15 of G. O. 124, A. G. O., of 1898, prescribed that "the discharge from the United States volunteer service in case of all absen- tees (except in special cases otherwise provided for or such as may be held in service by proper authority) will take effect on the date of the muster-out of the organization." Par. 1, sec. II, of the same order directed that a physical examination should be made "of all officers and enlisted men of volunteers, except general officers and officers of the general stall, immediately prior to their muster-out of service or discharge." This apparently included absentees under military con- trol who (considering this provision without reference to others) might well be considered in the service for the purpose of this examination until discharged, either with or without examination. But bj^ para- graph 1-1 of the order it was prescribed that on the muster-out of an organization, discharge certificates were to be prepared for ever}- officer and man, present and absent, except officers and men held in service by proper authority and deserters; and paragraph 17 directed that in the cases of enlisted men absent, who on account of sickness were unable to join their commands, the discharge certificates were to be given to the mustering officer for transmission to the Adjutant Gen- eral, and in the case of soldiers absent on detached service under proper authority discriptive lists were to be sent to the officers under whom they were serving. Here is proof of an intention to carry out the pro- 4U0 NATIONAL CEMETERY. visions of paragraph 15 according to its terms. Paragraphs 14 and 17 mereh' supplied the means of doing s-o. All the parts of an executive regulation like a statute nuist be considered together to arrive at its true meaning, and moreover the construction here indicated has obtained in practice. Held therefore that G. O. 124 of 1898 had the same effect as G. O. 108 of 1863; that is, to discharge all absentees not retained in service b}^ competent authority on the date of the muster-out of the organizations to which they belonged.^ Cards 6980, 8962, Septemher^ 1900. 1761. Where a muster-out roll dated December 23, 1864, showed "the company mustered out on that date, * '* * to date from November 30, 1864," held t\i2ii the actual date of muster-out was as stated on the record, December 23, 1864. Card 2888, January^ 1897. 1762. When it is clearly shown by the official records that a volun- teer organization was actuallj^ mustered out of the military service of the United States on a certain date, that date should be held and accepted as the true date of muster-out, regardless of the date which may have been fixed in advance for the muster-out, of the date to which payment was made, and of the date of discharge entered upon the discharge certificates of the men mustered out with the organization. This rule should not, however, apply to the case, if such a case should arise, of an organization mustered out on a certain date as of some future date, payment being made to the future date and the discharge certificates bearing that date. Card 7451, Z^ecemJe'r, 1899. Thus where the records showed that a volunteer organization, having been fur- loughed to November 11, 1898, was ordered to be mustered out on November 21st, but was finally mustered on November 16th, payment being made to November 21, 1898, and the discharge certificates bear- ing the latter date, hdd that the true date of muster-out was Novem- ber 21, 1898, the muster-out having taken effect on that date. Card 8722, August, 1900. NATIONAL CEMETERY. 1763. The appraisement of land for a national cemeter}", as duly made b}^ a United States court under Sees. 4871 and 4872, Rev. Sts., is conclusive upon the Secretarj^ of War, who must thereupon pay the 'See this opinion approved by tlie War Dei)artnR'nt and published in full in a cir- cular therefrom, dated September 20, 1900. NATIOISTAL CEMETERY. 491 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 original appraisement is deemed eoccessive, it may properl}" be moved for a new appraisement on the part of the United States. 1 XXVI, 617, June, 1868. 1764. Held that, notwithstanding the provision in Sec. 4872, Rev. Sts., that the jurisdiction of the United States over land taken for a national cemetery, by the right of eminent domain, '"shall be exclu- sive," — such a jurisdiction, where the land is within a State, cannot be legally vested in the United States, except b}^ 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, (iOl, Ihij, 1869. 1765. Held that the general annual appropriation for the maintain- ing of tKe national cemeteries could not legally be expended for the purchase of other land, 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 land by the United States, specific authority must be obtained from Congress. XLI, 50, November., 1877. 1766. By Sec. 4881, Rev. Sts., the superintendent of a national cem- etery 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 person who tired a gun into or across the cemetery without causing any such injury as is specified in the statute, but, for the arrest and punishment of such a trespasser, must have recourse to the local authorities. XXXII, 425, March., 187^. 1767. Superintendents of national cemeteries are no part of the army but civilians, being required indeed ])y Sec. 4874, Rev. Sts., to be selected from persons who have been honorabl}^ discharged from the military service. They are therefore of course not subject to the Articles of War or to trial b}^ court martial;^ and, for an}" serious mis- conduct on the part of a superintendent, a removal from office would be the only adequate remedy. XXXV, 34, October, 1873; XXXVIII, 381, Novevd)er, 1876; 577, April, 1877. 1768. Sees. 4870-4872, Rev. Sts., constitute the only existing gen- eral law authorizing the purchase or acquisition of land as cemetery grounds for the interment of soldiers. The general provision on the subject, of sec. 18 of the act of July 17, 1862, c. 200, has ceased to be iSeel4 0pins. At. Gen.,27. '^See the Si^ubsequent opinion of the Atty. Gen., in 13 Opins., 131. ' See the subsequent opinion, concurring in this view, of the Attorney General, in 16 Opins. 13. And see § 168, ante. 492 NATIONAL CEMETERY. in force under the operation of Sec. 5596 of the repealing provisions of the Revised Statutes. 32, 201, 3faij, 1889. 1769. To authorize the acquisition, by the exercise of the right of eminent domain, of private land for a national cemeter}'^ under Sees. 4870, 4871, Rev. Sts. , there must be — (1) an existing appropriation (in conformity with the rule of Sec. 3736, Rev. Sts.), authorizing the acquisition; and (2) the private owner must be unwilling to give title, or the Secretary of War be unable to agree with him as to price. 32, 277, May, 1889. 1770. The Government is under no legal obligation to provide burial places for destitute soldiers at a volunteer home. Sec. 4878, Rev. Sts., in providing that the soldiers, &c., there designated, '"may be buried in any national cemetery free of cost," does not require the establishment of a national cemeter}' speciall}' for the purpose of inter- ments at such a home. 32, 277, May., 1889. 1771. The Gettysburg National Cemetery was established in 1863 by the State of Penns3'lvania with the cooperation of seventeen other States whose soldiers were engaged in the battle of Gettysburg; and a corporation was created for its establishment and care by an act of the Pennsjdvania legislature. The act of incorporation provided, among other things, that " the said grounds shall be devoted in per- petuity to the purpose for which they were purchased, namely, for the burial and place of final rest of the remains of the soldiers who fell in the defence of the union in the battle of Gettysburg; and also the remains of the soldiers who fell at other points north of the Potomac river in the several encounters with the enemy during the invasion of Lee, in the summer of one thousand eight hundred and sixty three, or died thereafter in consequence of wounds received in said battle and during said invasion."" By an act of the Pennsylvania General Assem- bl}' of April 14, 1868, the commissioners having charge of the cemeter}^ were authorized to transfer all the right, title, interest and care of the same upon its completion to the United States upon condition "that the United States government take upon itself the management and care of said cemetery and make provision for its maintenance." In accordance with a resolution of Congress approved July 14, 1870, a deed from the Soldiers' National Cemetery (the corporation al)ove referred to) dated April 18, 1872, was accepted, Avhich deed granted to the United States the cemetery to have and to hold "for the purposes for which it was acquired * * * as is fully set forth in the act of incorporation * * *"; but it is not stated that it shall not be applied to other like cemetery purposes also.' Held therefore that ^ See leading cases in the American Law of Real Property, pp. 24-27. NAVIGATION. 493 the burial of the persons specified in Section 4878, Revised Statutes, ma}^ be made in this cemetery without violating the terms of the transfer. Card 5246, Noventher, 1898. 1772. Section 3 of the act of incorporation establishing the "Sol- diers' National Cemetery " at Gettysburg, gave to the board of com- missioners authority to lay out, fence and ornament the grounds, to erect buildings and monuments and generally to do whatever in their judgment should be deemed necessary and proper to adapt the grounds and premises to the uses for which they had been purchased and set apart. In view of the circumstances and conditions of the transfer of this cemetery to the United States government (see preceding sec- tion) and the laws of Congress relating to national cemeteries, held that it was within the discretion of the Secretary of War to permit the erection, in said cemetery, by the agents of a State, of a monument to the dead of that State buried in the cemetery. 33, 42, June, 1889. NAVIGATION. 1773. The United States is not the owner of the soil of the beds of navigable waters,^ nor of the shores of tide-waters below high-water mark, nor of the shores of waters not affected by the tide below the ordinary water line of the same, except as it may have become grantee of such soil from the State or from individuals. The property in and over the beds and shores of navigable waters is in general in the State, or in the individual riparian owner. '^ But under the power to regulate commerce. Congress may assume, as it has recently assumed (see § 613, ante) the power so to regulate navigation over navigable waters within the States as to prohibit its obstruction and to cause the removal of obstructions thereto, and such power when exercised is "conclusive of any right to the contrary asserted under State author- ity."^ In exercising this power, it cannot divest rights of title or occupation in a State or individuals, but these rights are left to be enjoyed as before, subject, however, to the paramount public right of ^'^ee the definition of the term, "navigable waters of the United States", in The Daniel Ball, 10 Wallace, 557; Ex parte Boyer, 109 U. S. 629. See also Chisolm v. Caines, 67 Fed. Rep. 285; St. Anthony Falls Water Power Co. v. Water Commis- sioners, 168 U. S. 349; Leovy v. U. S., 177 id. 621. Statutes passed by the States for their own uses, declaring small streams navigable, do not make them so within the Constitution and laws of the U. S. Duluth Lumber Co. r. St. Louis Boom & Improvement Co., 17 Fed. Rep., 419. And see § 1777, post. -Pollard V. Hagan, 3 Howard, 212; Barnev r. Keokuk, 94 U. S. 337; Gilman v. Philad., 3 Wallace, 713; South Carolina v. Georgia, 93 U. S. 4; 6 Opins. At. Gen. 172; 7 id. 314; 16 id. 479; Illinois Cent. R. Co. r. Illinois, 146 U. S., 387; Shively v. Bowlby, 152 id. 1; Scranton v. Wheeler, 57 Fed. Rep., 803; Scranton v. Wheeler, 179 IT. S., 141. nVisconsin r. Duluth, 96 U. S. 379; U. S. v. City of Mohne, 82 Fed. Rep., 592; Leovy v. U. S., 92 id. 344; Leovy v. U. S., 177 U. S. 621. 494 NAVIGATION. freeing navigation from obstruction possessed and exercised by the United States tlirough Congress. In the execution of the laws relat ing to obstructions to navigation the Secretary of War has no general authority, but onl}' such as may have been vested in him by legislation of Congress, especially in the river and harbor appropriation acts/ 15, 272, 16, 244, March and April, 1887; 31, 42, B, 386, 36, 234, Aj^ril to Se2)teml>er, 1889; 42, 85, July, 1890; 51, 196, 65, 140, 66, 483, Janu- cmj to December, 1892; 68, 450, March, 1893; 63, 365, FSruary, 1891^; Card 2138, March, 1896. 1774. By legislation prior to 1890, Congress had exercised some con- trol over the subject of obstructions to navigation, principally with reference to bridges over navigable streams. (§ 613, ante.) But by the River and Harbor Appropriation Act of September 19, 1890, a general authorit}^ over the subject was assumed," and it was enacted, in sec. 10, as follows: "That the creation of any obstruction, not affirmatively authorized l)y law, to the navigable capacity of «;??/ tcaters, in respect of which the United States has jurisdiction is hereby prohibited." The act does not make it the duty of the Secretary of War to enforce this provision in all cases, but, in sees. 4, 6, 7, 8 and 12, it invests him with specific authority with regard to certain kinds of obstructions, as — to take precautions against obstruction by bridges and to approve the location of bridges, &c. ; to give permits for making deposits of substances or materials in navigable waters; to permit the erection of wharves, dams, breakwaters and the like; to break up and remove wrecks, &c. ; and to cause the establishing of harbor lines under regulations prescribed by him. But the prosecution and punishment of individuals creating obstructions without proper permit or authority of law is left b}^ the act to the law officers and the courts. 63, 365, FeljTuary, 189 1^. 1775. There is no law authorizing the Secretary of War to cause obstructions to be removed from navigable waters, except as he may direct his subordinates, charged with river or harbor improvement, &c., to remove them where appropriations exist for the purpose. The act of September 19, 1890, c. 907, makes it unlawful to place obstruc- tions in navigable waters without the permission of the Secretary of War, but when the law is violated it is not for the Secretar}'- to initiate proceedings but for the legal and judicial authorities under sees. 10 and 11 of the act, to take action b}' prosecution and injunction. 52, 343, March, 1892; 63, 365, Fehruary, 1891^. 1776. Under the provisions of sec. 10 of the act of September 19, ^See the subsequent opinion of the Attorney General in 20 Opins. 101. *See sections 9 to 20, inckisive, of the River and Harbor Act of March 3, 1899 (30 Stats., 1151), for existing statutes on the subject. NAVIGATION. 495 1890, it becomes not only unlawful but a criminal act to o])struct the navigation of navigable waters of the United States. Thus where a railroad company, under color of authority from certain State officials, proceeded to close for a month, pending- the repairing of one of its bridges, the passage up and down an interstate navigable stream, so that in fact the United States was prevented from transporting upon the same a gun carriage manufactured within the State for the Gov- ernment — held that the assumption of jurisdiction over such waters by the United States through the legislation of Congress had displaced the jurisdiction previousl}' exercised by the State to authorize such obstructions; and that under this legislation the river was a public highwaj^ open, not onlv to the United States for public purposes, but to all private individuals whatsoever, and could not lawfullj^ be closed or interrupted; and advised that the proper U. S. district attorney be communicated with, with a view to the initiation of proceedings under sec. 11 of the act. 64, 210, March, ISOI^. 1777. Those rivers must be regarded as public navigable rivers in law which are navigable in fact. And ihej are navigable in fact when they are used or are susceptible of being used in their ordinary condi- tion as highwa3's for commerce over which trade and travel are or may be conducted in the customary modes of trade and travel on water. And the}' constitute navigable waters of the United States, in contra- distinction from the navigable waters of the States, when they form in their ordinary condition by themselves or by uniting with other waters a continued highway over which commerce is or may be carried on with other States or foreign countries in the customary mode in which such commerce is conducted by water. ^ The true test of the navigabilitj' of a stream does not depend on the mode h\ which com- merce is or may be conducted, nor the difficulties attending navigation. It would be a narrow rule to hold that in this countrj- unless a river was capable of being navigated by steam or sail vessels, it could not be treated as a public highway. The capability of use b}' the public for purposes of transportation and commerce affords the true criterion of the navigability of a river, rather than the extent or manner of that use. If it be capable in its natural state of being used for purposes of commerce, no matter in what mode the commerce may be conducted, it is navigable in fact and becomes in law a public river or highway.^ Applying these tests to a tributary of the Mississippi River in Ten- nessee, it was held that the same was a navigable water of the United States; that the fact that all acts of the State legislature declaring a certain part of the river navigable had been repealed, did not alfect iThe Daniel Ball, 10 Wall., 557. ^The Montello, 20 Wall., 430. 496 NAVIGATION. the question of the navigability of that part so far as the laws of the United States were concerned. For example, the duty of the Secre- tary of War, under sec. 4, act of 1890, with respect to unreasonable obstructions to navigation over the part referred to, would be unaf- fected by the repeal of the State laws. Cards 1511, Jnly^ 1895 ; 1709, Septeinher^ 1895. 1778. Tltld that the Bayonne Canal, in Hudson Co., New Jersey, was navigable water of the United States subject to the admiralty jurisdic- tion of the U. S. district court and to the laws of Congress for the enrolment and licensing of vessels and otherwise regulating of com- merce, and could not therefore legally be ol)structed by tilling up or damming, by a railroad company, without the permission of the Sec- retary of War under the act of September 19, 1890. 44, 152, Decem- he,\ 1890. 1779. Held that the building of a dyke, under an appropriation for the impiovement of the navigation of the Hudson River, did not of itself vest in the United States a property in the soil or give it any title thereto;^ that the property in the river frontage was affected by the rights of the United States only so far as concerned the navigation of the river and the maintenance and conservation of the work of improvement, and that the owner might legally make any use of his property that he might see fit provided it did not obstruct navigation or interfere with the improvement." LI, 609, March., 1887. And see 54, 477, August, 1892. 1780. Under the power to improve navigation. Congress may appro- priate for, and the Secretary of War may cause to be erected, a pier in Lake Michigan, and after its erection the United States has the authority of conservation of the same. 54, 477, August, 1892. And see LI, 609, March, 1887. Its exercise may be discontinued or aban- doned when the work — such as a pier, dam, breakwater, &c. — is no longer needed for the improvement of navigation. 32, 375, May, 1889; 39, 99, 42, 210, Fehruary and Jidy, 1890. 1781. JTeld, that under the acts appropriating money for the improve- ment of the Columbia River, to be expended under the direction of the Secretary of War, the Secretar}-, while authorized to make regulations for the prosecution and protection of the works of improvement, was not empowered to require, by such regulations, the removal of fish- traps and pound nets as obstructions to navigation; that it was not within the province of the Secretary of War to determine what is or what may become an obstruction to navigation, and cause to be removed 1 6 Opins. At. Gen. , 1 72; 7 ul , .314; Hawkins Point Lighthouse Case, 39 Fed. Rep. , 77; Scrantoii r. Whet'ler, 179 U.S., 141. '' 1(J Opins. At. Gen., 486. See, however, act of Congre.«s of March 3, 1899 (30 Stats., 1152), and Scranton r. Wheeler, supra. . NAVIGATION. 497 the one or prohibited the other by a mere order or regulation, in the absence of authority given b^^ specilic legislation of Congress. LIII, 257, A2)rn, 1887. 1782. Hrld, under sec. 12 of the act of September 19, 1890, author- izing the Secretary of War to establish harbor lines, that, in establish- ing a harbor line in the harbor of Bridgeport, Conn., he was authorized to prescribe regulations under which the littoral owners (who, by the laws of Connecticut, have a right of property in the flats on their fronts, and may wharf or dock out to the navigable channel so as to avail themselves of the use of it) should have their vested rights rec- ognized and protected; that while he might, for the protection of navi- gation, regulate their building out to the channel, he could not prohibit their doing so, or condemn, or deprive them of, their property. But hdd that his authority for establishing a harbor line — which consists in locating an imaginary line beyond which wharves, &c. , shall not be extended or deposits dumped — could be exercised only so far as neces- sary for the protection of the navigable channel as an interstate water- way, and not to protect mere local traffic. 52, 211, February^ 1892. And see 51, 132, D^^crmh^i-, 1891. 1783. The construction, without the authority of the Secretary of War. of ^(H'irs in a harbor which is navigable water of the United States, outside of established harbor lines (or where there are no har- bor lines established), is, under sec. 7, act of September 19, 1890, unlawful when the same will be detrimental to navigation. And whether or not the persons who constructed such weirs had any license from the town is immaterial. 53, 45, April., 1892. 1784. A fish weir, so constructed as in a measure to obstruct the navigation of navigable waters, can not legally be placed in such waters without the authority of the Secretary of War, who, by sec. 7, act of September 19, 1890, is empowered to grant permission for the purpose. And so of a boom desired to be placed in a navigable river. 58, 347, March, 1893. 1785. Section 10 of the River and Harbor Act of March 3, 1899, makes it unlawful to construct docks and wharves in any navigable water of the United States without the permission of the War Depart- ment. The object of the law is to protect the interests of navigation by requiring all projects for the erection of such structures to be consid- ered and passed upon by the Department. A permit granted l)y the Secretary of War for the erection of a dock or wharf confers on the grantee no right, authority, or usufructuary interest in and to the shore or bed of the stream where the dock is to be l)uilt. The Federal stat- ute simply makes the consent or permission of the War Department a 10906—01 32 498 NAVIGATIOlSr. condition precedent to the exercise of such right, wlierever its exer- cise is liable to affect commerce and navigation; and when granted the permission can in no sense be construed as \'esting in the grantee any power to avoid or contravene the State and local laws or to invade the privileges and immunities held bv other parties thereunder. Card 8360, June, 1900. 1786. The Erie and Atlantic Basins, in New York Harbor, are pri- vate property, but they are also navigable waters of the United States; and the owners of the soil under the water hold the title subject to the rights of the public to navigate such waters, and are therefore not empowered to till in the basins and deprive the public of their use. Moreover they are waters over which the United States has expressly assumed jurisdiction in prohibiting, by the act of June 29, 1888, the dumping of deposits ''in the tidal waters of the harbor of New York, or its adjacent or tributary waters, within the limits which shall be prescribed by the supervisor of the harbor." ILAd that the subse- quent establishment, under the act of August 11, 1888, s. 12, of har- bor lines in that harbor outside these basins did not oust this juris- diction, but that the act of June 29, 1888, was still in force. 50, 366, Ncniember, 1891. 1787. Jleld that the prohibition, by sec. 6, act of September 19, 1890, of the dumping of ballast could not legally be enforced in New York Harbor l^eyond the three mile limit. ^ 51, 154, December, 1891. 1788. ITeld that the River and Harbor Act of August 11, 1888, s. 12, did not make the approval of the Secretary of War essential to the establishment by a State of harbor lines on its internal navigable waters, and therefore that, until the United States exercises control in the manner provided for by sec. 12 of said act, the State of Wiscon- sin was empowered, through the municipality of Duluth, to change and regulate the harbor lines of Duluth harbor without such approval.^ 33, 308, Jidy, 1889. 1789. The River and Harbor Act of June 14, 1880, s. 4, makes it the duty of the Secretary" of War, on being satisfied that a sunken vessel obstructs navigation, to give thirty days' notice, to all persons inter- ested in the vessel or cargo, of his purpose to cause the same to be removed unless removed b}^ the persons interested as soon thereafter as practica))le, before himself proceeding to take measures for its removal under the act. If the removal be effected by the Secretary of AVar, the act requires that the vessel and cargo shall be sold at auction and the proceeds deposited in the Treasury. Under this legis- ^Com]>are the concurring opinion of the Attorney General, in 20 Opins., 293. 2 See County of Mobile /'. Kimball, 102, U. S. 691. NAYIGATIOTQ. 499 lation — especially in view of the fact that the act authorizes the taking possession of the property of private individuals and the disposing- of it without compensation to the owners — held that the notice should be strictly given to all interested, the owners of the cargo as well as the .vessel, unless indeed such notice were waived, in which case the waiver should be definite and express and joined in by all the interested par- ties. 35, \m, Ocfoher, 1S89. 1790. The engineer officers of the army, in opening a channel in a navigable river, for the improvement of which appropriation had been made b}- Congress, were assisted and co-operated with by a local transportation company which owned the land adjoining the channel which it was using for its own boats. Upon the completion of the improvement this company proceeded to levy a toll on other vessels passing through the channel. Held that such toll was an obstruction to navigation and could not legallv l)e enforced; the fact that the com- panv owned the land giving it no exclusive right to the free use of navigable waters of the United States. L, 538, JuJy^ 1886. 1791. Where a railroad company, which, as riparian proprietor, owned the land upon which was located a revetment of the bank of a navigable stream (constructed by the United States in the improve- ment of the navigation of the same), was authorized to rebuild the revetment, subject to the condition that the work should be so done and maintained as to fulh^ subserve its purpose as a safe and secure revetment and protection to the channel of the stream — held that the company, as riparian owner, was legally entitled to use the revetment so long as such use did not impair its serviceableness or involve such an exclusive possession as would be in violation of the provisions of sec. 9 of the act of September 19, 1890; and that a failure on its part to perform the condition would not, pf-'i" se, divest it of such right of use, or empower the Secretar}- of War to enforce such performance b3" revoking the authority to reluiild the revetment. 64, 11, Fehruary., 1891^. 1792. Held that under sec. 3 of the River and Harbor Appropriation Act of July 13, 1892, the Secretary of War was empowered to author- ize the laying of a water main across the bed of the channel of any navigable water of the United States. 65, 352, June, 1894.. 1793. Held that it was doubtful whether "floatable'' streams, /. e. streams capable oidy of being used for floating saw-logs, timber, &c., not being navigable in a general sense, were included in the term ''navigalfle waters of the United States," as employed in statutes pro- viding that dams shall not be constructed in such waters without the permission of the Secretary of War. But held that it was clearly 500 NEW TRIAL. competent for Congress, under the commerce clause of the Constitu- tion, to exercise control over such streams as highways of interstate conmierce. 63, 375, I^ehruain/^ 1891^.. 1794. The act of August It, 1894 (sec. 6), provides that "it shall not be lawful to place, discharge, or deposit, bv any process or in any manner, balhist, refuse, dirt, * * "" or an}" other matter of any kind other than that flowing from streets, sewers, and passing there- from in a liquid state, in the waters of any harbor or river of the United States for the improvement of which money has been appro- priated by Congress, elsewhere than within the limits defined and permitted by the Secretary of War". And any and every such act is made a misdemeanor punishable by tine and imprisonment, etc. This statute prohibits the discharging or depositing of matter "in the waters of any harbor or river for the improvement of which money has been appropriated by Congress." As the statute is a penal one, and therefore subject to the rule of strict construction, this prohibi- tion should not be construed to extend to the tributaries of such waters, notwithstanding the pollution of the tributaries would result in injury to said waters. Card 581, October^ ISOJf. 1795. No executive department of the Government can give private parties the exclusive privilege of harvesting ice from any part of a ravigable river of the United States. Card 1817, Nove)iihei\ 1895. NEW TRIAL. 1796. New or second trials have been of the rarest occurrence in our military service. They have only been had, and are only authorized, where the sentence adjudged upon the first trial has been dimpproeed by the reviewing authority and the accused has asked for a second trial. It was held at an early period by Attorney General Wirt^ that the prohibitor}' provision of the Articles of War (now contained in Art. 102) that " no person shall be tried a second time for the same ^oflence," did not apply to a case in which the accused himself requested a new trial, the objection to such trial l)eing deemed to be subject to be iralved 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 naturally ])een but seldom exercised; parties convicted and sentenced being in general satisfied that the proceedings 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 1 1 Opins. At. Gen. 2:]3. And see 6 id. 205. OATH AUTHORITY TO ADMINISTER. 501 was given), and those of which the proceedings are published in G. O. IS, War Dept., 1861, 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 commander or the President. XXXVII, 492, April, 1876; XXXIX, 233, Octohei', 1877; XLIII, 423. XLIV, 171, October, 1880. NOLLE PROSEaUI. 1797. A prosecution before a court martial proceeds in the name and by the authority of the Government. (See Art. IHJ.) The United States, therefore, through the Secretary of AVar, or the military com- mander who has convened the court, may require or authorize the judge advocate to enter a nolle prosequi in a case on trial (or, less tech- nically, withdraw or discontinue the prosecution), either as to all the charges where there are several, or as to any particular charge or specification. But the judge advocate cannot exercise this authority at his own discretion, nor can the court direct it to be exercised. IX, 488, 533, August. 1864: LIV, 458, JVovemher. 1887. NON-COMMISSIONED OFFICER. 1798. Where a non-commissioned officer (sergeant) was transferred to another company as a private, but shortl}' thereafter was again appointed a non-commissioned officer; //eldthut, having actually served for a time as a private, his service as such could not legally l)e con- verted into that of a non-commissioned oflicer bj^ dating his warrant back to the date of his transfer. Card 4427, June, 1898. 0. OATH— AUTHORITY TO ADMINISTER.^ 1799. An officer of the arnw has no authority, virtute officii, to admin- ister an oath. He is indeed specially empowered to exercise this func- tion, under certain circumstances, by statute — as by the 2d, 84th and *By sec. 4 of the act of July 27, 1892 (27 Stats., 278), "judge-advocates of depart- ments and of courts-martial, and the trial othcer of summary courts, are * * * authorized to administer oaths for the purposes of the administration of military justice, and for other purposes of military administration." _ Under sec. 19 of the act of May 28, 1896 (29 Stats., 184), United States commis- sioners and all clerks of United States courts are authorized to administer oaths gen- erally (3 Comp. Dec, 65). 502 OATH AUTHORITY TO ADMINISTER. 85tli Articles of War; and further by sec. 183, Rev. Sts., in a case where, being- an officer of the War Department, he is detailed to inves- tigate frauds, &c.^ XXXIV, 648, December, 1873. 1800. Par. 771, A. R., authorizing certain military officers to admin- ister certain oaths, Jtdd without legal effect. Such authority can be given only ])y statute. 66, 88, Octohe7\ 1892. The regulation is an encroachment upon the legislative province. 60, 471, 'Ixlt/, 1893/ 65, 187, t/iote, lS9Jf. The affidavits referred to in this paragraph (which are such only as relate to matters of property accountability — XLIX, 211, 333, 355, July and Septeinher., 1885) should be taken, if practica- ble, before one of the militar}" officers authorized to administer oaths by the act of July 27, 1892, c. 272, s. 1. If no such officer is avail- able, a competent civil official should be resorted to." 60, 171, ■'■nfjjra. 1801. The act of July 27, 1892, c. 272, s. 4, in authorizing certain militar}^ officers to administer certain oaths, does not, of course, affect the power, of administering such oaths, of other officials who may have been authorized to administer them before the passage of the act. Such officials may still administer the same, and, when doing so, should bo paid their fees as notaries, commissioners, &c., as before. But, to avoid expense, it is desirable to resort to the officers empowered by the statute, where practicable. 56, 408, JVovemher, 1892. 1802. Affidavits required to be taken in the execution of contracts pertaining to military administration may be taken before the officers named in the act of July 27, 1892. This act having been passed sub- sequent to the enactment of Section 3745, Revised Statutes, modifies the latter to the extent stated. Cards 3671, November, 1897; 3768, January, 1898. 1803. The term ''judge-advocates of departments" used in the act of July iJ7, 1892, was intended as descriptive of the officers perform- ing the duties of those positions, and includes the officers detailed under the act of July 5, 1884, to perform such duties as well as the officers of the Judge-Advocate GeneraFs Department who are perform- ing them, and also officers temporaril}^ ' assigned to such duty by a department conunander. In fact there is no officer of the army whose title, aside from his assignment to such duties, is '"judge-advocate of department." The judge-advocate of a department and the other officers named in the act of July 27, 1892, as well, should, in taking ^Sec. 1813, Kev. Sts., was amended March 2, 1901, to read as follows: "Any officer or clerk of any of the departments lawfully detailed t(j investigate frauds on, or attempts to defraud, the (Tovernment, or any irregularity or misconduct of any officer or agent of the United States, and any ofticer of the Army detailed to conduct an investigation, and the recorder, and, if there be none, the presiding officer of any military board ai)pointed for such purpose, shall have authority to administer an oath to any witness attending to testify or depose inthecourseof such investigation." ^See G. (). '2.0, of June 22, 1894, abrogating the olil par. 771, A. R., and sul)stituting a new one in conformity with the view here expressed, 683 of 1895 (765 of 1901 ). OATH OF OFFICE. 503 affidavits, append to their signatures such words as will show that they are competent to administer such oaths. Cards 3746, December, 1897,' 9060, October, 1900. OATH— OF OFFICE. 1804. The act of July 2, 1862, now contained in Sec. 1756, Rev. Sts.,^ requires that ''every person elected or appointed to any office of honor or profit, either in the civil, military or naval service" (with certain exceptions stated), shall, before entering- upon the duties of such office, take and subscribe a certain form of oath recited in the enactment. Held that the term "office" referred to a public office established b}' law with a definite tenure, function, &c., and therefore that an agent employed by the Secretary of War, under his general authority, and for a temporary purpose, and whose duties, &c. , were not defined by any statute, was not an incumbent of an ojfiee in the sense of the statute or required to take the prescribed oath." XXVI, 652, July, 1868. 1805. Held that a ''private physician," temporarily employed to attend officers or soldiers under the authority of the Army Regula- tions, was not an officer of the United States, or required to take the oath prescribed by the act of July 2, 1862 (Sec. 1756, Rev. Sts.). XX VIII, 22, July, 1868; XXX, 437, V^w?tf, 1870. 1806. Held that an officer of the arn\y, in entering upon his office, could not be allowed (in the absence of special authority from Con- gress) to take a modified oath of office on the ground that his religious convictions would not permit him to take the oath as prescribed in the gtatute. XI, 503, February, 1865. 1807. Held that a person who, having given aid to the enemy during the war of the rebellion, had, upon his disability being removed by Congress, been appointed to an office under the United States, could not legally qualify himself for the same by taking a form of oath of office prepared by himself, but could take only the modified form specially authorized by Sec. 1757, Rev. Sts. XIX, 89, October, 1865; 376, January, 1866. 1808. Section 2 of the act of Congress, approved May 13, 1884 (23 Stat. 22), provides that the oath of office to be taken by any person appointed to an office in the military service shall be that prescribed in Section 1757, Rev. Sts. Section 1758 provides that this oath "may. be taken before any officer who is authorized either by the laws of the United States or by the local municipal law to administer oaths." 1 Repealed by act of May 13, 188-1 (1 Sup. Rev. Sts., 428), which provides that the oath to V)e talien l)y officers shall be that prescribed in Sec. 1757, R. S. See § 1810, ■pout, and note. ^That employees who are not officers are not required to take the oath prescribed by Sec. 1757, Rev. Sts., see 1 Comp. Dec. 540, and authorities cited; 4, uZ., 92. 504 OFFICE. Ildd that an oath of office taken liefore an assistant postmaster was not sufficient; sucli officer not being empowered, either b}- the Federal or the k^cal Uxw, to administer such an oath. 39, 19, Fehruary^ 1890. 1809. Officers of the army are authorized to administer oaths of office, by Sec. 392, Rev. Sts., to the Postmaster General and "persons employed in the postal service." 50, 74, October^ 1891; Card 8725, Aiigust, 1900. And held that the officers — judge advocates and trial officers — designated in the act of Jul}- 27, 1892, c. 272, s. 4, and authorized to administer oaths for "purposes of military administra- tion," have, under this act and Section 175S, Rev. Sts., authority" to administer oaths of military office.^ Card 4441, Ju7ie., 1898. 1810. The Constitution requires all executive officers of the Govern- ment to take an oath to support it, and by an act of Congress approved May 13, 1884 (23 Sts., 22), repealing Section 1756, Revised Statutes, persons appointed in the military service are required to take the oath prescribed in Section 1757, Revised Statutes. Section 1750 expressly required that the oath therein prescril^ed should be taken before enter- ing on the duties of the office and before being entitled to any of the salary or emoluments thereof, but this section was wholly repealed, and all that stands in its place is the requirement to take the oath given in Section 1757. There is therefore no existing requirement as to the time when the oath shall be taken. So where an officer having accepted an appointment as second lieutenant in the Signal Corps, and taken the oath of office before a person not authorized to administer it, held that a second oath should be taken and, if taken, the term of service could be counted from the date of acceptance.'^ Card 4567, July 12., 1898. See Card 6644, June, 1899. OFFICE. 1811. A public office^ is a place created by statute or by virtue of a power conferred by statute, for the purpose of the administration of public affairs, and the holder of which is appointed or elected and not emplo^'ed by contract merety, and is vested with functions involving >See Circ. 23, A. G. O., 1898. '■* Compare Mechem, Public Officers, 165. That the requirement as to taking tlie oath is directory and the term of office and compensation begin with the acceptance of the office, see U. S. v. Flanders, 112 U. S. 88; U. S. v. Eaton, 1H9 id. :«1 ; 4 Comj). Dec. 496, 601; 6 id. 672. In cases of promotions in the Army by "immemorial custom and practice" and as fixed by regulations "recognized and sanctioned ])y Congress," pay begins with dates of vacancies. Dig. Dec. Second Comi)., vol. 3, sections 867, 882; see, also, jjar. 1306, A. R. of 1895. *An otlice is a i)ublic station or emjiloyment, conferred l)y the appointment of government. The term eml)races the ideas of tenure, duration, emolument, and duties. The duties are continuing and j)ermanent, not occasional and temporary, and are defined l)y rules prescribed bv government and not by contract. U. S. r. Hart- well, 6 Wall. 385; U. S. r. (Jermaine, 99 U. S. 508. See, also, U. S. v. Mouat, 124 id., 307; U. S. v. Maurice, 2 Brock. 98 (Federal Cases, No. 15,747); U. S. r. Bloom- OFFICE. 505 the action of some part of the machinery of government (legislative, executive, or judicial) belonging to the political community whose agent he is. Card 2301, May, 1896. 1812. It is a rule of law that when a person holding one office enters upon another, a performance of the duties of which is incompatible with the performance by him of the duties of the lirst, he abandons and vacates the lirst office in entering upon the second.^ Thus held that a captain of New York cavalry who accepted, July 20th, 18()4,the office of captain and assistant quartermaster of volunteers vacated on that day his office of captain of cavahy. 40, 153, Aju'H, 1S90. But held that a captain of cavalry did not vacate his office as such by the acceptance of professor of the U. S. Military Academy — there being- no legal incompatibility or inconsistency in the functions of the two offices.' 56, 151, October, 1892. gart, 2 Benedict, 356 (Federal Cases, No. 14,612); In re Hathaway, 71 N. Y. 2.38; Rowland i\ ]Mayor 83 id. 372; People r. Duane, 121 id. 367; In re Corliss, 11 R. I. 640; Wilcox r. People, 90 111. 186; Throop v. Langdon, 40 Mich. 673; State v. De Gress, 53 Tex. 387; 13 Opins. At. Gen. 310; 20 id. 686; 4 Comp. Dec. 696, and authorities cited. A jiublic officer is the incuml>ent of an office "who exercises con- tinuously, and as a part of the regular and permanent administration of the Govern- ment, its public powers, trusts, and duties". Sheboygan Co. v. Parker, 3 Wall., 93. In view of the provisions of the Constitution as to the appointment of officers, unless a person in the service of the United States holds his place by virtue of an apjioint- ment by the President, or of one of the courts of law, or heads of departments, authorized by law to make such appointment, he is not, strictly speaking, an officer of the United States. U. S. v. Germaine, 99 U. S., 508; U. S. v. Mouat, l24 id., 307; U. S. r. Smith, (f/.525; 1 Comp. Dec. 540; 4 id. 703; 5 id. 649. As to retired officers holding office, see note 1, page 623 jjo^t. ' In the absence of a statutory prohibition a person may hold two distinct offices, places, or employments which are not incompatible, and receive the compensation attached to each. Converse v. U. S., 21 Howard, 463; U. S. v. Brindle, 110 U. S., 688; U. S. r. Saunders 120, id. 126; Meigs r. U. S., 19 Ct. Cls. 497; 5 Opin. At. Gen. 768; 19 id. 283; 3 Comp. Dec. 432; 4 id. 115; 5 id. 9; 6 id. 284, 683. But the services for which extra compensation is allowed must, under the statutes, be such as have no connection with the duties of the officer and must ])e rendered under an appoint- ment or emplovment. Converse r. V. S., 21 Howard, 463; U. S. v. Saunders, 120 U. S. 126; 19 Op. At. Gen. 283; 5 Comp. Dec. 9; 6 id. 284, 683. Under section 2 of the act of July 31, 1894 (28 Stats., 205), an officer, other than a retired officer elected or appointed as specified therein, accejiting or continuing to hold after the passage of that act an office with an annual salary of $2500 or more, vacates any other office to which compensation is attached. 2 Comp. Dec. 33. See, however, U. S. r. Harsha, 172, U. S. 567. As to two persons holding the same office, pending notice of appoint- ment of successor, see 7 Opins. At. Gen. 303; 1 Comp. Dec. 576; 3 id. 249. ^Concurred in by the Secretary of War. See, however, 20 Opins. At. Gen., 427, where Atty. General Miller held that the acceptance of an appointment as Chief of the Record and Pension (_)ffice. War Department, by a surgeon of the army created a vacancy in the latter office, the offices being held to be inconsistent; l)ut said that whether this view be correct or not, the appointment of a successor in the office of surgeon would displace the former incumbent, citing Blake v. U. S., 103 U. S. 227, and Keyes v. U. S. , 109 id. 336. And where an appropriation was made for ' ' the pay of one assistant professor" of the Military Academy, the act providing for the appointment of such i)rofessor in addition to those theretofore authorized. Attorney General Gluey held tiiat as the term of the new office avouM not begin until the next fiscal year, the acceptance of the appointment theret(i by an officer of the army would not vacate his office until the term of the new office actually commences. 20 Opins., 593. In a decision of the Comptroller the positions of "acting judge-advocate and aid to a major general" were held to be "incompatil)le, and an officer is not entitled to the addi- tional pay of Ijoth positions at the same time." 5 Comp. Dec. 971. 506 OFFICE. 1813. Section 2 of the act of July 31, 1894 (28 Stats., 205), provides that no person, other than retired officers elected or appointed as therein specified, ''who holds an oflice the salary or annual compensa- tion attached to which" amounts to ^2,500, "shall l^e appointed to or hold any other otfice to which compensation is attached unless specially heretofore or hereafter specially authorized thereto by law."^ Held that while the act of April 22, 1898, for the raising of volunteers (30 Stats., 361) '• specially authorized -' the appointment of regular army ofiicers by the governors of States and Territories, no such provision was made as to volunteers of the District of Columbia, and a captain receiving an annual compensation amounting to $2, .500 a year could not hold his office in the regular army and accept an appointment as field officer in the regiment of volunteers from the District of Colum- bia. Card 1119, May, 1808. 1814. Section 1222, Rev. Sts. (act of July 15, 1870), provides that— "No officer of the Army on the active list shall hold any civil office, whether by election or appointment, and every such officer who accepts or exercises the functions of a civil office shall thereby cease to be an ofiicer of the Army, and his connuission shall l)e thereby vacated." ILId that this provision was an exercise by Congress of its constitu- tional power '" to raise armies," which includes the power to determine of whom they shall consist." XXX, 556, Angust, 1870. 1815. Under the provisions of Sec. 1222, Rev. Sts., an officer on the active list, who accepted, held, or exercised the functions of a civil office after July 15, 1870, ceased to be an officer of the army.^ XXXV, 54, Decemher.i 1873. 1816. The words "exercises the functions of a civil office" were used in Sec. 1222, Rev. Sts., in order that it might not be necessary to prove in ever}^ case that an officer of the army entering upon a civil office had qualified according to all the formalities of the law, but, rather, that the holding of the office whether by formal qualification or other- wise should have the effect of vacating his commission in the army. "Exercising the functions of an office" means something moi"e than merely transacting some of the business of an office as the agent of some one else; it means transacting the business by virtue of holding the office. Thus where an officer on the active list of the army, after having had conferred upon him by a governor of a State the honorary title of colonel and assistant adjutant general in the State militia, took temporary charge of the adjutant general's office of the State at the request of the governor, during the absence of the adjutant gen- iSee2Comp.Dec.,33. '■'See United States r. Bainbridge, 1 ^Tason, 71; Li re Riley, 1 Benedict, 408. ^See tlie oi)inion of the Attorney ( ieneral (14 Oi)ins. 200), that the General of the Army could notexercise the ottice of Secretary of War without ceai^ing to be an otiicer cer of the army. But see n(nv the act of Aug. .5, 1882 (22 Stats., 238). OFFICE. 507 eral, hdd that such action on the part of the officer did not amount to the acceptance of a civil office. If, on the other hand, the officer had in fact been commissioned as asst. adjt. genl., accepted the commis- sion, and entered upon the discharge of the duties of the office, he would then have been exercising the functions of a civil office. Card 272, Septemler. 189.!^. 1817. Held th^t the term civil office employed in Sec. 1222, Rev. Sts., included Federal, State, county, or municipal office. XXXVI, 477, May^ 1875; LV, 501, April., 1888. So held that an officer of the army could not, without thereby vacating his militar}^ office, accept or exer- cise the office of park commissioner of the City of Philadelphia (XXX, 555, August, 1870); or of trustee on the board of trustees of the Cincinnati Southern Railroad' (XXXVIII, 31, Jlarc/t, 1876); or of commander of a battalion of State militia (XLII, 306, 3Iai/., 1879); — 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, supra. But where a State statute authorized the employment, 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 ami}-, h(dd that such officer, in accepting the same, by the authority of the Secretary of War, would not be affected by the provision of Sec. 1222, Rev. Sts. ; such a position being in fact, as it was designated in terms in the statute, an employment merel}', and one of a temporary and incidental character, and thus properly distinguished from an office. XXXVII, 540, May., 1876. And sjmilarly held., later, in regard to the employment of the same officer (under a similar statute) as a consulting engineer to the State engineer; the function of the latter being the office established by the statute, while that of the former was but an incidental employ- ment. XLIII, 307, May, 1880; LII, 271, June, 1887. 1818. So, held that an officer of engineers detailed by the President to perform, or assist in, engineering work, for State or municipal authorities, at their request, could not be said to exercise a civil office, and was thus not affected by the provision of Sec. 1222, Rev. Sts. ; the onl}" 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 separated from his corps or otherwise interfere with the performance of his militar}' duties proper." XXXVII, 540, 542, May, 1876; LII, 271, June, 1887. 'Concurred in hv the Solicitor General, 15 Opins. At. Gen., 551. ^It is held by the Attorney General (16 Opins., 499) that while to detail an offi- cer of the active list for duty with Professor King on the U. S. Geological Survey would not be to invest him with a ciril office, yet that, as such survey is a civil irork, an officer could not, in view oi the provisions of Sec. 1224, Rev. Sts., legally be detailed for duty thereon if the effect of such detail would be to separate him from his regiment, corps, &c., or otherwise interfere with the performance of his military duties proper. 508 OFFICE. 1819. Sec. 1222. Rev. Sts., does not apply to enlisted men. But except perhaps in :i rare case — as, for example, the case of an ordnance sergeant, or other member of the non-commissioned staff, established at a permanent station — it must in general lie quite incompatible with the status and obligntion of an enlisted man to hold any civil ofiice or employment, even one held for the mere purpose of qualif ving- the party to administer oaths, as that of a notary public. XXXVIII, 616, J\i)t(\ 1877. 1820. There is no statute of the United States which renders a retired enlisted man of the army ineligible for civil office. So lieJd^ that in the absence of an}' State statute directly or indirectly disqualifying such person for holding or exercising the office of town constable, he may legally be elected or appointed to and exercise the same. Card 1077, :SLarch, 1895. 1821. There is nothing in the United States statutes or arm}' regu- lations which prohibits a quartermaster employee (post engineer) from accepting the office of memlier of a city council. Card 5023, Sejjteiri- her, 1898. 1822. Held that the position of master machinist at the Springfield Arsenal, conferred by the appointment of the commanding officer, was not properly a Federal office, but an employment simply, 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 accepting State, Territorial or municipal office, Ije deemed to vacate and resign the Federal office. XXXVI, 223, Fehruary, 1875. 1823. Officers on the retired list are not affected by the provisions of Sec. 1222. Rev. Sts.^ They may hold any State, county or municipal office, and receive the emoluments of the same without their military office or pay being in any manner affected. Nor 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, 136, January, 1871; XLI, 662, Angud, 1879; XLTI, \m^F€lraary, 1879; Card 3327, June, 1897. 1824. Held that the prohibition of Sec. 1860, Rev. 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.' XLFI, 111. Jan- iiary, 1879. ^To a similar effect, see 15 Opins. At. Gen., 306. ^ But see, now, the act of Marcli 3, 1883, excepting retired officers from tiie ajjiilica- tion of the original provision. OFFICE. 509 1825. By a provision of the act of March 30, 1868, c. 38, s. 3 (now incorporated in Soc. 1333, Eev. Sts.), it was declared — "that an}- offi- cer of the ami}' or nav}' who shall, after the passage of this act, accept or hold any appointment in the diplomatic or consular service of the Government, shall l)e t-onsidered as having resigned his said office, 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 diplomatic position, that his military office must be regarded as vacated unless he forthwith resigned his diplomatic office on being advised of the passage of the act; that he could not legally be allowed to continue to hold his mili- tary office for a certain time till his services in the diplomatic office could conveniently be dispensed with. XXVI, 655, July, 1868. 1826. IL'Jd, that the act of March 30, 1868, c. 38, s. 2 (now Sec. 1233, Rev. Sts.), applied to officers on the retired list equally and alike with officers on the active list of the arm}-, 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 toexist.^ XXIX, 1, June, 1860. 1827. Held that an engineer officer of the army could not act as a member of the "River Commission for Mobile River and Branches" without vacating his military commission under Sec. 1333, Rev. Sts.; such river commission being established as a "public bodj- politic" by an act of the Alabama legislature of 1887, and a membership of the same being- clearly a civil office. LV, 501, Aj^j'il, 1888. 1828. By "civil office," as the term is used in Sec. 1333, Rev. Sts., is undoubtedly meant civil pul/lic office. The presidency of the Ameri- can Societ}' of Civil Engineers does not involve the exercise of any public functions; so held that it was not a "civil office" and could be accepted l)v an officer of engineers of the army without his military commission being affected. 62, -130, Xovemhei\ 1893. 1829. A resolution of the Board of Supervisors of the City and County of San Francisco empowered an engineer officer of the army, with others, to devise and provide a system of sewerage for that city ^ See opinion of the Attorney General in 15 Opins. 306. In a later opinion (15 Opins. 407), the words "every such officer" in the proviso of s. 2 of the act of March 3, 1875, c. 178, were construed by the same authority as expressing the intevt of Con- gress to so limit the application of the provision of March 30, 1868 (Sec. 1223, Rev. Sts.), that it should not affect the status of any officers borne on the retired list at the date of the first named act, March 3d, 1875, who were included within the pre- ce(ling part of the proviso; but otherwise as to other retired officers. See also Badeau V. U. S., 130 U. S. 439. That a resignation of a second office, the acceptance of which has operated to vacate an office previouslv held, will not work a re-investiture of the original office, see In re Corliss, 11 R. I. '643. 510 OFFICE. and county. Held that such officer, in accepting, would not he appointed to a civil office in the sen.se of Sec. 1222, Rev. Sts., l)ut would be simply employed (with the approval of the Secretary of War) to perform a certain temporary service. The case distinguished from that of Col. Gillmorc, Corps of Engineers.^ 64, 61, Jane^ 1892. 1830. ILAd that an officer of the army could, without ceasing to be such officer under Sec. 1222, Rev. Sts. , be assigned to and perform the duties of Adjutant General of the District of Columbia Militia, the same not being- (at the time) a "civil office"" created by law.^ LII, 271, June, 1887. 1831. Held, in view of the provisions of Sec. 1221. Rev. Sts., that an officer of the army could not legally be detailed in the service of "The World's Exposition of 1892,"" which is a corporation, nor upon "civil works" under the "World's Columbian Commission," which is not a corporation. And advised that, irrespective of the statute, to assign an officer of the army to a dut}^ which must, entirely or in great measure, and for any considerable period, separate him from the mili- tary duty for which Congress has authorized his employment and his pay, would, in the absence of statutory sanction, be unauthorized. 49, 211, SeptevJxi'., 1891. Also further Jield., in view of Sec. 1221, Rev. Sts. , that an officer of the army could not legally' be detailed to inspect the buildings in the course of construction for the World's Columl)ian Exposition, since such inspection would be an emploj'ment "on civil works," and would require his separation from his corps and interfere with the performance of his military duties.^ 49, 215, Sej)teml)er, 1891. 1832. The convention between the United States of America and the United States of Mexico dated March 1, 1889, provided for an "Inter- national Boundary Commission " to be composed of (1) a commissioner appointed by the President of the United States of America, and of another to be appointed by the President of Mexico, in accordance with the constitutional provisions of each country-; (2) of a consulting engi- neer appointed in the same manner bv each government; and (3) of such secretaries and interpreters as each government may see lit to add to its commission. On the question whether the acceptance by an officer of the army (captain of engineers) of an assignment or detail as "associate member," the same to be made bj^ the Secretar}- of War, 'Col. Gillmore'a case referred to is reported in 18 Opins. At. Gen. 11. And see Gen. Meade's case in 13 id. 310; also case in IB id. 499. Compare the still more recent opinion of the Atty. (4en., in 20 Ojiins. 604. ■■'See now act March 1, 1889 (2.5 Stat.s., 772), authorizing such assiiinnient. ^('()ni]iare case in 19 Oj)in.H. At. (u-n. 'lOO. ('(ingrcs.^, suhstMiui'ntly, by act of Auffust 5, 1892, expressly authorized the Secretary of War to detail at his discretion ofKcers of the army "for special duty in connection with the World's Columbian Exposition." OFFICE. 511 would vacate the officer's commission, held^ that the ])oundaiT com- mission in question could have no memliers other than the three classes above mentioned; that such members are officers thereof and hold civil offices; and that while the Secretary of War was without power to make, by assig'imient or detail, a person a member of the commission, the exercise by an arm}- officer, under such assignment or detail of the functions of the office of a member would under the provisions of Sec. l!^!^2, Rev. Sts.. vacate the officer's commission in the arni}-. But TemarTied that if the officer were merel}" detailed to consult with and advise the consulting- eno-ineer of the commission and not authorized or required to perform any official act purporting- to be an act of a member, he would not, b}^ acting pursuant to such a detail, vacate his connnission in the army. Card 2236, April., 1896. 1833. If the position of assistant to the postmaster at Mescalero, New Mexico, is an office, an officer of the army on the active list would under Sec. 1222, Rev. Sts., b}" accepting- it, vacate his commission in the ami}". If it is not an office, the same result would follow his holding said position and exercising- the functions of postmaster. Card 1854, November, 1895. 1834. The position of colonel *of a division of the "Rhode Island Division, Sons of Veterans, United States of America," is not a civil public office within the meaning of Sec. 1222, Rev. Sts. Card 2887, Felriiary., 1897. 1835. While the act of July 13, 1892 (27 Stats. 120), authorizes the detail of army officers as Indian agents, there is no statute specially authorizing an arni}^ officer to hold the office of assistant to the Deputy Commissioner of Indian Affairs. If such position is a "civil office" within the meaning of Sec. 1222, Rev. Sts,, an army officer on the active list could not accept it or exercise the functions thereof without vacating his commission in the army. Card 2789, December., 1896. 1836. The assignment of officers of the army as collectors of customs in Cuba and Porto Rico, being in foreign territory under military occupation, held assignments to military duty and not to civil offices within the meaning of Sec. 1222, Rev. Sts. Card 5771, Fcln'uary., 1899. 1837. Whether a person who holds a State or county office can accept and hold an office as commissioned officer in the volunteer army of the United States without vacating his civil office is a question to be determined by the laws of the State. ^ Cards 1079, 4493, xVpril and June, 1898. 1 Under date of June 10, 1898, the Attorney General held (22 Opins. 88) that the provisions of Section 1222, Revised Statutes, do not apply to an officer of the United States volunteers for the reason that he is not an "officer of the army on the active list" within the meaning of that statute. 512 OFFICER, OFFICER. 1838. On account of the want of familiarity with the procedure of military courts on the part of militia officers of Louisiana, it was asked by the adjutant genei'al of that State whether it would be admissible to detail upon such courts officers of the army who might be serving in the State, in connection with militia officers. Held that, apart from the provision of Sec. 1658, Rev. Sts., that such courts should be com- posed of militia officers only (see Militia), the Secretary of War would not be authorized to order officers of the army upon a duty so clearly outside of the functions devolved upon them by existing law, in the absence of express authority received from Congress. 60, 168, 1839. Where an officer of the arnn^ having become accountable under Sec. 1301, Rev. Sts., for a deficiency or damag-e to military supplies, had deceased, held, in the absence of the exculpatory' evidence indicated in the section, that the amount of such deficiencv, &c., was chargeable against the pay due his estate. 16, 236, April^ 1887. 1840. The object of the act of Feb. 3, 1887, c. 92, was to remuner- ate men for services rendered as officers prior to their being actually mustered in as such. It was not intended, however, to be used to make a person an officer who was not such. It did not provide for a re-muster, ])ut declared that persons commissioned as officers should be considered, for purposes of pay, as having been mustered from the date when they commenced their services. 38, 30, Jai^ uary, 1890. A person was appointed an assistant surgeon of a volunteer regiment, and performed his duties as such from December, 1862, to February, 1863, without being mustered in. Held that he was a de facto officer, and entitled, under the act of Feb. 3, 1887, to pay for the said interval. 44, 211, December, 1890. 1841. G. O. 92 of 1862, War Department, provided that -'all officers and privates fit for duty absent at that time (from the special muster of August 18, 1862) will be regarded as absent without cause, their pay will be stopped and they dismissed from the service or treated as deserters, unless restored; and no officer shall be restored to his rank unless by the judgment of a court of inquiry to be approved by the President, he shall establish that his absence was with good cause."" The order also provided that disability from wounds received in the service should be a sufficient excuse for absence from the special nuister of August 18, 1862. Under this order a first lieutenant. First Battery, Minnesota Light Artillery, being absent from the special muster of August 18, 1862, was dropped as a deserter. Su])sequ(Mitly a court of inquiry found that he was absent in consequence of Avounds received in OFFICIAL PAPERS, 513 action, and he was restored to duty January 12, 1863. After he was dropped as a deserter a sergeant of the battery was commissioned as first lieutenant in his stead. The sergeant was not formally mustered in as first lieutenant Init from August 26, 1862, to January 1, 1863, he ren- dered services as such and was paid therefor, and on January 1, 1863, was mustered in as captain of the battery. He was never formally dis- charged as an enlisted man, and the apparent vacancy in the grade of sergeant during the time he was performing the duties of first lieuten- ant under his appointment as such, was not filled. Held that the drop- ping of the original first lieutenant as a deserter was only conditional and that his ofiice was not thereby vacated. He was therefore from August 26, 1862, to January 1, 1863, an ofiicer de jio'e, while the ser- geant supposed to have been promoted was during the same period an officer de facto; his actual status being that of a sergeant performing the duties of first lieutenant of his battery. Card 1395, August., 1895. OFFICER'S SERVANT. 1842. Held that officers' servants, l)eing a part of the officer's house- hold, were entitled equitably to admission to post hospitals, and should not be regarded as a class subject to par. 1680, A. R. of 1889, relating to the admission to such hospitals of "civilians not in public service." They should be treated with the same liberality in this respect as is shown in the furnishing of subsistence supplies, which an officer is entitled to purchase not only for his own use but for that of his house- hold. ^ 37, 460, January, 1890. OFFICIAL PAPERS. 1843. The official papers on file in the War Department are not public records open to the inspection of any citizen; but, except in so far as law or usage has provided for the furnishing of copies of the same or the publication of their contents, as in the case of the records of militar}" courts, such papers are confidential archives of the Gov- ernment which may be consulted, or of which copies may be furnished, only by the authority of the Secretary of War, except where the courts of law may properly require their exhibition in evidence."^ The Secretary, in his capacity as an agent of the pu))lic, will of course l)e disposed to grant to proper persons such facilities for obtaining information from the records of his department as may, with due 1 A ptrieter view is expressed in Giro. No. 1, A. (x. O., 1890. -The admission of copies in evidence is authorized by 8ec. 882, Eev. Sts., as fol- lows: "Copies of any books, records, papers, or documents in any of the Executive Departments, authenticated under the seals of such departments respectively, shall be admitted in evidence e(iually with the orij^inals thereof." 16906—01 33 514 OFFICIAL PAPERS. reg-ard to the public interests, be accorded. Where application is made for copies of papers, it will be for hhn, in view of the nature of the information sought, the use proposed to be made of the same, &c., to determine, in his discretion, whether the private interests involved are such as properly to outweigh any public considerations which may exist against granting the privilege. In furnishing copies, a distinc- tion will properly l)e made between documents in the nature of per- manent records, such as gen(jral or special orders, muster rolls, discharges of soldiers, commissions of officers, &c., and the reports and communications of officers addressed to military superiors or to the Secretary of War in the line of their official duty. The latter are generally regarded iisj)/'/'r/7r{/rf/ co j >/ fnifn lent ions whicheven the courts, on grounds of public policy, will in general hold to be incompetent testimony and of Mhich the}' will refuse to require the production in evidence. 1 XIX, 375, and XXI, 142, Jamiary, 1S66; XXIV, 27, N'ov^nnlM^)\ 1866; XXVIII, 26, July, 1868; Card 71)12, AprIK 1900. 1844. Held that all useless and valueless official papers pertaining to the records of militar}- headquarters, posts or stations, could legally be destroyed ]>y an order of the Secretary of War without a resort to legislation. 63, 120, January, 189 1^. . 1845. Under Section 882, Revised Statutes, ''copies of any books, records, papers or documents in any of the executive departments, authenticated under the seals of such departments respectively, shall be admitted in evidence equally with the originals thereof." The cer- tificate under this section should be that the papers attached thereto are true cojyies of papers, records, etc., on file, and not "that the attached papers are found on the files of his office and form part of the records thereof." And the copies furnished should be copies of original "books, records, papers, etc.", and not copies of copie.'< of the same. Until therefore the original books, records, etc. , are filed in a department, it cannot furnish the copies contemplated by Section 882. Card 2433, July, 1896. 1846. The attorneys for a railroad company in a suit pending in a 'See Dawkins v. Ld. Rokebv, 8 Q. B. 255; Dawkins r. Ld. Paulet, 5, L. Reps., Q. B. 94; Dickson v. Earl of Wilton, 1 Fos. & Fin. 419; Home v. Ld. Bentinck, 2 Brod. & Bing. 130; Beatson r. Skene, 5 Hurl. & Nor. 837, 855 (Am. Ed.) ; Gardner v. Ander- son, 22 Int. Rev. Rec. 41; 1 Greenl. Ev. § 251; 11 Opins. At. Gen. 142; 15 id. 378, 415. In the recent case of INIaurice r. Worden, 54 Md. 233, — an action for damages on account of a libel claimed to have been contained in a comnuinication of the class indicated in the text — it was held that, while such a connnunicati(m is not "f/^.>-o- hitihi privileged," it is "privileged to the extent that the occasion of making it rebuts tlie ])resumption of malice, and throws ui)on the ])laintifi the ouii^ of jiroving that it was not made from duty but from actual malice and without reasonable and jn-obable cause." But see dissenting opinion of Miller, J. See also Am. and Kng. Encv. of Law (Isted.) , v. 19, 123; Best, l'rincii)les of Ev., 561, note (a) ; Wharton, Law of Ev., v. 1, § 604; Worthington r. Scribner, 109 Mass., 487; Api)eal of Hartranft d al, 85 Pa. St., 4.33; U. S. v. Six Lots of (Jrouud, 1 Woods, 234 ( Fed. Cases, No. 16,299) . ORDER^IN GENERAL. 515 United States circuit court against tlie City of CBicago, made appli- cation to the War Department for an authenticated copy of certain records of the headquarters of a military department (Department of Missouri), accompanied b}- a certificate from the judge of the court that the copies were deemed essential to the ends of justice on the trial of the case, and the application was granted. In the matter of the authentication of the copies, advii<('d that the Secretar}- of War could only certify to the identity of the custodian (the adjutant general of the department), and that his attestation was authentic and in proper form. Whether this would be sufficient to make the copies admissible as evidence under Sec. 882, E. S. , is a question to be determined Ijy the court if the same is raised. Further ad^dsed therefore that the certilicate of the Secretary need not contain a statement that the rec- ords were records of the War Department — as an executive depart- ment of the Government — within the meaning of the statute. Card 1^70, January, 1896. But held that the "engineer offices in the department at large" may be considered a part of an executive depart- ment within the meaning of this statute. Card 7912, April., 1900. ORDER— IN GENERAL. 1847. General or special orders relating to the army, issued from the AVar Department by the Secretary" of War or b}^ his direction, are to be presumed to be made by the authority of the President, and to be viewed as his orders equall}" as if he had subscribed the same. VIII, 297, A2jnl, ISGJ^. See § 2294, p}08t. 1848. No precise rule can be laid down as to when a military order, affecting the status, pay, rights, or duties of an officer, can l)e said to become operative as regards himself. A general principle, analogous to that of the law of o) at ice, should ordinarily be applied to the cases, and the order be treated as not legalh" taking effect until the officer is personally' officially notified of the same. In the absence of an actual personal delivery to or receipt by him of the order or an official copy, the fact of the pronuilgation or receipt of the same at his proper mili- tar}' station, will in general l)e presumed to have given him official notice of its contents — a presumption, however, liable to be reljutted by proof that, without any fault or negligence of his own, knowledge of the same Avas never actually Ijrought home to him, — as where, for example, he was at the time absent on leave, or ill at a distant hos- pital, or a prisoner in the hands of the enemy, and therefore was not notified in fact. The notice of the order, to affect the officer, should thus be a pe^'sonal notice, actual or constructive, and it should be an official notice. XII. 230, and XIII, 284, 335, Janxary, 1865; XIX, 516 ORDER IN GENERAL. 696, October, 1866; XXII, 506, Deceml>e,\ 1866: XXVIII, 423, 426, March, 1869; XXX, 4S1, Juhj, 1870; XXXI Y, 364, July, 187 J; 49, 91, 176, Septemler, 1891; 65, 289, Jims, 1891^. Where indeed the officer fails to receive personal official notice by reason of some fault or neglect of his own, as because of his having absented himself without authority from his station when the order arrived, or because, being on detached service, he has not duly advised the Adjutant General of his address as required 1)y the Army Regula- tions, he will not be permitted to take advantage of his own wrong; and the receipt of the order at his proper station or last reported station, will be held to operate as due and effectual, or constructive, notice. XXXI, 327; Apnl, 1871; 65, 289, June, 189 J^; Card 1289, Ajyrlh 1895. 1849. Up to the date of personal official notice of an order separa- ting him from the military service — as an order of summary dismissal by the President, or an order "wholly retiring"" him, or an order confirming a sentence of dismissal adjudged by a court martial — an officer is entitled to be paid by the United States the regular and legal pay and allowances of his rank.^ XXII, 506, Beceruher, 1866; XXIX. ll'o, July, 1869; XXXI, 216, 327, March and April, 1871; XXXV, 178, Felyruary, 187 If.. The date which the order bears, as that of the issuing or signing of the same, is immaterial, if notice of the same is not duly brought home to the officer till on a subsequent day. XXXI, 216,J/«rc7/, 1871; 49, 91, 176, Septernhtr, 1891. 1850. An order affecting a military person becomes operative as to such person when he has received military notice of its existence and contents; that is if the order be general in character it l)ecome8 opera- tive when it has been formally promulgated to the command to which it pertains: if it be special or individual in its operation it l)ecomes effective when it has been served upon, or received, by such person through the usual military channels." It may be regarded as an esta))lished practice in our service that the date of receipt of a general order l\v a connnand is the date on which it takes effect as to that com- mand. It is not necessary to go further and attempt to trace the general order to each individual. Such a general order is not unlike a statute of general character, in that it puts forth a binding general rule of action, intended for the guidance of a whole community, and when no other date is indicated, the date of the order is the date when it tiikes effect;'' but the custom of the service (established practice) ^See 7 Comp. Dec. (dated March IH, 1901). - Davi^^'s Military Law, 382. •'This refern to the rule that, except when otherwise provided by Constitution or statute, a statute takes effect on its passage, as in the case of an act of Congress. ORDER— IN GENERAL. 517 which it must be remembered has the force of hiw/ modifies this, to the extent stated above, but to that extent only. This custom of the service is a modilication of tlie principle that no military person can plead ignorance of military law (including* regulations), and were it not for this modilication the principle in all its severity would be legally applicable. When the date of the receipt of the general order by the conmiand cannot be ascertained, the only fixed date that there is, namely the date of the order, should be taken as the date when it took effect, particularly in cases where the general orders affect the military histor}" of soldiers in the past and a fact of that past history is to be determined; but a soldier can not be held criminally responsible under a general order after its date, but before knowledge of it could have reached the command to which he belonged. Card 8962, Septemher^ 1900. 1851. An order cannot create a fact to-day and carry it back to some date, and there set it up as a fact occurring on that date, whereas in reality no such fact then occurred. But care should be taken to dis- tinguish between such an impossibility and a legally retroactive execu- tive order or regulation, as when a thing is done without the approval of the Secretar}^ of War, his approval being required, and he subse- quently ratifies the thing done.*^ Between such action as this and the 1 84th A. W. ; Winthrop Military L. & P. 42, 438; Davis's Military Law, 10; De Hart, 164; Benet, 119. In the Regulations for the British Army it is laid down that "ignorance of pub- lished orders will never be admitted as an excuse for their non-o])servance" ; but in that service the regulations in reference to the pronuilgation of orders are more specific tlian ours. They require, among other things, that all orders specially rela- ting to the soldiers are to be read and explained to them immediately after such orders are received and those of an important nature are to be read to them on three successive j)arades. ^This is certainly correct, but it would be well to notice that the instance of a legal ratification which is given does not cover the whole subject. There are acts which "neither statute nor regulation authorizes an officer to do subject to the approval of a higher authoi'ity, l;)ut which, when done by him, may be validated by ratification; and it would pr((l»al)ly be useful to determine what kind of acts these are. The ]irincii)al rule to be laid down in this regard would seem to be that the act must be one power to do which the higher authority might legally delegate to the inferior at the time of the ratification and might have delegated at the time the act was done. If the superior authority could not thus delegate the power he could not ratify the act. He could not ratify an act which he had no authority to do himself; tluis, he could not ratify an act violating a law. And another restriction arises out of the character of the act, whether ministerial or judicial or discretionary. Judicial power and also such power as is by law entrusted to the discretion of the superior authority cannot be delegated by him to another, nor can he ratify such an act when done by the other. Such at least would seem to be the strict rule in the relation of the sujierior officer and subordinate. As stated bv Mechem (Mechem on Public Officers, § 567) : "In tiiose cases in which the proper execution of the office requires, on the jiart of the officer, the exercise of judgment or discretion, the presumption is that he was chosen because he was deemed fit and competent to exercise that judgment and dis- cretion, and, unless power to substitute another in his place has been given to him, he cainiot well, .s■'/y;;■(^• ]\Iilligan r. Hovev, 3 Bissell, 13; Beck with v. Bean, 8 Otto, 266. ORDER IN GENERAL. 519 where sit first blush, it is apparent and palpable to the commonest understanding that the order is illegal, I cannot but think that the law should excuse the military subordinate when acting in obedience to the orders of his commander. The first duty of a soldier is obedience, and without this there can be neither discipline nor efficiency in the army. If every subordinate officer and soldier were at liberty to ques- tion the legality of the orders of the commander, and obey them or not, as they may consider them valid or invalid, the camp would be turned into a debating school, where the precious moment for action would be wasted in wordy conflicts between the advocates of conflicting opin- ions". While this may be true as applied to criminal cases (although McCall V. McDowell was a civil case), it certainly is not correct in civil cases". See Bates v. Clark, 95 IT. S. 204, in which the Supreme Court held in a civil suit for damages as follows: "It is a sufficient answer to the plea, that the defendants were subordinate officers acting under orders of a superior, to sa}' that whatever may be the rule in time of War and in the presence of actual hostilities, military officers can no more protect themselves than civilians in time of peace by orders emanating from a source which is itself without authorit3%"^ Card 7500, June, 1900. 1854. An order from the War Department assigning a certain officer to a duty (acting judge-advocate) in lieu of another named, relieves the latter and his detail ends with the date of such assignment. That the commander of the department in which he was serving omits at the time to issue the usual order relieving him does not afiect his status, or entitle him to be paid, as of the special rank of the detail, up to a subsequent date when the department commander did actually issue such an order. He was relieved In fact hj the original order of assignment of a successor when the latter entered upon the duty under the order. 52, 499, 3farch, 189^. 1855. A post commanded issued an order to the eflect that any offi- cei' of the command whose explanation of an absence from a roll-call should not be satisfactory should l)e restricted to the limits of the post, except w^hen permitted to absent himself upon a written applica- tion for such absence approved by the commander. Held a legal order, not an arbitrary exercise of a disciplinary punishment. LV, 391 JA//'r//, 1888. 1856. Where a post commander issued an order allowing the soldiers ^ But that officers and soldiers of the United States who, in good faith without any criminal intent, but with an honest purpose to perform a supposed duty as soldiers under the law of the United States, act in obedience to an order, the illegality of which is not apparent and pal[)able to the commonest understanding, are not liable to prosecution under the criminal laws of a state, see further the case of Fair cited in the text. See also U. S. v. Clark, 31 Fed. Rep., 710. 520 ORDER OF PROIVHTLGATION. of his command between certain hours, when '•offdut}'," limits extend- ing' one mile beyond the military reservation, and forbidding them to enter or patronize within said limits gaml)ling houses, saloons, etc., lidd that he did not exceed his authority in the matter. Card 1210, A^il, 1895. ORDER— CONVENING A COURT MARTIAL. 1857. Held that the fact that the order convening a court martial was dated on a Sunday did not affect the validity of the proceedings in a case tried by the court under such order. XXXVII, 317, Fi'hru- ary^ 1876. 1858. 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 officer 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 officer describing himself as commanding a "post" or "district" yf^2i^ jmtna facie 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, 162, 170, 176, 214, Novemler and December, 1861^; XXVI, 510, April, 1868. 1859. It is not a material objection to the validity of the proceedings 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. XXXV, 133, June. 1871^. ORDER— OF PROMULGATION. 1860. Where a general court martiai nas had two presidents, it is innnaterial whether the first or the second is mentioned in describing and identifving the court in the caption of the order promulgating its proceedings. It is not indeed necessary to indicate the president at all. XIII, 321, Fehruary, 1865. Nor is it necessar}- that such an order should set forth the specifications to the charges; nor — though this IS usual, where the business of the court is completed — that it 'The order should properly indicate for what trial or class of trials the court is convened, or its terms should be so general in this particular as to authorize tiie court to entertain any case that may be referred to it for trial. A court, restricted by the order convening it to the trial of a special case or class of cases, would not be empowered (in the alxence of further orders) to take cognizance of a case not within such designation. See G. O. 106, Army of the Potomac, 18t)2, where the proceedings of a court niartial in a case of a private soldier were disapproved as without jurisclic- tion, because the convening order had authorized the court to try the cases only of such olficers as might be l)rought before it. ORDNANCE DEPARTMENT. 521 should fonnall}" dissolve the court. Ill, 84, J'ane^ 1863. An order of promulgation, indeed, is a mere forin^ habitual as a means of com- municating the proceedings or their result to the army, for the sake of <'onvenience and example, and of making a summary memorandum of the same, but not necessary to the validity of proceedings or sentence.* Though no such order is issued in a case, the proceedings or sentence in the same will be formally complete and fully operative, if the official action thereon of the reviewing authority lie dul}' endorsed upon or appended to the record, and actual or constructive notice thereof is given to the party affected. XXXII, 102, November, 1871; ei\ 1890. 1886. An invention is property though it be not patented, and an injunction will be granted to restrain an infringement though the pat- ent has been merely applied for. Thus it is safer for the United States not to purchase the right to use an invented article from an}' person other than the inventor, since a liability to the latter might thus attach.* 43, 264, Octohei'., 1890. Held that, shoukl the (xovernment make a pur- chase — from a person other than the inventor but claiming to be such — 1 Osborne v. Glazier, 31 Fed. Rep. 402. ^McKeever v. U. S., 18 Ct. Cls. 757. ^Cantrell v. Wallick, 117 U. S., 695. *See James v. Campbell, 104 U. S., 356. PATENT. 529 of telephones, the sale of which had been enjoined by the real patentee, the United States would be liable to him in damages, whether or not the fact of infringement or illegal sale was actually known at the time of the purchase. 57, 297, January^ 1893. The Government becomes a tort-feasor in permitting the use in its service of an infringed patent.^ Card 725, Decemlei\ 189J^. 1887. Held, on the authority of the ruling of the Supreme Court in Major Burns' case,^ that Capt. E. L. Zalinski, 5th Artillery, was entitled to compensation for the use by the United States of his patented pneu- matic gun. 31, 106, Ifarch, 1889. 1888. The assignment to the United States of a patent right, for use in the public service, does not preclude the assignor from also assign- ing the right to a foreign government, provided the original assign- ment were not absolute in its terms. A sale of patent right for use in one district is not incompatible with a sale for use in another, such sales being in the nature of independent licenses. But, as a general rule, the United States should accept in such a ease nothing short of an absolute assignment. 54, 21-i, June., 1892. 1889. The United States cannot be sued in the courts for the profits accruing to it by reason of the manufacture and use of a patented article, unless there is either an express or implied contract for such manufacture and use; nor, where the article is being manufactured under the direction of the War Department, has that department jurisdiction over such a claim. In the absence of such jurisdiction, the claim cannot be said to be '''pending" in that department within the meaning of section 12, of the act of March 3, 1887. Card 3392, July, 1897. 1890. The United States should not refrain from purchasing neces- sarj- supplies simpl}" because there might be involved in the transaction an infringement of some one's patent. In such a case, however, a bond should be required to indemnify the United States against any loss it might sustain on account of possible infringment of patents in the use of the article purchased. Card 4558, July., 1898. 1891. While it is clearly a violation of law (act of February 18, 1893, 27 Stats., 461) for the inventor of a device (range finder) con- sidered and adopted b}^ the Board of Ordnance and Fortification " to ben member or serve on said board", the act does not, where he has in fact so served, prohibit the purchase of the instrument invented by him. It merely affects his eligibility for membership of or service on the board. Card 6941, Augunt., 1899. 1 See SchilliMger v. U. S., 155 U. S., 163. '' U. S. v. Burns, 12 Wallace, 246. 16906—01 34 530 • PAY AND ALLOWANCES. PAY ACCOUNT. 1892. An officer's "pay account" is not commercial paper, but, in its legal aspect, a mere receipt.^ So held that a hona fide assignee of an officer's pay account for a certain month, who, on receiving paj^- ment 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 o))ligation of an endorser, or render himself liable as such for the amount to the paymaster, on its being ascertained that the officer had already himself drawn his pay for that month, and that a double pay- ment had thus been made. XLIII, 68, October^ 1879. 1893. ILAd that it was no sufficient defence to a charge, under Art. 60 or Art. 61, of duplication of a pay account, that the accused had an understanding with the first assignee that he was not to present the account assigned to him till the accused should have an opportunity to w^ithdraw it and substitute other security. The fact that an accused assigns a second account, while the first, without the knowledge of the second assignee, is still outstanding in the hands of the first assignee, completes the offence. 50, 45, 219, Octoher and November, 1891. PAY AND ALLOWANCES. . I — In General. 1894. Pa}^ is the monthly pecuniary compensation of officers and soldiers of the army,'^ as fixed by Sees. 1261, 1280, &c., Rev. Sts. It is quite distinct from " allowances."^ A sentence forfeiting pay does not affect allowances or vice versa. II, 193, April., 1863; VIII, 578, June, 186 J^; X, 565, Novemhei^ 186 J^; XXXII, 41, October, 1871; Card. 1042, Fehruary, 1895. 1895. The right to pay begins and ends with the period of legal serv- ice. P^xcept b}^ special authority of Congress, an officer or soldier cannot be paid for military service rendered before appointment, enlistment or muster-in. XXXVIII, 120, July, 1876. A soldier, however, who, by accident or through some exigency of the service, is held to service for a period after the date on which his term of enlist- ment expired, is properly entitled to be paid for such additional period. XXIX, 424, Novemher, 1869,- XXXVIII, 662, July, 1877. So, a soldier, detained in the service, after his term of enlistment has expired, by reason of the pendency of proceedings under charges pre- ' Note in this connection the opinion of the Attorney General, in 16 Opins., 191, to the effect that an approved acconnt or voucher issued to a contractor for an amount due hiiu under his contract is " not in any proper sense negotiable paper." ^"It is the intention of the law" (see See. 1189, Rev. .Sts.) "that the pay of the army should not be in arrears more than two months." 15 Opins. At. Gen. 209. *See 10 Opins. At. Gen. 285; McNaghten, 27. PAY AND ALLOWANCES. 531 ferred ag-ainst him, and who, upon trial, is acquitted, or sentenced to a punishment not including- forfeiture of pay, and is thereupon dis- charged, — is entitled to be paid up to the date of discharge. XXI, 448, June^ 1866. An officer separated from the service by dismissal, being dropped for desertion, "wholl}^" retired, or by 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, March, 1869\ XXX, 549, August, 1870. An officer or soldier cannot be dismissed, discharged, or mustered out as of a prior date, with the effect of depriving him of pa}^ accrued between that date and the date of the actual discharge, &c.' XVI, 406, Jidtj, 1865; XXII, 506, December, 1866. 1896. While he remains in the military establishment, an officer or soldier, whether or not actually performing military service, can be deprived of his legal pay, only through a duly adjudged and approved sentence oi court martial, or by the ojyeration oflcmi under some express statutory enactment or army regulation.^ The fact that an officer or soldier is under charges, in arrest, or waiting sentence, cannot (except in so far as his case may be within the application of army regula- tions, see § 1902, jposf) affect in any manner his right to the regular pay of his rank.^ XII, 230, January, 1865. 1897. A sentence expressl}^ forfeiting all pay due a soldier applies only to pay due him under his pending contract. It will not affect pay which may be due for service rendered under a previous enlist- ment and not yet settled. XIV, 371, Ajjril, 1865; XLII, 73, Decem- her, 1878. 1898. 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 portion, unauthorized and inopera- tive. X, 216, August, 186^; XLII, 73, Decemher, 1878; 470, January, 1880. So where a legal muster into service of a volunteer officer was revoked by order, after an interval of service rendered, with the effect (given to the order) of depriving him of pay for such service, held that the so-called revocation was unauthorized and inoperative. A ' See Allstaedt v. United States, 3 Ct. Cls. 284; 7 Comp. Dec. (dated March 16, 1901). See §§ 1848 and 1849, ante. On the other hand, where an officer, who has been dismissed, is restored (by the authority of Congress) to office with the rank which he had when dismissed, or other rank of a date prior to the restoration, he is not thereby entitled to back pay. In such cases, in tlie absence of any grant of pay in the statute, "the relation back is for rank only, not pay." 4 Opins. At. Gen., H08;,5?d. 101,132;9ic?. 137. - See, to the same effect, the opinion of the Attorney General in 15 Opins. 175, and, on the general principle that jjo;/ cannot be forfeited by implication, see § 1380, ante. ■' See § 509, ante. 532 PAY AND ALLOWANCES. legal executive act cannot be thus nullitied to the prejudice of a vested right. XLll, -iTO, mjrni. 1899. An officer or soldier cannot be deprived of his pay by means of an}' civil process of attachment or levy on execution. So where a wife, in an action of divorce against her husl)and, a captain in the United States service, obtained an interlocutory judgment for an allowance pendente lite — Jield^ that there was no precedent or legal ground for requiring him to satisfy the amount of such judgment out of his pay. VIII, 493, 2[ay, ISGJf. 1900. The Secretary of War is without authority to appropriate or stop an officer's pay for the use of his family, or to satisfy a judgment or decree of a civil court growing out of an obligation of a private character. But he may of course cause such officer to be brought to trial by court martial for dishonorable conduct in the treatment of his family or with respect to the obligation referred to. Cards 3500, Septemher, 1897; 3819, Janunry, 1898; 54:82, December, 1898; 6882, AngKst, 1899. Nor in the case of a retired officer, alleged to be irresponsil:)le, has the Secretary of War authority to designate a person to receive and distribute such officer's pay. In such case, the appointment of a guardian ]>y the proper court should be secured by the parties interested. Card 4036, Jidy, 1898. 1901. By operation of law, indeed, under certain express statutory 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. 1265, Rev. Sts., an officer absent without leave forfeits all pav during the period of his absence, unless the same be excused as luiavoidable. By Sec. 1266, an officer dropped from the rolls for an unauthorized absence of three months is required to ''forfeit all pa}' due or to become due.'' Sec. 1766 prohibits the payment of his compensation to any person while he continues "in arrears to the United States." Sees. 1303 and 13(»4 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, 156, March, 1878. 1902. So, by pars. 132 and 1514, Army Regulations (132, 133, and 1381 of 1895),' it is directed that no enlisted man shall receive pay or allowances for any time during which he has been absent without leave; and, further, that a deserter shall forfeit all pay and allowances due him at the time of his desertion. These forfeitures are incurred by operation of law, upon the conunission of the offence, independently of any punishment for the same by sentence of court martial, audit is not essential to their taking effect that the offence should have been 1 See pars. 143, 144, and 1558, A. R. of 1901. PAY AND ALLOWANCES. 583 found l)y a military court. In general, however, the}" cannot safely l)e enforced in the absence of an ascertainment of the guilt of the party by a trial and conviction. Only such pay is affected by these regulations as is expressh' specitied therein. Thus a deserter forfeits both pay due at the time of his offence and pay for the period of his anauthorized absence, so that, upon his apprehension or surrender, nothing whatever is due him. But here the forfeiture 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 for- feiture of pay due, he will be entitled to his pay (less any legal stop- pages 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 executed forth- with, or — the sentence not imposing such punishment — an honorable discharge given him in the usual manner after a further period of service. VIII, 650, July, 1861^; XXI, 433, June, 1866; XXIII, 160, August, 1866; XXIV, 26, m>vemher, 1866; XXXIX, 369, December, 1877. A. R. 129 (140 of 1901) 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 for- feited bj^ the sentence of the court. XXI, 433, June, 1866. So cloth- ing allowance accruing to him from the date of his surrender or delivery to the military authorities is not forfeited, unless the sentence so provides. Card 4937, September, 1898. 1903. An officer or soldier brought to trial for desertion, and con- victed of absence without leave, but whose conviction has been dlsajj- proved by the competent reviewing authority, cannot be subjected to any of these forfeitures. VIII, 519, June, I86J1.. A full acquittal of desertion includes, of course, an acquittal of the offence of absence- without-leave included in the desertion. XXXVII, 509, May, 1876. So far as any military offence involved in the matter is concerned, the soldier's record is absolutel}' clean, but if it duly appears on the proper rolls that he was in fact absent without authority through his OAvn fault during the period of the alleged desertion, there has been a breach of contract on his part, due to his failure to furnish the service which he contracted to furnish. The pay and allowances that accrued during such unauthorized absence should therefore be withheld from him.^ Card 1494, June, 1895. ^When the proceedings of a court martial are disapproved by the reviewing authority, the soldier cannot legally be sul)jected to the forfeitures attached to the crime with which he is charged. In cases of deserters [whose convictions (sen- tences) have been disapproved] the charge of desertion will be removed; the fact of absence from the service, however, remains, and the soldier should not be paid for the period during which he was absent, and should make good the time lost, as required by par. 21 7, A. R. of 1881 ( 142 of 1901). Circular 2, A. G. 0., 1885. 534 PAY AND ALLOWANCES. 1904. A captain having been mustered out of the service, as a super- numerary, with one years 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 second lieutenant, and thereupon required to submit to a stoppage against his pay, as such lieutenant, of the said extra pay. The Attorney General having subsequentlv decided that this requirement was unauthorized in law,^ Congress was induced to pass an act — approved March 3, 1875— specificially providing that officers mustered out as supernumerary should be required, upon re-appoint- ment, 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 (XXXVI, 355; Aprils 187 5)\ 2d, that it applied only to officers mus- tered out as supernumerary under sec. 12 of the act of 1870, and not to officers honorably discharged upon their own application b}- the authority of sec. 3 of the same, these latter constituting a separate and distinct class from the supernumerar}^ officers.'^ XXXVII, 650; June^ 1876. 1905. It is within the authority of Congress to i^educe the pay or allowances of officers or soldiers at any time during their period of service or enlistment. XXXII, 611, May^ 1872. But this of course cannot be done by military or executive authority,^ nor can a soldier's paj" be uHthheld except in pursuance of law or sentence. Thus held that a commanding officer was not authorized to withhold a soldier's pay on the theory that if paid he would probably desert. XXX, 356, May, 1870. 1906. Held that an officer ordered to his home to await orders did not occupy the status of an officer on leave of absence, and was not therefore on half pay during the period of thus awaiting orders, but was entitled for such period to the full pay of his rank.* XXXI, 599, August, 1871. An officer relieved from dut}" and placed on "waiting orders," by the direction of the Secretary of War, is not liable to loss of pay by reason of such status. 63, 106, Deceniber^ 1893. 1907. Held that Sec. 1262, Rev. Sts., in providing for a certain n4 0pins., 230. '■^8ee the contirmatorj' opinion of the Attorney General, in 15 Opins., 177. ' "It is not within the power of the executive department, or any branch of it, 'to reduce the pav of an officer of the arm v." United States v. Williamson, 23 Wallace, 416. *This opinion was affinned, in the same case (United States v. Williamson) by the Court of C'laims, in 1873 (9 Ct. Cls., 503), and bv the Supreme Court, in the next year (23 Wallace, 411). But in United States c Phisterer, 4 Otto, 219, it was held that an officer, ordered to his home to await orders, was not entitled to conumiMion for quarters tmdfuel, his home not being a "station" in the sense of par. 1080,Anny liegulations. See G. O. 78, Hdcjrs. of Army, 1877, issued in consecjuence of this decision. But see the case of United States r. Lippitt, 10 Otto, 663, where the officer was ordered to the headquarters of a military department, to await orders. PAY AND ALLOWANCES. 535 increase of pay for officers on account of duration of service, referred to service in the army, and that a period during which a certain officer had served in the nai^y could not legall}' be included in computing his ;,(ars of service under this statute. XLI, 234, May^ 1878. 1908. Held that medical cadets^ — in view of the terms of the statute (act of Aug. 3, 1861, c. 42, s. 5), authorizing their employment in the military service, — though not private soldiers 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 "longevity" pay under Sec. 1262, Rev. Sts. XLIII, 196, Feb- rnary., 1880. 1909. The act of July 17, 1862, c. 200, s. 1, allowed to officers assigned to duty which required them to be mounted certain increased pay. So, Sec. 1261, Rev. Sts., entitles captains and lieu- tenants, when "mounted," to receive respectively two hundred and one hundred dollars 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 required of them should make it absolutely necessary that they should be mounted; but that it was, and is, sufficient if these duties were, or are, such as are usually and appropriately performed by mounted officers, and such as can not be performed effectively or without material embarrassment and incon- venience to the service except by such officers;^ and further that the certificate of the proper commander of an officer (as of the Chief Signal Officer in a case of an officer engaged in signal duty, or of the Superintendent at West Point in a case of an acting quartermaster stationed at that post) that the duties of the officer properly required (in the sense above indicated) that he should be mounted, would (the Secretary of War approving) be sufficient to entitle him to receive the additional pay.^ XXVI, 678, July, 1868; XXIX, 50, Jime, 1869. Held that a captain or lieutenant, not mounted, detailed as a profes- sor in a college under Sec. 1225, Rev. Sts., was not entitled to mounted pay. XXXIX, 475, March, 1878. Similarly heldv^'ith respect to such officer when on duty as Indian agent under the act of June 13, 1893.^ Card 1483, June, 1895. 1910. Sec. 1261, Rev. Sts., in fi,xing the pay of officers, provides that ^Note, in this connection, the construction, in Griswold v. Hepburn, 2 Duvall, 20, of the provision in Art. I, Sec. 8 clause 18, of the Constitution, that Congress shall have the power "to make all laws which shall be neeessar)/," &c., for the execution of its special powers — as meaning not indispensable but appropriate and conducive to the j)urpose. ^See the recent G. O. 146, A. G. O., 1899, as to officers entitled to mounted pay. 'See Circular 19, A. G. O., 1893. 530 PAY AND ALLOWANCES. an "acting assistant commissary" shall ])e paid "one hundred dollars- a year in addition to the pay of his rank." The statute does not pre- scrilie that the officer thus "acting" shall have any particular rank, nor is there any such an office in the army as "assistant commissar3^" Held therefore, that "acting assistant commissar}^," as here used, was a name for, or description of, a duty^ not an oflSice; that a captain was as legally eligible to l)e detailed on the duty of an acting assistant com- missar}' as was a lieutenant; and therefore that a certain captain who had been thus detailed was entitled to the additional pay specified 1)y the statute. XLI, 217, Apr'd, 187S. 1911. Held that the additional pay upon re-enlistment, accorded to sol- diers by Sec. 1284:, Rev, Sts., was intended as a compensation for long and continued military service, without reference to the kind of service or the corps in which it was rendered; and therefore that, where this additional pay had once begun to accrue .to a soldier by reason of his having entered, in accordance with the provisions of the section, upon a second term of five years' service in the infantry, his continued right to the same was not interrupted by his l)eing discharged from the infantry and (on the next day) enlisted in the ordnance corps.. XLII, 283, Jfay, 1879. But service as an officer of volunteers cannot be com- puted as continuous ' service within the meaning of Sec. 1284, Rev. Sts. , that statute contemplating service as an enlisted man and not as a coumiissioned officer. Card 6039, March., 1899. 1912. Sees. 1282 and 1284 Rev. Sts., as amended by the act of August 1, 1894 (28 Stats., 215), prescribe that the enlistment shall be within three months after the discharge to entitle the soldier to the continuous service pay provided for therein. Held that this term cannot be legally extended 1)}' the executive authorities for an}' cause whatever. Card 6120, 21e>\ 1897. The advances which the Presi- dent may direct under this statute are limited to persons in the military and naval service, and therefore cannot be authorized in the case of a civilian clerk in the employ of the Government. Card 3809, January., 1898. Ill— Pay of Enlisted Men. 1928. Held that an enlisted man had no claim for his paj^ for a period during which he was detained by the civil authorities in arrest and for trial, although his offence was shown to have been a slight one and he was convicted of an offence of much less gravity than that wnth which he was charged.- 38, 154, January., 1890. 1929. Held that the Army Appropriation Act of Feb. 27, 1893, in changing and fixing the pay of first sergeants and sergeants, had ref- erence to those of the line of the army, and did not include sergeants of the engineer or ordnance corps. 59, 89, A2?ril, 1893. 1930. A soldier discharged "without honor," on account of fraudu- lent enlistment, is not entitled to pay accrued before such enlistment was discovered and he was discharged.^ 63, 436, February., 189 Jf. 1931. Two discharged soldiers were brought to trial under the last clause of Art. 60, and one was acquitted, and the other was convicted but his sentence was disapproved. They applied for pay for the period spent in confinement awaiting trial and final action. Held' that there was no law authorizing their being paid for such period. 63, 178, 179, January, 189 Ip. i4Comp. Dec, 250. ^Asto the "pay status of (officers and) enlisted men withdrawn from duty by arrest and confinement by the civil authorities," see A. R.,2399 of 1881; G. O., 46, A. (t. O., 1891; and A. R., 1314 of 1895 (1464 of 1901). *But that he cannot legally be re(|uired to refund money i)aid for service under a fraudulent enlistment, see § 1415, anU. PAY AND ALLOWANCES. 541 1932. Pay for certitioate of merit, like pa}" for continuous service, has always been held to be a part of the soldier's pay and included in computation of travel pay. Card 1308, April., 1895. 1933. A competent court of the State of California appointed a guard- ian of the person and estate of a retired enlisted man of the United States Army, resident in that State, who had been duly found to be an incompetent. To avoid the order of the court the latter left the State and requested that a paymaster outside the State make payment to him. Held that his pay could legally be delivered to the guardian.^ Card 3676, Novemler, 1897. IV — Retained Fay.^ 1934. The act of June 16, 1890, in prescribing the retention of four dollars of the monthly pay of each enlisted man for the first year of enlistment, to be forfeited unless he serves honestly and faithfully to the date of discharge, provides "that the Secretary of War shall determine what misconduct shall constitute a failure to render honest and faithful service within the meaning of this act." Held that the Secretary was not concluded b}" the finding on this subject of a board of officers ordered under G. O. 56 of 1891. If not satisfied with such finding he may convene another board or he may decide the matter contrary to the view of the board. Under the act, if the usual machinery fail to secure a just and reasonable conclusion, he must determine the question for himself. 58, 23, February., 1893. 1935. Where a conviction and sentence for desertion were approved but the sentence was remitted, held that the right of the soldier to the retained pay forfeited by the desertion was not revived. And simi- larly held where the deserter was merely restored to dut}^ without trial under the Army Regulations; but where a sentence for desertion has been disapproved there can be no forfeiture of retained pay. 50, 121, 122, 3farch, 1886. 1936. Held that the term — ''for the first year of his enlistment," in the act of June 16, 1890, referred to the first j^ear of an original enlistment, and did not include a case of re-enlistment; that therefore the provision of the act in regard to retained pa}^ did not apph^ to the ''army service men" of the Quartermaster Department at West Point, a detachment composed entirely of re-enlisted men. 47, 95, 3£ay, 1891. 1937. Under par. 2454, A. R. (1369 of 1895), the retained pay is for- feited b}^ a sentence imposing dishonorable discharge, whether or not ' Concurred in bv the Comptroller under date of January 8, 1898. ^Retained pay was abolished by act of March 16, 1896 (29 Stats., 60). 542 PAY AND ALLOWANCES. there be au express forfeiture of such pay added in the sentence. LI. 449, February, 1887. 1938. A sentence of forfeiture of "all pay due and to become due" includes and forfeits the retained pay. 30, 415, Fehriiary^ 1889. 1939. IRId that the act of June 16, 1890, s. 1, was evidently a pro- vision in regard to soldiers as such, and did not include general serv- ice clerks and messengers or Indian scouts, whose pay was therefore not retained thereb3\ 42, 93, July, 1890. 1940. Held that the retained pay of deserters was included in the '•forfeitures on account of desertion," appropriated, by Sec. 4818, Rev. Sts., "for the support of the Soldiers' Home." 60, 13; June, 1893; 61, 486, October, 1893. V — Allowances of Officers. 1941. Held, that the Secretary of War was not empowered to increase the existing allowance for commutation of quarters. Congress has covered the ground and tixed the allowance — as to the number of rooms by the act of June 18, 1878, adopting the then existing regu- lations on the subject; and as to the amount to be paid for each room ($12) l)y the act of June 23, 1879. 62, 100, October, 1893. 1942. Held that the regulations, pars. 1480 et 6't;^. , providing for the payment of the allowance of commutation of quarters, did not extend to the case of retired oflicers ordered as witnesses before a court martial. Such order did not place them on duty in such a sense as to entitle them to increased emoluments. 50, 340, Novernher, 1891. 1943. An officer of the army, acting as Indian agent, occupied as his quarters, without rent, a house at the agency, placed at his dis- posal for the purpose l)}^ the Interior Department. Held that he was not entitled to commutation of quarters. Moreover the appropria- tion in the Army Appropriation Act for commutation of quarters is for "officers on duty," &c., and par. 1480, A. R. (1489 of 1901), is to a similar effect. Further hdd therefore that this "dut}^" meant mili- tary duty, and did not include duty as an Indian agent under the act of June 13, 1893, which, in authorizing the detail of officers of the army as Indian agents, detaches them from military service and dut}- for the time being, and places them "under the orders and direction of the Secretary of the Interior." ^ 64, 121, March, 189I{.. ^ See the case of U. S. v. Dempsey, decided 8ept. 28, 1900, by the U. S. Circ. Court, L\ Montana (104 Fed. Rep., 197), in which the court held — 1. That under par. 1480, Army Regulations, Avhich provides that "officers on duty, without troops, at stations where there are no public quarters, are entitled to coin- nuitation therefor", any suitable quarters i)rovided by the Government for the u.>*e of an officer answer the requirement for "public cjuarters," though not expressly built for army officers; and an officer assigned to duty as an Indian agent, and fur- PAY AND ALLOWANCES. 543 1944. In view of the provisions of successive appropriation acts impliedly restricting the selling b}^ the United States of material for fuel and light, to sales to ''officers," and of the previous practice to the effect in the War Department, held that such sales should not be permitted to be made to other classes of persons until Congress shall have so authorized. 58, 470, April., 1893. 1945. Held that an officer who applied for and procured to be terminated a temporary' status of detached service on which he had been placed, and thereupon rejoined his station and regiment, did not, properly speaking, effect a change of station at his own request in the sense of par. 1478, A. R. (1889), and should not therefore be denied the usual mileage and cost of transportation. 62, 152, Odoher., 1893. An officer whose batter}- was ordered to change station, was duly author- ized, on account of sickness in his family, to dela}' changing and joining the batter\- for some sixteen days. Held that he was entitled, on thus joining his battery at the new station, to be paid the usual traveling allowances. He might be viewed as duly complying with the original order, not indeed on the daj' named but after a rea- sonable delay acquiesced in by his proper militar}- superioi's. Or, if viewed as on leave during the period of delay, he would be entitled to the allowance under par. 1474, A. R., as amended by G. O. 55 of 1891; the leave merely suspending a right which was revived on its expira- tion. 60, 436, Jidy, 1893. 1946. An officer, only a few days before the expiration of a two months' leave of absence, was placed on a duty which kept him on duty an entire month ])e3'ond the end of his original leave, and was then ordered to rejoin his station. To hold that he then reverted to the status of being on leave would be too technical and not reasonable. The order should be treated like any other order involving return travel after performance of duty and be held to authorize the allowance of the usual mileage and cost of transportation. 58, 475, Aprils 1893. 1947. By an order of the President, of 1892, a special command, inde- pendently of any department commander, of all troops on escort duty with the International Boundary Commission, was devolved upon a lieutenant colonel of engineers. Held that his order, requiring travel on duty by an officer of the command, entitled such officer to the usual nished a s^uitable building on the reservation for his quarters, without charge, is not entitled to receive commutation for quarters. 2. That where an army paymaster has paid an officer a sum as a commutation allowance through an error of law, the United States is not bound by such payment, and may recover the money so paid in a proper action, with interest from the date when the officer's accounts were settled by the Treasury Department, at the rate established by the laws of the State in which the action is brought, citing in support of the latter, McElrath v. U. S., 102 U. S., 441; Wisconsin Central R. Co. v. U. S.,164 id, 190. 544 PAY AND ALLOWANCES. travel alloirances, equally as would a similar order issued by a depart- ment commander. 57, 357, January^ 1893. 1948. In view of the transfer of the meteorological servdce from the War to the Agricultural Department, held that an officer of the army, on temporary duty to assist the Secretary of Agriculture in initiating the service in his department, under the act of Congress making the transfer, could not be ordered from Washington on meteorological duty at San Francisco, under a military order in the nature of an order changing station, with the eifect of entitling him to the statutory travel allowances. Such an order, being one on civil service, would not cover a military allowance, and could not legally be issued. 53, 83, April., 1892. Also, held that an order relieving a lieutenant of the army from temporary dut}' with the Weather Bureau of the Agricultural Depart- ment, and directing him to join his post and company, did not, in a military sense, effect a change of station in his case, and that he was not therefore entitled to change of station allowance of baggage from Washington to such post. 57, 273, January., 1893. 1949. The act of August 15, 1876, "to regulate the use of artificial limbs,"" provides that ''necessary transportation, to have artificial limbs fitted, shall be furnished," &c., and this part of the act is still in force. In 1885 the Secretary of War construed this act as contem- plating and including "sleeping car accommodations on occasion of night travel."' Under the existing law, officers on the active list, traveling on duty, are not entitled to be reimbursed the cost of such accommodations, being expressly disallowed sleeping car and parlor car fare by the statute. But held that the cases of disabled officers (and soldiers), obliged to resort to artificial limbs, were not necessarily governed by the statutory provisions restricting the travel allowances of active officers, and that, as the law on the subject has not been changed since the construction referred to, the same may properly be regarded as still controlling, and the cost of sleeping berths be still allowed in these cases. ^ 61, 147, Aiu/ust, 1893. 1950. By an arrangement with a railway compan}^, made with the concurrence of the quartermaster at his station, an officer, on chang- ing station, hviddllhiiipersonalhaggage transported together in a single through car. Held that this action might subsequently {nunc pro tune) properly be ratified by the ''higher authority" indicated in par. 1221, A. R. (1889), and he be reimbursed the proportion which the United States, under par. 1222, would legally have been bound to pay for the transportation of his allowance. 59, 78, April., 1893. 1951. Held that an officer duly detailed under the act of August 5, 1892, for duty in the government department of the Columbian Expo- ' The adoption of \h\n opinion is ])ul)lisli('(l in ('ire. Xo. 22, A. (t. O., 1893. PAY AND ALLOWANCES, 545 sition, and continued on such dut}' for nearly a year, was entitled, on being ordered to the post of his company, to the allowance for trans- portation of bag-o-age to which an officer is entitled, under par. 1221 or 1222, A. R. , on changing station. The appropriations for such depart- ment in the acts of August 5, 1802 and March 3, 1893, cover only such items as the expenses of the transportation, preparation, installa- tion, care and return of the exhibits, and of the emplo3'ment of the necessary civilian clerks and assistants, and would not therefore apply to the payment of such an allowance. But the act of 1892 provides that officers of the army so detailed shall not be subject to any "loss of pay," and the term pat/, as thus used, is deemed to be properh^ con- structed as equivalent to compensation, and thus to include allowances. Ilild, therefore, that the allowance in this case was payable out of the regular appropriation for the transportation of the arm3^ 64, 367, 1952. An officer was ordered from Fort Custer to Washington, D. C, to await retirement, but was not in fact retired till at the end of al)out five months after his arrival at Washington. Held that he was entitled, under par. 1169, as amended bj^G. O. 38 of 1890, to the regu- lation allowance for the transportation of his horses from Fort Custer, on the ground that he was changing station. Washington became on his arrival, and continued to be during the five months mentioned, his proper station, where he was entitled to receive the of he?' allowances accruing to an officer at his station — commutation of quarters, forage, medical attendance, the right to purchase commissary stores and fuel, &v. 60, 22, June, 1893. 1953. A cavalry lieutenant, ordered from Washington to report to the Superintendent of the Military Academy for duty at the academy, JitJd entitled to be reimbursed the amount paid by him for the trans- portation of his horse to West Point; such amount being reasonable and within the regulation limit. An assignment to duty at the acad- emy is not a "college detail." 59, 7, April., 1893. 1954. IFeld that the regulation allowance for the the expenses of the interment of an officer, as fixed by par. 86, A. R. (as amended by G. O. 29 of 1891), was not payable in a case of an officer who at the time of his death was on sick leave, this not being one of the cases specified in the arm}' appropriation acts (see acts of June 30, 1892 and Feb. 27, 1893), in which such allowance is authorized to be paid. 60, 47, June, 1893. Similarly heJd in a case of an officer who died at the Hot Springs, Arkansas, when not on duty but on leave of absence. 47, 253, Maij, 1891. 1955. Held that the fact that an officer had l)ocn interred at the post 16906—01 35 540 PAY AND allowancp:s. where he died did not prechide the Secretary of War from authorizing his pennanent interment elsewhere, provided the entire expenses of burial did not exceed the maximum amount of seventy five dollars allowed for such purposes by par. 86, A. K., as amended by G. O. 29 of 1891. But held further that, under the provision on the subject of the Army Appropriation Act of Feb. 27, 1893, such expenses could not be allowed for the interment of an ofiicer dying- at a military post unless he was on duty there at the time of his death, and therefore could not legally be allowed in a case of an officer who deceased at a post where he was staving while on sick leave of absence from his station in another military department. 65, 183, June, ISdlj.. VI. — Allowances of Enlisted Mek. 1956. The commutation allowance for cjuarters and fuel for enlisted men has not Ijeen fixed by any general statute. Its authority is army regulation, recognized, however, and sanctioned b}" appropriation acts.^ The subject is under the direction of the Secretary of War, who may — as he has done heretofore — change the amount, except in so far as it may be regulated by Congress. The contract of enlistment does not bind the United States to any fixed allowance, and, in the exercise of the power of amending regulations, the amount of the com- mutation payable to enlisted men maj' be reduced at the discretion of the Secretary of War.' LII, 97, March, 1SS7. 1957. Authority to estal)lish the rates of the allowance for commu- tation of rations has not been given by statute, but these rates have been left to be fixed })y army regulations. But these amounts are recognized and sanctioned in the provisions of the army appropria- tion acts relating to the Subsistence Department. 49, 441, October, 1891. 1958. Par. 1419, A. R. (1889), in directing that commutation in lieu of rations shall not be allowed to soldiers where subsistence in kind is provided })\ the Government, except cases where the same is specially authorized by the Secretar}- of War. Held, that this part of the regulations was substantially superseded by the statutory provision of the existing Army Appropriation Act of February 27, 1893, which enumerates several specific classes of enlisted men as persons to whom the payment may be made without reserving to the Secretary of War an}^ authority to extend the privilege. 60, 44.5, July, 1893. »See 1 Opins. At. Gen., 475; 2 id., 704. ■■'But see the Army Appropriation Act of Feb. 12, 1895, which with respect to the a]>i)ropriation for " barracks and (juarters" i)rovi(les that "no part of the moneys so ap])r()i)riatevision is repeated in all the subsequent army appropriation acts to the present time (1901 ). PAY AND ALLOWANCES. 547 1959. The allowance for commutatlvn of rations^ made pa3'able, ]>y the Army Appropriation Act of February 27, 1893, ''to enlisted men traveling on detached duty, when it is impracticable to carry rations," &c., hdd to be restricted to the period covered l\v the travel, and not to be payable to a soldier for commutation of rations consumed at the destination where he was placed b}^ his orders on detached duty, v/s., for four days board at a hotel at the terminus of his travel. 59, 38, ApnL 1S93. 1960. The men enlisted as general service clerks, specified in the Army Appropriation Act of June 30, 1886, are provided to be paid a certain lixed compensation, which, it is prescribed, shall be "in full for all pay, commutations, and allowances." Held^ that thej^ could not legall\' be allowed commutation for rations. LIII, 75, Octfiber, 1S86. 1961. Where a sentence forfeits "all pay and allowances" for a cer- tain period, the necessary clothing may be supplied under the provi- sions of A. R. 12iM (1193 of 1895; 1317 of 1901). AUprisoners in the manual custody of the authorities, civil or military, are entitled to subsistence during their detention and it cannot be forfeited by sentence. 62, 211, Mvc/nhcr, 1893. 1962. A sentence to forfeit all pay and allowances due and to become due forfeits commutation of quarters, fuel and rations, the same being included in the term allowances. LIII, 270, Ajjril, 1887. 1963. Held that one who had entered the army by a fraudulent enlist- ment was not entitled, upon his summary discharge without honor on the discover}' of the fraud, to be paid the travel allowance provided by Sec. 1290, Rev. Sts. The principle that the party to a contract, against whom a fraud is committed by the other party in entering into the contract, ma}' at once rescind the contract, the defrauding party there- upon losing all rights and profits under it, applies equally to contracts of enlistment. 54, 373, Jidij, 1892. 1964. Held that the provision of the act of July 29, 1886, fixing the pa}' and allowances of general service clerks and messengers, did not preclude the reimbursement to them, out of the army appropriation for the fiscal year, of their actual necessary expenses while traveling under orders on public l)usiness. 61, 73, August., 1893. 1965. The regulation, par. 159|^, published in G. O. 77, of Sep- tember 8, 1893, as to transportation allowances for " general service clerks and messengers", being substantially no more than declaratory of existing law, Juld that the same was not prospective only but was applicable to cases of claims for such allowance pending at its date as well as those originating thereafter.^ 62, 73, 76, October^ 1893. *" General service" clerks and messengers were done away with by the Army Appropriation Act of August 6, 1894. 548 paymaster's clerk. 1966. Where a hospital steward absent on furlough was, in an emero-enc'3', summaril}- ordered to his station for duty, pending the . furlough, held that he was entitled to be reimbursed (out of the appropriation for transportation of the army) his proper transporta- tion expenses, on his producing due evidence of the same, vlz.^ the receipts of the persons to whom the amounts were paid, or, in their absence, his own itemized sworn statement. 56, 269, Noveml:)ei\ 1892. 1967. Where a soldier was taken into the custody of the U. S. civil authorities on a criminal charge, and was brought to trial in a U. S. court and acquitted, Jnhl that a reimlnirsoment of the expenses of his transportation and subsistence in returning to his military station could not legallv be made him out of any appropriation applicable to the payment of such expenses in the army, but were proper for reimburse- ment by the Department of Justice. 57, i}77, January^ 1893. 1968. The act of July 29, 1886, in authorizing the enlistment of a body of men ''for clerical service and messenger duty", provides that they shall be paid a certain tixed compensation, and ''shall receive no other compensation, pa} , or allowance" (except, under special circum- stances, one ration in kind, for subsistence). Held that they were entitled, like other enlisted men, to medical treatment and attendance at the posts at which they were serving, such not being an "allow- ance", in the sense of being an element of amij^ensatio)), as that term has been defined by the authorities. ^ LI, 613, March, 1887. 1969. An enlisted man, confined in arrest under charges and await- ing trial, was temporarily released to act as company cook, and did so act for one month. The status of arrest does not ati'ect a soldier's right to the pay and allowances receivable from the United States, much less could it afiect his right to an allowance pa3^able out of the company fund. Held therefore that this man was entitled to the allowance for services as cook, made payable by par. 303, A. R. (1889), as amended by G. O. 13 of 1892. And held that a sentence adjudged this soldier, before the above allowance was rendered to him, by which was forfeited a por- tion of hismonthly pay for three months, did not affect a compensation which was no part whatever of his pay. 58. 101, Fehruary., 1893. PAYMASTER'S CLERK. 1970. A paymaster's clerk is a civilian (see Sec. 1190, Rev. 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 i)ersons indicated by the 63d Article of War, he is not amenable to military- discipline or the ^U. S. V. Landere, 92 U. S., 77; Sherlnirne v. U. S., 16 Ct. Cls., 491. PENALTY ENVELOPE. 549 jurisdiction of a court martial.^ Ill, 2()9j August, 1863; Card 7424, Decemler, 1809. 1971. Held that Sec. 1190, Rev. Sts., providing for the allowance of clerks for paymasters, did not authorize the continuance of the employ- ment of such a clerk for a paymaster after he had Ijecome retired. The statute refers only to paymasters in active service. LIU, 265, AprU, 1887. PAYMENT. 1972. 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 send- ing hy inail lo a part}^, of money due him, is at the risk of the party remitting; and, if the money is lost in transitu.^ such a sending does not amount to a legal paj^ment or discharge of the debt.^ So, where an officer, having in his possession certain companj^ funds, due and payable 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 that the loss must be borne by the officer sending the money. XXVI, 274, Decemhe7\ 1867. Similarly held., where a superior officer attempted to transmit to an inferior officer under his command, without any request or authority from him to so transmit the same, certain pay due the latter, in the form of a check payable to bearer, enclosed in a letter, which was lost or stolen iii trmisitu. XXI, 112, Deceniher, 1865. PENALTY ENVELOPE. 1973. Held that the words, '"penalty for private use — $300," printed upon an official envelope, constituted a sufficient "'statement" under the act of July 5th, 1884, c. 234, s. 3, which provides simply that the envelopes shall "bear a statement of the penalty for their misuse."' 60, 425, July, 1893. 1974. If the matter of carrying on correspondence becomes the official duty of a public officer and he conducts it in the discharge of that official duty, he is entitled to use the penalty envelope; otherwise he would not be. Card 276, Septetnber, 1891^. ^ Paymasters' clerks in the navy occupy a different status. Tiiey wear a uniform, have a fixed rank, and are held by the U. S. courts to he a part" of the navy and amenable at all times to trial l)y naval courts martial. See Ex parte Reed, 10 Otto, 18; //( re Bogart, 2 Sawyer, 896; United States v. Bogart, 3 Benedict, 257. But see Ex parie Van Vranken, 47 Fed. Rep. 888. *Gurney v. Howe, 9 Gray, 404; Bovd v. Reed, 6 Heisk., 631; Morton r. Morris, 31 Ga., 378; Burr r. Sickles, 17 Ark., 428; Selman v. Dun, 10 West. L. J., 459; 2 Greenl. Ev. § 525; 1 Pars. Contr., 132. 550 PENALTY ENVELOPE. 1975. The law regarding the use of penalty envelopes (act of March 3, 1877, c. 108, s. 5 and 6, and the act of July 5, 1884, c. 234, s. 3) restricts the use of such envelopes, for the free transmission of enclosures, to ""officers of the United States Government;" excejd that in the latter act it is provided "that any department or officer author- ized to use penalty envelopes may enclose them, with return address, to any person or persons from or through whom official information is desired, the same to cover such official information and endorsements relating thereto." Held therefore that the authorities of a college, etc., where an officer of the army is on duty under Sec. 122.5, Rev. Sts., are not authorized to i/i it /'ate the use of the penalty envelope for the transmission of official papers pertaining to the military depart- ment thereof but may legally transmit the same to the proper depart- ment of the Government in penalty envelopes previously furnished to them by the department for the purpose. Card 729, December, 1S94- 1976. JLId that recruiting officers ma}' legally use the penalty enve- lope for the transnussion to private persons of circulars, letters, etc., giving information with regard to enlistment in the military service, and may also when verifying, by letter, an applicant's character, enclose a penalty envelope to cover the information sought. Card 1593, July, 1895. 1977. Held that penalty envelopes with return address could legally be sent from the office of the Commissary General of Subsistence to ex-officers of the militar}^ service, for use in transmitting answers to inquiries, propounded b}' that office to them in connection with pend- ing claims of enlisted men who had been under their command, also to the same parties for use in furnishing that office at its request with information relating to claims of third persons for supplies furnished or services rendered to the United States, the information sought being official, inasmuch as it was to be called for by officers of the Government in connection with claims pending before them and not from the claimants themselves. Card 6236, April, 1899. 1978. When matters pertaining to the muster-in of United States volunteers ""relate exclusivelv to the business of the Government of the United States," adjutants general of the respective States assisting in such muster-in may legall}^ use the penalty envelope in their corre- spondence to the extent stated, ])ut any person using it must decide for himself whether in the particular case it may legally l)e used, having in mind his criminal liability for a misuse thereof. Cards 4610, Jana- ary. 1898; 6173, April, 1899: 7351, Mvemher, 1899. 1979. If official information is called for by the War Department respecting State militia, penalty envelopes may be furnished to cover the replies under the act of July 5, 1884, but this would not authorize PERJUEY. 551 their use otherwise for the business of the militia with the general government. Card 6419, May, 1899. 1980. A penalty envelope or postal card with return address may legalh' l)e sent b}^ a disbursing officer to a public creditor (a private person) to be used by the latter in acknowledging receipt of a check sent. Card 6236, April, 1899. 1981. Penalty envelopes cannot legally be used by retired enlisted men in sending to military posts for supplies for their use. Card 3415, Amjust, 1897. PERJURY. 1982. It is a well settled rule of the common law that to sustain the charge of perjury, the evidence of two witnesses or of one witness with strong corroborating circumstances is necessary to prove the falsity of what w\as testified. XII, 631, Septemher., 1865. 1983. Under this charge, testimony which consists of answers to questions going to the credit of a particular witness, or of other "witnesses W'hom he corroborated, is ''material to the issue." 36, 359, Noveiiiber, 1889; 54, 316, JvJy, 1892. 1984. Where the prosecution introduced but one witness to prove the falsity of the testimony under this charge, and that witness was contradicted as to a material point and the accused was convicted, advised., pending the execution of the sentence, that the unexecuted portion thereof be remitted on account of the failure of proof. LIU, 644, 3fay, 1888. 1985. False swearing by an officer or enlisted man before a court martial, knowing the same to be false, whether or not as to matter material to the issue, is "conduct to the prejudice of good order and military discipline", and is cognizable and punishable as such under the general (62d) article.' 36, 359, Mvemher, 1889. 1986. " False swearing," as the term is used in the order prescribing maxinuuu punishments, means, (1) taking a false oath in a military judicial proceeding as to a matter not material to the issue; (2) taking a false oath otherwise than in a judicial proceeding, before a person legally authorized to administer the oath and under circumstances affecting the interests of the military service. 46, 211, Mareli., 1891. 1987. A recruit's declaration as to his age is no part of the oath pre- scribed by the 2d Article of War. There is no law of the United States which requires that such statement shall be under oath. Held., therefore, that when the statement is false the recruit is not indictable for perjury under Sec. 6392, Rev. Sts. 30, 176, February.^ 1889. ^ And in the case of an officer it is also chargeable as a violation of the 61st Article. 552 PLEA. PLEA. 1988. It is a general rule of criminal law that where the accused pleads guilty, no testimony on the merits is to be introduced. But, on military trials, the court, eyen against the ol)iection of the accused, ma}', in its discretion, call upon the judge-adyocate to offer eyidence, or approye of his doing so, in a case where such eyidence is deemed to be essential to the due administration of military justice.^ An accused cannot be allowed, by pleading guilty, to shut out testimon}- where the interests of the seryice require its introduction. XXIX, 121, July^ 1S69. But in all cases where eyidence is introduced 1)}^ the prosecution after a plea of guilty, the accused should of course be afforded an opportunity to offer rebutting eyidence, or eyidence as to character, should he desire to do so. XIII, 423, February, 1865. 1989. While it cannot properly be ordered by a commander that courts martial conyened by him shall not receive pleas of guilt3% or shall take eyidence on the merits notwithstanding pleas of guilty are interposed by the accused, it is yet proper, and in general desirable, particularh' in cases of enlisted men, and especiall}' where the specifi- cations do not fully set forth the facts of the case, that the prosecution should be instructed or adyised to introduce, with the consent of the court, eyidence of the circumstances of the offence, where the plea is guilt}" 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 punishment proper to be awarded; and further that the reviewing authority may be better enabled to comprehend the entire case, and to determine whether the sentence shall l)e approved or disapproved (in whole or in part), or shall be mitigated or (in whole or in part) remitted. Where indeed the sentence is not discretionary with the court, the former reason does not apply, though in such case the evidence may be desir- able as the basis for a recommendation by the members. But where the sentence is mandatory, the latter reason applies with the greater force, since the mandatory punishments under the Articles of War are 'The principle that in cases in which the plea is guilty the court should take tes- timony, where necessary to the comprehending of the facts and the doing of justice, though apparently in a measure lost sight of at a later period, was clearly enunciated in early general orders of the War Department. Thus, in G. O. 23 of 1830, Maj. Gen. Macomb (connnanding the Army) expresses himself as follows:— "In every case in which a prisoner pleads guilty, it is the duty of the court martial, notwith- standing, to receive and to rei)ort in its proceedings such evidence as may afford a full knowledge of the circumstances; it ]>eing essential that the facts and particulars shonld l)e known to those whose duty it is to re]>ort on the case, or who have dis- cretion in carrying the sentence into effect." And see G. U. 21, of 1S33, to a similar effect. See now Court-Martial Manual (1901), pp. 31-33. PLEA. 553 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 particularh% it is most important that all the facts of the case — all circumstances of extenuation as wsU as of aggravation — .should be exhibited in evidence. Ill, 047, Se2)tern}jei\ ISfJJ; VI. 370, Se2)teriihei\ I8GJ4.. In practice, the absence of evidence to illustrate the offence has l>een found peculiarly embarrassing in cases of deserters. In a majority of these cases in which 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 — whether desired upon the original review of the proceedings or upon a subsequent application for remission of sentence — is thus, in many instances, not attainable.^ XXVII, 180, Septe7iit)er, 1868. 1990. It not unf requently happens upon trials of enlisted men that the accused, in pleading guilty, will proceed to make a xiatement (oral or written) to the court, which is in fact inconsistent with the plea. Thus, in a case where the accused, Ijeing evidently ignorant of the forms of law, pleaded guilt}' to an artiffcially worded charge and specilication, and immediateh" thereupon made an oral statement to the court of the particulars of his conduct, setting forth facts quite incongruous with his plea, and no evidence whatever was introduced in the case; — /ct/^Z that the statement, rather than the plea, should l)e regarded as the intelligent act of the accused, and that, upon consider- ing both together, the accused should not be deemed to have confessed his guilt of the specific charge. VIII, 274, April, 1861^,- XVII, 48, June., 1865; XXX, 38, Jtihj, 1869. In such a case the court will properly counsel the accused to plead not guilty, or direct such plea to be entered, and proceed to a trial and investigation of the merits (VI, 357, 370, September., 1864)\ the judge-advocate introducing his proof precisely as under an ordinary plea of not guilty. 61,394,AVy> te/ither, 1893. And where, with a plea of guilty, there was offered l^y the accused a written statement setting forth material circumstances of extenuation., and the court without taking any testimony whatever, or apparentl}^ regarding the statement, proceeded to conviction and sentence; advised — the case being one in which the sentence had l)een partl}^ executed — that this action constituted a reasonable ground for a remission of a portion of the punishment, XX, 120, 127, 177, Jiove/zi- hn\ 1865; XV, 142, Apyrit, 1865; XXIX, 421, Novemher, 1869; XXXII, 652, 3faij, 1872; XXXIII, 42, June, 1872. 1991. Wherever, in connection with the plea of guilty, a statement ^ See views of the Judge- Advocate General, relating to the nubject of this })ara- graph, published in G. C. M. O. 69, Hdqrs. of Army, 1877. 554 PLEA. or confession, whether oral or written, is interposed by the accused, both plea 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 offence which will constitute a defence to the charge, or relieve the accused from a measure of culpability, the court will properly call upon or permit the judge advocate to obtain and introduce such evidence, if practicable. XIV, 585, 596, June, 1865; XXVI, 562, 3ray, 1868; XXVIII, 123, SeptmJjer, 1868; XXIX, 11, 348, June and October, 1869; 658, Fehruary, 1870. 1992. It has not unfrequently happened that enlisted men, charged with desertion, have, in connection with a plea of guilty, made a state- ment disclaiming having had, in absenting themselves, any intention of abandoning the service, and stating facts which, if true, constitute absence- without-leave only. In such a case the accused cannot in gen- eral 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 plea to be entered and take such evidence as may be attainable, to show what offence w^as actually committed.^ XXVI, 562, May, 1868. 1993. Statements inconsistent with the plea have not rarely been made in cases like larceny where several distinct elements are required to constitute the crime in law. For example, a soldier will plead guilty to a charge of larceny, and thereupon make a statement dis- claiming the peculiar intent {animus furandi) necessary to the offence, thus really admitting only an unauthorized taking. In such cases the court will proper!}' instruct the accused that he should change his plea to not guilty, and, if he declines to do so, will properly call upon the judge advocate to introduce evidence showing the actual offence com- mitted. XXVIII, 677, June, 1869; XXIX, 658, Fehruary, 1870. 1994. A court martial is authorized, in any case, in its discretion, to permit an accused to withdraw a plea of not guilty, and substitute one of guilty, and vice versa, or to withdraw either of these general pleas and substitute a special plea. And wherever the accused applies to be ^The views of the Judge-Advocate General, as presented in §§ 1990-1992, have been adopted in the general orders of the War Department and in numerous orders of the various military department, &c., commands. In G. C. M. 0. 2, War Dept. 1872, the Secretary of 'War observes, in regard to two cases of soldiers, as follows: "The written statements submitted by the accused are contradictory of their pleas of -guilty.' The court should have regarded these statements as neutralizing the effect of their pleas, and should have had the accused instructed as to their legal rights, and advised to change their pleas with a view to the hearing of testimony. It not unfrequently ha^tpens that soldiers do not understand the legal difference between absence-witliout-leave and desertion, or are wholly muil)le to discriminate as to the grade of their offences, as determined by their motives. They thus, sometimes, ignorantly i)lead guilty and are sentenced for crimes of which they may be actually innocent. The proceedings, findings, and sentences are disapproved." And see G. C. M. O. .'51, War Dept., 1870. PLEA. 555 allowed to chang-e or modif}- his plea, the court should in general con- sent provided the application is made in good faith and not for the purpose of delay, and to grant it will not result in luireasonably pro- tracting the investigation. XXX, 672, Octohei\ 1S70. 1995. Objections to the charges or specifications in matters oiforin should be taken advantage of by special pleas in the nature of pleas in abatement, or, better, by motion to strike out. Such are objections to the specifications as inartificial, indefinite, or redundant; or as mis- naming the accused (or other persons required to be specified), or mis- describing him as to his rank or office; or as containing insufficient allegations of time or place, &c. In such cases the objection should be raised by a special plea in abatement, or by motion, in order that errors capable of amendment may be amended on the spot b}' the judge advocate, and — the plea of not guilt}" (or guilt}") being then made — the trial may proceed in the usual manner. Objections of this class, not thus taken, will properly be considered as vmlred l)y the plea of guilty or not guilty, and their existence will not then affect the validity of the proceedings or sentence. V, 577, Decemhei^ ISGlf,; VII, 234, February, 1S6J^; IX, 518, August, 186]^; XV, 117, March, 1865; XXIV, 140, January, 1867; XXV, 100, Septemher, 1867; XX.YU1,S72, February, 1869; XXX, 288, April, 1870; XXXIV, 32, JVoveviier, 1872; XXXV, 450, June, 187]^; XXXVIII, 654, June, 1877; LI, 144, FJrruary, 1887; LVI, 243, 2£ay, 1888. Where without preliminary objection the accused pleads guilty or not guilty to a specification, in which he is incorrectly named or described, such plea will be regarded as an admission by the accused of his identity with the person thus designated, and he cannot there- after object to the pleadings on account of misnomer or misdescription.^ V, 577, Decemher, 186^; XV, 117, March, 1865; XXV, 100, Septem- her, 1867; LI, 144, Fehruary, 1887-. 1996. Facts and circumstances which are properly matters of evi- dence are not legitimate subjects of pleas; as, for example, circum- stances going to extenuate the offence. Thus held that good conduct of the accused in battle subsequent to the commission of the offence charged could not properly be presented in the form of a plea. VI, 79, ' Objections to the charges and specifications on account of matter of substance, — as that they do not contain the necessary allegations, or otherwise do not set forth facts constituting military offences, — should properly be made at the outset of the pro- ceedings by a special plea in the nature of a demurrer, or thej" will in general be regarded as tmived. So, ol)jections going to the legal constHiitlnn or composition of the court, or to its jiiri.y General Orders, No. 46, Headquarters of the Army, July 25, 1895, post exchanges were established and the commanders at eyery post thereby required to institute the same; to set apart, rent, or construct as therein pro- yided a suitalile building or rooms therefor and to detail an officer to be designated as 'officer in charge' to manage the business and affairs of such exchanges under the superintendence of a council consisting of three officers. * * * "Such exchanges were first organized under General Order No. 10, Adjutant- General's Office, February 1, 1889, and as thus organized superseded the "canteens" which were organizations in the nature of social clubs, yoluntarily formed by the officers of a regiment or other command with their own money and conducted inde- pendently of their official duties, as we are adyised. "These social clubs, known as 'canteens,' were organized after the office of sutler in the army had been abolished by the act of July 28, 1866 (14 Stat. L., 366). They were held lia1)le to internal revenue tax the same as social clubs in cities selling manufactured tobacco, cigars and liquors to their members. "By the act of January 28, 1893 (27 Stat. L., 426; 2 Supp. Rev. Stats., 76), post traderships in connection with the military service were also abolished, and follow- ing this came the establishment of 'post exchanges' by the regulations therefor, published in 1895, as aforesaid. * * * "On the application of the claimant (Post Exchange Officer at Jefferson Barracks, Mo.), * * * the Commissioner of Internal Revenue, under Revised Statutes, section 3426, as amended l)y section 17 of the act of IVIarch 1, 1879 (20 Stat. L. J). 349; 1 Sui)p. Rev. Stat. p. 241), made allowances or awards in his favor for the rei)ayment to him of the special tax so paid and the Commissioner certified the same for payment. * * * " The decision of the Commissioner presumably based on ' satisfactory evidence of the facts ' was that the post exchanges so established were ' no longer the mere social clubs that the old canteens were,' but that they were 'brought under the complete control of the Secretary of War by the regulations as governmental agencies' and for that reason the special tax was not required to be paid by post exchanges aa 'dealers in oleomargarine, or as liquor dealers, or malt liquor dealers.' * * * "True such exchanges have not been authorized by direct legislation but the Presi- dent has the undoubted i)ower to estal)lish rules and regulations for the government of the army, and whatever rules and orders are promulgated through the Secretary of War ' must be I'eceived aa the acts of the Executive and as such be binding upon 560 POST EXCHANGE OR CANTEEN. ' 2015. ILM that the act of Congress of June 13, 1890 (26 Stats., 154), prohibiting the sale of alcoholic liquors beer or wine to erriisted men in any canteen or in an}" room or building at an}" garrison or military post ""in any State or Territory in which the sale of alcoholic liquors, beer or wine were prohibited by law " does not apply to the State of South Carolina, the sale of such liquors being regulated but not prohibited by the laws of that State. Card 3601, Novt^nhtn^ 1897. 2016. Held that there is no legal objection to an allowance to the post exchange officer out of the exchange funds, to offset in a measure the pecuniary ri.sk which he is obliged to take. Card 3108, Aprils 1897. 2017. A discharged soldier transferred his final statements to a post exchange officer, who thereupon advanced him from the post exchange funds seventy-five dollars and forwarded the statements to a paymaster. Upon receipt from the paymaster of a check for one hundred and two dollars and seventy-nine cents in payment of the final statements, the post exchange officer remitted twenty-seven dollars and fifty cents to the discharged soldier retaining twenty-nine cents to cover postage, registration fee, and cost of money order. Five months later the pay- master discovered that he had made an overpayment through his own error in computation and called upon the post exchange to reimburse him on the ground that it had received pu])lic money to which it was not entitled. The post exchange council disallowed the claim, setting forth in its proceedings that "the post exchange is expressly debarred from making any profit by these transactions, exchange officers being required to certify on each of the statements that they were cashed as all within tlie sphere of his legal and constitutional authority,' as was held by the Supreme Court in the case of the Ignited States v. Eliason (16 Peters 291). * * * " If, therefore, in the judgment and wisdom of the Executive the establishment of such post exchanges and their management by the officers of the army are essential to the welfare, good order, and discipline of the troops stationed at such army posts, as seems evident from the exchange regulations thus promulgated, then we think such exchanges, though conducted without financial liability to the Government, are, in their creation and management, governmental agencies, established for the purpose as the regulations provide of sup])lying 'the troops at reasonable prices with the articles of ordinary use, wear, and consmnption not supplied by the Government and to afford them means of rational recreation and amusement,' and also 'through exchange profits, to provide the means for improving the messes.' * * * "Thus it will be seen that the establishment, maintenance, management and clos- ing up of such exchanges are under the contrt)l of and subject to the regulations of the War Department as governmental agencies for the purjsose aforesaid. * * * "The Government, through its officers, by authority of the regulations not only establishes and maintains such exchanges, but receives, handles, and disburses the funds in connection therewith, and whatever profit accrues is paid over to and held by the officer in connuand of such (trganizations as a company fund. "It has never been the policy of the Cxovernment to tax its own enterprises or its own manner or method of doing business; and inasmuch as post exchanges are established and maintained l)y it for the mental and }>hysical betterment of its troops in garrisons and ])osts, with resulting if not immediate benefit to itself, we think such exchanges are exempt from the nayment of special tax for the sale of such articles as the regulations i)ermit. * * *" POST TRADER. 561 a matter of accommodation to the soldier and without profit to the post exchange: that in consequence it has been the custom to make an advance or partial payment to the men and upon receipt of the pay- master's check to make final settlement; that the Government does not furnish the exchange officer with any facilities for making com- putations in these cases, and hence he is obliged to regard the pa}^- master's check in settlement as officially accurate and final." Ileld^ that the loss should not fall on the post exchange as under the circum- stances it acted simply as the agency through which payment was made by the paymaster to the soldier and was in no way responsible for the error. The soldier and not the post exchange was the debtor to whom the paymaster should look for reimbursement for the over- payment. The error having been made by the paymaster the loss should fall on him under A. R. 054 (736 of 1001). Card T5S9, January^ 1900. POST aUARTEEMASTER SERGEANT. 2018. The act of July 5, 1881, c. 217, in authorizing the Secretary of War to appoint post quartermaster sergeants, provides that they shall be selected by examination from the most competent enlisted men in the army who have served at least four 3'ears and whose character and education shall fit them to take charge of pul)lic property and to act as clerks and assistants to post and other quartermasters. Held^ that the Secretary of War ma}^ under this statute appoint as post quartermaster sergeant any enlisted man of the army who ma^' l)e found to possess the qualifications specified and that the statement of par. 91, A. R., to the effect that they are appointed from sergeants in the line of the army should not be viewed as a restriction upon the appointing power of the Secretary. 47, 169, May., 1891. 2019. Held that a chief clerk at a department headquarters employed under the act of Aug. 6, 1891 (Army Appropriation Act) is not eligible for appointment as post quartermaster sergeant. Card 2(»31, February 1896. POST TRADER. 2020. 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 resolution of March 30, 1867, conferred authority upon "the connnanding general of the arm}- to permit a trading establishment to be maintained," after the above date of July 1, 1867, "at any military post on the fi'ontier not in the vicinity of any city or town (and situ- ated at any point between the lOOth meridian of longitude, west from Greenwich, and the eastern boundary of the State of California) when 16906—01—36 562 POST TRADER. in his judgment such establishment is needed for the accommodation of emigrants, freighters and other citizens: '^^ * * jK»;r>iv/6ZtfZ that such traders shall be under protection and military control as camp- followers." B,v the act of July 15, 1870, c. 29-1, s. 22, this statute was repealed and there w^as enacted in its place the following: '" That from and after the passage of this act, the Secretar}^ of War be, and he is hereby, authorized to permit one or more trading establishments to be main- tained at any military post on the frontier not in the vicinit}^ of any city or town, w^hen, in his judgment, such establishment is needed for the accommodation of emigrants, freighters, and other citizens; and the persons to maintain such trading establishments shall be appointed by him: provided that such traders shall be under protection and mili- tary control as camp-followers.'' This provision constituted the exist- ing law on the subject at the date of the adoption of the Revised Stat- utes, and is incorporated in the same in Sec. 1113. Further, by the act of July 21, 1876, c. 226, s. 3, it has been pro- vided: "That every military post may have one trader, to be appointed by the Secretary of War on the recommendation of the council of administration, approved by the commanding officer, who shall be sub- ject in all respects to the rules and regulations for the government of the arm3^'"' The act of 1876, though apparently intended to supersede Sec. 1113. Rev. Sts., does not necessarily repeal the same. It is believed there- fore to be still proper for the Secretarv of War. in appointing a post trader, to take into consideration not merely his fitness and accept- ableness as a purveyor for the army at a military post, ])ut also the question whether a trading estal)lishment is needed at the post "for the accommodation of emigrants, freighters, or other citizens.""^ XLIII, 239, February, 1880. 2021. Under the provision of the act of 1876, a trader may be appointed, not merely for remote or frontier posts, at which only trading establishments could be maintained under previous enact- m(>nts, ])ut for any militar}' posts, in the discretion of the Secretary of War. XXXIX, 671, Septemher, 1878. 2022. The term of the appointment or license of a post trader, not ))elng fixed by the statute, is regulated by the general prmciple of public law, that where the tenure of a public office or employment created by Congress is not defined by that body, the same is to be ' That Sec. 1113 is not superseded, in the opinion of the Attorney General, is evi- dent from his opinion in 1(5 Opins. 40;3. And compare Id. (558. But see the final act of January 28, 1893, practically doing away with post traders, referred to in § 2036, post. POST TRADER. 563 regarded as held at the pleasure of the appointing- power. ^ XXXIX, miK Aiuju.st, 1878. 2023. A post trader is not, under the act of 1876, and was not under that of 1867 oi' 1870, amenable to the jurisdiction of a militar}- court in time of peace. The earlier statutes assimilated him to a camp- follower, but, strictl}' and properly, there can be no such thing a.s a camp follower in time of peace, and the only military jurisdiction to which a camp follower ma}' become subject is that indicated l)y the 63d Article of War, viz. , one exercisable only ""in the held" or on the theatre of war. Nor can the act of 1876, in providing that post traders shall be "subject to the rules and regulations for the government of the arm}"," 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 administrative directions known as the Army Regulations. (See § 2025, post.) If, however, the Articles of War are intended to be included, the amena])ility imposed is simply that hxed by the particular article applicable to civilians employed in connection with the army, v/2., Art. 63, which attaches this amenability only in time of war and in the held. Thus, though post traders might perhaps become liable to trial l:)}^ court martial if employed on the theatre of an Indian war, as persons serving with an army in the held in the sense of that article, they can- not l)e made so liable when not thus situated, and, as a general rule, the only adequate remedy in the event of serious misconduct bv a trader in time of peace would be the summar}' withdrawal of his appoint- ment or license by the Secretary of War. XXXIX, 395, January^ 1878. (See note to § 2022, ante.) 2024. Unlike the sutler under the old law, the post trader has no lien upon the pa}' 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 pa3'master\s delivering his pa}' 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, Rev. Sts.), but a> iiimself receiving the same and turning it over to the trader in and by the same act. XXVII. 282, Sejyteinher, 1868; 559, Ifcirch, 1869; XXIX, 229, 231, Augmt, 1869; XXXI, 655, Septeviber, 1871. So, a ' Ex parte Hennen, 13 Peters, 230. It is held by the Attorney General (15 Opins. 278) , that the appointment of a post trader is a mere license revocable at the pleasure of the Secretary of War; the concurrence of the post council and jiost commander not being required lor the removal, as they were (by the act of July 24, 1876) for the appointment, of the trader. 564 POST TRADER. paj'iiiaster is not authorized, without the express consent of the sol- dier, to deduct from the pay due him on a ''tinal statement" an amount admitted to be due bv him to a post trader. XXIX, 231, August^ 1869. An amount due by an officer or soldier to a trader cannot legally be forfeited or stopped for the benefit of the latter b}- a sen- tence of court martial. XXVII, 422, Decemler, 1868; XXXI, 376, May^ 1871. 2025. The Army Regulations of 1863, applicable to sutlers, were declared b}^ the Secretary of War, in a circular issued from the War Department, dated June T, 1871, to be not applicable to post traders, and it was added, ''no tax or burden in any shape will be imposed upon 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 arm}- , this class of persons 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 deter- mined 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 persons to be determined equitably hy the council — for the benefit of the post fund, as required by Gen. Orders No. 24, May, 1878,^ from this office." Ad/vised that this imposi- tion of a pecuniary mulct upon a civilian, not subject to the legal liabilities of a sutler, was scarcel}^ within the province of an adminis- trative regulation, and that the same could be enforced with entire legalit}^ only by authority of statute.'^ XLIII, 157, 239, Januari/ and FeJrruanj, 1880. 2026. It was held by Attorney General Gushing in 1855^ that a sut- ler employed at a military post could not legally be required 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 sutler is one of the means authorized by Congress in the exercise of the war power intrusted to it by the Constitution." This opinion, however, further holds (to cite from the headnote): "But sutlers may be compelled to pay license if they enter into general trade within the State." So, in a case of a trader at a militar}^ post in a Territory, by whom liquor was kept for sale as a part of his stock, who addressed ■' This order, in adopting tlie recommendation of a board to that effect, had already in f^uljstance directed the assessment of this tax. - A different conclusion is arrived at in an opinion of the Solictor General, in 16 Opins. At. Gen., 658. ^7 Opins. At. Gen. 578. And compare 4 /(/. 462. POST TRADER. 565 to the Secretaiy 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 ciyilians, — their establishments haying orig- inally been authorized "for the accommodation of emigrants, freight- ers, and other citizens," and their trade haying neyer been subsequentlj^ restricted to persons connected with the army. — they could in general legalh" be required by the local authorities of the State or Territory to take out and psij for licenses in the same manner as other merchants engaged in similar trades:^ but rei/tarktd that the question of the legalit}" of such a tax was rather one for the local courts than for the Secretary of War. XXX, ITT, March, 1870; XXXVl, 595, J>iJy, 1875; XXXIX, 395, January, 1878; XLI, 306, Jtdy, 1878; XLII, 83, Decemher, 1878; XLIII, 155, January, 1880. 2027. The mere fact that a post trader carries on business on a mili- tary re;;eryation in a Territory cannot (in the absence of any proyision in the organic act relieying him therefrom) affect his liability to be taxed b}^ the ciyil authorities; nor can such liability be affected by the fact that he carries on business on a military reseryation within a State, unless exclusiye jurisdiction oyer the same has been ceded to or reseryed by the United States. XLIII, 155, January, 1880. 2028. Held that a post trader duly appointed for a military post might properh' be authorized to erect on the post reseryation, on a site to be selected by the post commander, such buildings as were necessar}" or desirable for his business. XXXIII. 453, Odrher. 1872. And held also that, on his appointment or employment being termi- nated, he would properly be allowed a reasonable time to remoye such buildings.- XLI, 122, February, 1878. 2029. Held that a post trader, whether appointed by the authority of the act of July 15. 18T0 (Sec. 1113, Rey. Sts.), or of that of July 24. 18T6, was not — inasmuch as he did not exercise a public function or act for or represent the United States in any particular — a "person holding a commission or appointment under the United States," in the sense of Sec. 1851. Rev. Sts., and was therefore not ineligible to be a member of the legislature or to hold office under the goyernment of a Tei-ritory. XLII, 46, November, 1878. 2030. A post trader cannot legally trade with Indians in the Indian country without being specially licensed therefor according to the provisions of Sec. 2129, Rey. Sts. XLII, 400, Sej^tetnher, 1879. 'This view was concurred in bv the Department of Justice. See 16 Opins. 658; also id. 403. '^ See these conchisions concurred in, in a subsequent opinion of the Attorney General, in 14 Opins. 125. 566 POST TRADER. There is nothing in the appointment or office of a post trader from which there can be implied any special authority to trade with Indians, or which can exempt him in any measure from the application of the laws (see Tit, XXVIIl, ch. 4, Rev. Sts.) prohibiting- or restricting such trade. ^ So where a post trader had been authorized (under Sec. 2139, Rev. Sts.) to keep liquor at a military post in the Indian country for the purposes 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, 644, April, 1879. 2031. Held that a post trader could not, against his will, l)e compelled by the post council or post commander to sell spirituous liquors. Where a trader refuses to keep and sell any particular article or arti- cles which, in the opinion of the council and commander, he should trade in, the only remedy is by an appeal to the Secretary of War, who, if he deems the refusal unreasonable, may cancel the trader's license. XLIII, 166, January, 1880. 2032. A post trader has no lien on a soldier's pay, and a post com- mander has no authority to enforce a soldier's promise to pay for arti- cles purchased from the trader. 40, 80, March, 1890. 2033. A post trader supplies in a great measure the needs of the post, is assessed for the post fund, receives military protection, and is subject to the Aruiy Regulations. So, held of a trader at a post on an Indian reservation, that he was so far a part of the military estab- lishment as properly to be considered entitled to the benefit of the regulation of the Indian Department authorizing the militarj^ at such a post to cut and use without charge timber and ha}" sufficient for their necessar}^ wants. L, 321, June, 1886. 2034. A post trader became bankrupt, abandoned his business, and transferred, b}' deed of trust in favor of his creditors, his store and his goods, which were also attached by a sheriff. Held that, while his property should be permitted to be removed, he should be deemed to have forfeited his appointment. The act of July 24, 1876, c. 226, s. 3, authorizing the appointment of post traders, contemplates their actual continuing use of the privileges granted, not onh" for their own profit but for the benefit and convenience of the post, and the non-user and abandonment of such privileges should properly operate as a vol- untary forfeiture. LVI, 437, August, 1888. 2035. The appointment of a post trader is a mere license or permit with the understanding that it must be revocable; and in his business the trader is subject to the existing Army Regulations and police. Thus hrld that the regulations establishing canteens at military posts were not in conflict with the statute law providing for post traders. ' See the confirmatory opinion of the Attorney (General, in Hi Ojjins. 403. POWER OF ATTORNEY. 567 and were therefore not unauthorized or illegal. A canteen is a dis- tinct institution from that of the post trader, being- created not for trade with the general public, nor to be carried on for a purpose of profit, but as an additional facility for the uses of the troops, and while its sales may affect the business of the trader, its existence is not incompatible with that of his establishment. And held that the Gov- ernment was under no legal obligations to purchase the buildings or stock of the trader at a post at which a canteen had been initiated. 36, 227, November, 1889. 2036. The act of Januar}^ 28, 1893, c. .51, provides that thereafter vacancies in the position of post trader shall not be filled, and termi- nates the power of appointment of such traders. Held, that this statute did not preclude the licensing of a certain applicant to pursue the busi- ness of a restaurant keeper on the military reservation of Fort Wood, Bedloe's Island, New York Harbor, his status at such being quite dis- tinct from that of a post trader under the laws authorizing that class. 61, 80, August, 1893. POWER OF ATTORNEY. 2037. A contractor having a claim against the United States, exe- cuted a power of attorney to a party (a lawyer), authorizing 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 vest the attorney with an}- property or interest in the claim, nor did it appear from the relations of the parties or otherwise that any such interest existed. Subsequently, and before the allow- ance of the claim, the claimant, by a second power, expressly revoked the former power and substituted another person as attorney in the place of the party originalh^ 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 special contract making the same a lien upon the amounts authorized to be received under the power) constitute an interest therein;^ that the word "irrevocable,'' as employed in the power, was under the circumstances without legal significance or effect;^ that such power was therefore rcA'Ocable 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, Janu- ary, 1871. ' See Bristol's case, 11 Opins. At. Gen., 7. '' Pratt /•. United States, 3 Ct. Cls., 117; Hunt v. Eousmanier'sAdmrs., 8 Wheaton, 174. * Compare 16 Opins. At. Gen., 261. 568 PRESIDENT. PRESIDENT— AUTHORITY TO CONVENE GENERAL COURTS MARTIAL. 2038. The President is empowered to convene general courts mar- tial, not merely in the class of cases specified in the 72d Article of War (viz., where a military officer, thereb}^ authorized to convene such a court, is the "accuser or prosecutor" of an officer in his com- mand whom it is desired to bring to trial), ])ut, generally, and in any case, by virtue of his authority as commander-in-chief of the arm3\ As such, he is authorized to give orders to his subordinates, and the convening of a court martial is simply the giimig of an order to cer- tain officers to assemble as a court and exercise certain powers con- ferred upon them, when so assembled, by the Articles of War. 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 impractical )le, in the absence of an assignment of a general officer to command the arm}^ 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.* XXXIII, 603, JJecemher, 1872. 2039. A convening of a general court martial nominally l)y the Sec- retary of War is in law a convening by the President, and therefore as legal as if the President himself had signed the order. IX, -l-l, May^ 186 Jf. See § 221»4. poxt. PRESIDENT— AUTHORITY OVER THE PROCEEDINGS AND SENTENCES OF COURTS MARTIAL. 2040. In cases tried by general courts martial convened by himself, either under his general authority as commander-in-chief (see § 2038, ante), or as provided in the 72d Art. of War; also in cases of sen- tences imposed upon general officers and of sentences of death or dismissal adjudged in time of peace (see Arts. 105, 100 and 108); and in cases submitted to him for action in time of war under Art. Ill, — the President act^; as reviewing authority, and may approve or disapprove in whole or in part the proceedings or sentence, or, in *The authority of the President as commander-in-chief to institute p;eneral courts martial has been in fact exercised from time to time, from an early period, in a series of cases, commencing with those of Brig. (ien. Hull, Maj. , 401. PROMOTIOX. 575 were imperilled, were induced, solely in order to find means of escape from such desperate situation, to enlist in the enemy's army, adrised that such soldiers, on subsequently surrendering- to or ])eing captured b}' our forces, should not as a general rule be treated as deserters but should be returned to duty with their regiments without punishment. XIV, 135, Fchraarij, 1865; XVI, 40, 271, Airnl and June, 1865. But where it appeared that certain soldiers of our army who when prison- ers of war had enlisted in the enem3''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 arm}- till forcibh' captured by our forces, advised ihsii their representations to the efl'ect that they had joined the enemy to escape 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 enemv. XVI, l?>. ^fay, 1865. PROFESSOR OF THE MILITARY ACADEMY. 2066. Sec. 1330, Rev. Sts., provides that '-each of the professors of the Military Academy whose service at the academy exceeds ten years shall have the pay and allowances of colonel.'" Sec. 1 of the Armv Appropriation Act of June 23, 1879, amends this section b}' inserting, after the word '".service," the words "as profes.sor." ILId that professors who, at the passage of the last statute, were being paid as colonels because of having serAcd at the academy ten years, hut who had not yet served there as jxrofe-ssorx for that period, could not legally continue to be so paid, but were entitled to be paid as lieutenant colonels only until they had completed the term of spe- cial service contemplated by the act of 1879. XLII. 37.5, Aagud, 1879. 2. The professors of the Military Academy do not belong to the staff of the army within the meaning of Sec. 12 I'ROMOTION. Congress) to the captaincy in the .stead of the senior hrst lieutenant, but was thereupon confirmed by the Senate and commissioned, hdd that the lieutenant was without remedy except such as he mig-ht obtain by ap})lication to Congress. XXIX, 47, Jiuu\ 1S69. 2068. Par. 20 of the Army Regulations (1863) prescribed that pro- motions to the grade of captain should be made regimental ly. Section 1204, Rev. Sts., provides that ''promotions in the line shall ])e made through the whole army, in its several lines of artillery, cavalry, and infantry, respectiveh\'" Held that this statute simply means that promotions shall be made within the branches of the service of the respective officers, /. e., that infantry officers — for example — shall be promoted in the infantry arm, and not out of that arm and into another arm; and that it does not modify the rule laid down in the regulation ])ut is declaratory of the same. Sec. 1204 is indeed not new 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 artil- lery, dragoons, riflemen and infantry, respective!}', according to estah- Ikhedrule.'''' The established rule was that contained in a regulation of May, 1801, which prescribed, among other things, that — "Pro- motions to the rank of captain 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. XXXVII, 42.5, March, 1S76. (See § 2072, ^w.y?'.) 2069. The act of June 18, 1878, sec. 13, in prohibiting for a time promotions and a[)pointments in the arm}-, added the proviso, "that this limitation shall not apply to the line of the army below the rank of captain," Held that the efi'ect of this provision was to except sub- alterns from the general rule established h\ the statute, and that the promotion of a first lieutenant to a captaincy during the pendencv of th(^ prohibition was therefore legal. XLI, 4(H), S<'j>tcrnl)ei\ 187S. 2070. An officer who is senior in his grade in his regiment is ineli- gible, while under a legal sentence of suspension from rank, to promo- tion to a vacancy occurring in a higher grade pending the term of his suspension. Upon such vacancy, the next senior officer becomes entitled to the promotion in his stead. XXXIII, 69, June, 1S7'2. 2071. There is no vested right in promotion as sut-h on the part of officers of the army. All that can ])e .said is that officers have certain rights of promotion under whatever ma}' be the law from time to time. These rights vary with the law. Congress may change the date of an 'Set* 14 Opins. At. Gen. 164. PROMOTION". 577 officer's commission so as to give him a right of promotion over other officers who ranked him before, and so postpone their right to his. Thus, where an act of Congress authorized the President to issue a new commission to a lieutenant, the eifect of which would be to give him a precedence over twenty four other officers, held that such legis- lation was within the power of Congress, which was the sole judge as to its expediency. And held that the giving of authorit}" in such case, being one in which individual rights were concerned, was to be con- strued as a requireinent upon the President.^ 58, 309, March^ 1893. 2072. The act of October 1, 1890, c. 1241, substitutes "lineal" for "regimental" promotion, except only as to officers who were first lieutenants at the date of the act. A second lieutenant becoming a first lieutenant after that date is entitled only to lineal promotion. He must give way to all those who are senior to him in the grade of first lieutenant in his arm of the service. When promoted, he is simply promoted to captain — of infantry, &c., not to captain of any particular regiment; and is then assigned to a regiment in the discretion of the Secretary of War. There is no question of transfer involved; an officer need not be transferred from one regiment to another, for pro- motion into the latter. 61, 387, Sej)teniber, 1893. 2073. By express provision of the act of July 30, 1892, c. 328, only such enlisted men of the army as are "citizens of the United States" may "compete for promotion" to the grade of second lieutenant. So held that a soldier Avho was not a citizen was not eligible for examina- tion for promotion under the act, and could not become so eligible until he had been naturalized according to the existing law. 67, 155, December^ 1892. 2074. The act of Congress approved July 30, 1892, relating to the promotion of enlisted men to the grade of second lieutenant pre- scribes, among other things, that before they can compete for promo- tion they "must have served honorably not less than two years in the army." Held that, in computing this period of service, an absence on furlough could not under the terms of the statute legally be excluded; and that therefore the Army Regulation (par. 30 of 1895) in so far as it provides for such deduction should be viewed as in conflict with the statute and inoperative.^ Cards 1572, July., 1895; 1939, Ueceinhei', 1895. 2075. It is provided in Sec. 1257, Rev. Sts., that "when any officer in the line of promotion is retired from active service, the next officer in rank shall be promoted to his place, according to the established ^Supervisors v. U. S., 4 Wallace, 435. ^ See this view adopted iu decision circular 2, A. G. O., 1896. 16906—01 37 578 PROSECUTOR. rules of the service.'' One of these rules is that contained in par. 21, A. R. (1880), to the effect that " promotions * * * will be made according to seniority, except in case of disability." An officer had himself applied to be retired on account of a certain disability, and had been ordered before a retiring board which had found him inca- pacitated. But before the President acted upon the report of the board a vacancy occurred in the grade next higher to that of the officer, to which, if qualified, he would have been entitled to be promoted ])y seniority. Held that, as the fact of disability clearly appeared in the case, though no final action had been taken in regard to the retirement, the officer could not legally be promoted. 43, 83, 8eptemT>ei\ 1890. 2076. Held that a vacancy in the office of " chief medical pur- veyor" \should be filled, not by transfer from another office in the medical corps of equal rank, but by the promotion of the senior lieutenant colonel of the corps. 42, 331, Augu.st, 1890. 2077. A vacancy in the grade of quartermaster with rank of major having occurred in the Quartermaster Department, a military store- keeper in that department, who was the senior captain in the same, applied for the promotion. Held that the office of military storekeeper was no part of the permanent organization of that department, as con- stituted by the act of March 2, 1875, and was not one of the series of offices of the department to which the right of promotion under the law and regulations attached upon a vacancy, and that the claim must therefore be disallowed. Rank or grade is but an incident to office. Promotion is from office to office and as a consequence from grade to grade, and the law does not permit, in promotion, a separation of the office from the grade or rank. LVI, 083, October., 1888, PROSECUTOR. 2078. 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 prosecuting witness, is, in important cases, not unfrequentl}^ permitted by the court to remain in the court room and advise with the 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 a party is to testify, he should ordinarily be the first wintess examined: this course, however, is not invariable. II, 1, Jmie, 1863; XXIX, 34, June, 1869. ^This office has been done away with by the operation of the act of July 27, 1892, c. 270. PUBLIC MONEY. 579 PROTEST. 2079. Where the majority of the members of a court martial have come to a decision upon any question raised in the course of the pro- ceedings, or upon the finding or sentence, no individual 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 concurrence of two-thirds is required) are to be determined invariabl}^ b}^ the vote of the majoi'ity of its members, and it is much less impor- tant that individual members should have an opportunity of publish- ing their personal convictions, than that the action of the court should appear upon the formal record as that of the aggregate body, and should carry weight and have effect as such.^ XI, 203, Decernher, 1861f.; XXV, 542, May, 1868. Nor can a protest (against the finding or otherwise) by a minority of the members, be appended to the rec- ord, on a separate paper. XXXYI, 264; February^ 1875. PUBLIC MONEY. 2080. Held that the amounts received from private parties as "com- pensation "" for the use of the Des Moines Dry Dock, under the act of August 2, 1882, c. 375, were public money, and, in the absence of an}^ authority for the purpose in this act or other statute, could not legally be expended without an appropriation by Congress. By Sees. 3617 and 3621, Rev. Sts., it is made the duty of ever}' person, official or otherwise, to pay into the Treasury, "at as earl}' a date as practi- cable," any public money coming into his possession. The deposit and keeping of public money, by disbursing officers, in places where there is no public depositary, is regulated by the Secretary of the Treasury, under Sec. 3620, Rev. Sts. 39, 395, March, 1890. 2081. Where an officer in charge of certain river and harbor improvements exacted and received, from certain contractors for the work, sundry small sums of money claimed as due from them as amercements for damage or loss caused by them to the United States, JieJd that such sums were public money of the United States, and that a failure to account for the same as such rendered the officer liable to a charge of embezzlement. 52, 138, February^ 1892. 2082. Ildd that money received as rent or compensation for the use of portions of the water front of the Fort Canby reservation, Wash- ington, for fish-traps, was public money and was to be accounted fdr ^See Simmons, § 469; Hough (Precedents), 703, note 4. 580' PFBLIC MONEY. as such, and that it could not legally be turned into the "mess fund" for the purchase of vegetables for the post. 40, 72, JSIarch^ 1890. 2083. Congress is vested by the Constitution with the exclusive power of disposition of the personal as well as the real property of the United States;^ and b}^ Sec. 3018, Rev. Sts., Congress has provided generally that the proceeds of sales of personal property of the United States shall be paid into the Treasury as "miscellaneous receipts." Held therefore that the various funds received at military posts, on military reservations or otherwise, as compensation for public prop- erty occupied, sold, or allowed to be used or appropriated, or for labor furnished, or privileges or facilities conceded, &c. (such as monej's received for rents of fisheries, for fallen timber, for surplus lumber, manure, &c., for metallic cartridge shells collected at target ranges, for grazing privileges, brickyard privileges, quarrying privileges, the privilege of cutting ice, repairs done to wagons, shoeing of teams, tolls for teams and wagons passing across reservations, &c., &c.), were public money of the United States, to be accounted for to the Treas- my, and could not be legally retained as a so-called "slush fund," or disbursed for the use or benefit of the post or command. Otherwise, as to the proceeds of the sale of the savings from rations, or of the sale of any other company or regimental, &c., property. And money paid to a band for playing to citizens, being for a quasi personal service, may go to the band fund. But, while de rnhnmis non cinrd J ex, the proceeds of all jnMic propertf/ of an}' material value, including all moneys exacted or received from civilians, are to be turned into the Treasury; and otherwise to dispose of them is embezzlement. 43, 308, October, 1890; 52, 138, Fehruary, 1892. 2084. The act of July 28, 1892, c. 316, authorizes the Secretary of War, in his discretion, to "lease for a period not exceeding live years, and revocable at any time, such property of the United States under his control as may not for the time be required for public use," such leases to be "reported annually to Congress;" but does not prescribe as to the disposition of the moneys received as rents. Sec. 3621, Rev. Sts., provides for the disposition of public moneys coming into the possession of any person, and par. 608, A. R. (1889), directs that "the face of the certificate or receipt" shall "show to what appropriation" the funds belong. Advised that it would be sufficient for any post (juartermastcr or other dis))ursing officer into whose hands such rents should come, to note the character of the payment upon his certificate, leaving it to the War Department to report the same in the aggregate to Congress at the end of each year. 59, 309, ^lay, 1893. 'U. S. V. Nicoll, 1 Paine, 646 (Fed. Cas., 15,879). PUBLIC PROPERTY. 581 PUBLIC PRINTING. 2085. Advised that, under the prohibitory provisions of the act of Jul}' 7, 1884, c. 332, a work entitled the ""Manual of Calisthenics" cannot legally be authorized or caused, by the Secretar}- of War, to be printed by the Public Printer, unless the same be, in the words of the act, ''necessar}' to administer the public business.'' The term ''necessary'"' has been construed, in similar connections, as meaning — not absolutely necessary, but reasonably necessary or clearly condu- cive, to the object expressed. (See the Legal Tender Cases, 12 Wal- lace, 457. 539.) The Secretary of War should be assured that the proposed publication would clearly and materially conduce to the due administration of the public business, })efore causing the printing to be done l)y the Public Printer. 50, 442, December, 1891. Similarly advised in regard to a translation, l)y an artillery officer, from the Russian, of lectures on the subject of the "Resistance of Guns and Interior Ballistics"; a precedent being cited of a work by a surgeon of the army, entitled "Notes on Military Hygiene", held by the Sec- retarv of War (April, 1890) to be valual)le though not necesmri/ in the sense of the statute. 50, 444, Decemhev^ 1891. 2086. IL Id that the Secretarv of War " is authorized by law" (see public printing and 1)inding act. of January 12, 1895) to have the Commissary's Hand Book, or anv other similar work needed in the business of the War Department, printed at the Government Print- ing Office and paid for from the War Department's allotment of the appropriation for "public printing and binding". Card 1679, Ave/usf. 1896. PUBLIC PROPERTY. 2087. The Constitution — Art. IV, Sec. 3, par. 2 — provides that "the Congress shall have power to dispose of, and make all needful rules and regulations respecting, the territor}' or other property belonging to the United States." The scope of this provision is most compre- hensive; the authorit}" conferred thereby upon the legislative branch of the Government being held to extend ivom the formation of a Terri- torial government to the matter of the sale of a small amount of per- sonalty. That neither land nor an}' interest in land of the United States can be sold or otherwise disposed of ])ythe head of an executive department or other executive official or by a military officer, without the authority of Congress, is settled law.^ VII, 404, March., 186I{.; 'This fundamental rule of our public law is expressed l)y Attornej' General Hoar (1.3 Opins., 46), as follows: "I am clearly of opinion that the Secretary of War cannot convey to any j)erson any interest in land belontring to the United States, except in pursuance of an act of Congress expressly or impliedly authorizing him to do so." And see I'nitetl State.s r. Nicoll, 1 Paine, 646 (Fed. Cas., 15,879); Seabury v. Field, McAllister, ] ; United States r. Hare, 4 Sawyer, 653, 669. 582 IMTKLK' I'ROPERTY. XXIII, 135, Juhi. 1866; XXX, 605, August, 1870; XXXV, 307, Apnl, 187 J,; XLII, i\S3, J/^///, 1879; LTV, GOO, Fehruanj, 1888. In the absence of .siu-h jiiithority, the lands of the United States, whether held by original proprietorship, or acquired by purchase or gif t, or ])y conquest, cannot, even for a purely benevolent or religious purpose, be given away any more than they can be transferred for a ^•aluable consideration. XXXIX, 337, December, 1877. Nor (without such authority) can they be conveyed temporarily by lease, whether for a short or long term/ XXXII, i^ 2[ai/, 1871; XXXIX, 336, Dectmhcr, 1877; XLII, 230, 2it,mler, 1873; XXXV, 554, xiugust, 187 J^; XXXVI, 207, Jaiuianj, 1875; Card 211, August, 189^. And such rights when given by Congress, can be exercised only within the terms of the grant. Thus whei'e by an act of Congress there was granted to a railroad company a limited and detined right of way across a military reservation (occupied by a military post), held that the tt)m})any was authorized simply to construct a track or roadway, antl 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.-' XLl, 211, .^/vV, 1878; XLII, 187, March, 1879. So Jield that the Secretary of War could not, of his own authoritj', grant, in consideration of the payment of toll to the United States, a riiiht of way over a bridge belonging to the United States. XXXI, 'See Friedman v. Goodwin, 1 McAllister, 148, where a lease made, by the post eoinmandor at San Francisi-o, t)f a part of a "government reserve," though approved by the miUtary governor of tlie then Territory and also by the Secretary of the Inte- rior, was hcM void because not authorized by Congress. The court declares the "utter iiMpdtcncy of any attempt by an olticer of the Government to alien any land, the i>ropcrty of the United Stati's, without the authority of an act of Congress;'' adtUng that "the President with the heads of the departments combined" could not effect sucii an object. .\nd see 4 Opins. At. Gen., 480; 9 id., 476; 18 id., 46; United States ('. Hare, 4 Sawyer, t>70-l. In the last case the court says: "The Secretary of the Treasury cannot execute or approve of a lease of any property belonging to the United States without special authority of law." Hut see now the act of July L'S, lSili3 (27 Stats., 321), which gives the Secretary of War authority to lea.-ic for a period not exceeding live veal's and revocable at any time, pubhc pmpertv under his control (except mineral and phosphate lands), not for tlie time n'tiuireil for iml)lic use. ■ In mnuerous statutory enactments such a right has been expressly given by Con- gress as the only authority competent for the purpose. *See this opiniun atlirmed by the Attorney General in 14 Opins., 135. PUBLIC PROPERTY. 583 136, January, 1871; XXXVIII, 41, April, 1876. So held that the Secretary could not legally grant to a company or individual the right to erect and maintain for an indefinite period a hotel on the military reservation at Sandy Hook/ XXXVIII, 351, JVovemher, 1876. 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 Columbia for the erection of a hospital. XXXVI, Qer, 1873. But hid that the Secretary of War was not empowered to accede to the application of an individual to estab- lish a ferry across a river within the limits of a militar}'' reservation, where what was asked was not a mere license revocable at the will of the Secretary' but a permanent franchise and g-rant of an exclusive usufructuary interest in the premises, including- even the rig-ht to charge tolls to the United States. XXXVIII, 564, April, 1877; XXXIX, 40 7, 2L(rch, 1878; XLII, 454, Beceuiier, 1879. And simi- larh' /leld in a case of an application to be permitted to erect and maintain a permanent bridge across a river forming a l)oundar3' of a military reservation, one end of which was to be built upon the soil of the reservation; the application contemplating- not a mere license revoi-able at the will of the Government, but a permanent right of propert}' in the bridge involving- an easement in the land. XLIII, 167, January, 1880. Also similarly Jield where the application Avas to bore for gas on a military reservation and for the exclusive privilege of piping- and disposing of the same, if found in paying quantities. Card 285, September, 1894-. (See License.) 2090. The provision of the Constitution in regard to the disposition of public property applies to i^fi'sonalty equally as to realt}'. Thus no executive department or officer can be empowered, except by the authority of Congress, to dispose of personal property of the United States.' XXX, 605, Augu.^t, 1870; XXXVIII, 11, December, 1875; » See 14 Opins. At. Gen. 125. *The leading ca.-^e on this point i^ United States r. Nicoll, 1 Paine, 046 (Fed. Cas., 15,879), in Avhicli it was held that a sale or loan, by the conunandant of an arsenal, of a quantit}' of lead belonging to the United States, was illegal and invalid. The court say: "The Constitution declares that 'Congress shall have power to dispose ot and make all needful rules and regulations respecting the terri- tory or other ]>n>perty belonging to the United States.' Xo pul)lic 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 sul)- ordinate agent. No law has been shown authorizing the sale of this lead; nor is any such authority to be inferred from the general power vested in any of the depart- ments of the Government. The i)ower, if lodged anywhere, would seem most appn >- priately to belong to the War Department. But there is no such express or implied power in that department to sell the public property ])Ut under its management." And .«ee tlie .«ame principle rec(\gnized in an opinion of the Attorney General (16 Opins. 477) , in which it is held that the Secretary of War was not empowered to sell arni.t to a State, in tlie aV)sence tera})er , 1890. And held that, in the absence of authority from Congress, a purchase of lots in a city cemetery, for the burial purposes of a neighboring military post, would not be legal or operative. 31, 426, April, 1889. 2107. The statutory authority relied upon for the purchase of land b}' a head of a department should be clear and indisputable. Thus held that authority to purchase additional land for the interment of soldiers could not be derived from the general provision of the annual appropriation act, appropriating a certain sum for maintaining- the existing national cemeteries. XLI, 50, Novemher, 1877. 2108. A statute conferring a speciiic authority to purchase certain 'See 7 Opins. At. Gen. 114, 121; Ex parte Hebard, 4 Dillon, 384. . ■•'See this opinion concurred in by the Attorney General, in 16 Opins. 414. As statutes specially authorizing the acceptance of donations of land, note the early acts of March 20 and May *), 1794, and, later, the acts of Feb. 18, 1867; March 3, 1875; June 23, 1879. That authority, however, to purchase, and, a fortiori per- haps, to accept a gift of, the necessary Ian1. This order does not restrict the officer's rank to the rank of his present commission, but gives him the benefit of prior rank back to the date of the commission of the junior officer previous to the transfer. The order seems to be based upon the intention of giving officers the benefit of their previous rank so far as it can be done without injury to others, and 3"et this intention has been practically limited to the case of voluntary transfers or exchanges. 60, 210, Jime, 1893. (See 52 A. R. of 1901.) 2128. An officer was appointed second lieutenant of an infantry reoiment, June 15, 1868, and this date fixed also his relative rank as to other second lieutenants of the army. Under the act of March 3, 1869, consolidating his regiment with another infantry regiment, he became supernumerary, and was assigned to a cavalry regiment, July 14, 1869, and recommissioned as a cavalry lieutenant as of the latter date. Ifeld that he should have been so recommissioned as of the date of his original appointment.' 38, 295, February, 1890. 2129. The relative lank of officers of the same grade and date of appointment or conjuiission is determined "by the time which each may have actually served as a connnissioned officer'', when these periods are unequal. This being the rule undei- Sec. 1219, Rev. Sts., and army *It was held otherwise in thi;.' case l)y the Attorney Cieneral (16 Opins. At. Gen. 291) whose views were not concurred in. EECOMMENDATION. 595 regulations, it should not be set aside by assignment of dates in the nomination and confirmation. ^ Cards 2805, Decemher, 1896; 744:9, Decemher, 1899; 7790, 7869, March and Ajn'JI, 1900. 2130. Fifteen candidates for assistant surgeons in the regular army having passed the required examination were, on December 13th, 1898, nominated to the Senate, and, on Dec. 24th following, were dul}- com- missioned with rank as first lieutenants from Dec. 12, 1898. There was examined with them another candidate who passed in professional requirements, but failed physically. He was subsequently reexamined phj^sicalW and on June 14, 1899, was given a recess appointment as assistant surgeon with rank as first lieutenant from that date. On a recommendation that, if practical)le, he be commissioned with the rank of first lieutenant to date from Dec. 12th, 1898, and that his name be placed on the register in accordance with the merit roll on file in the Surgeon General's Office, Jield^ that it would require an act of Congress to carry such recommendation into efi'ect. Card 7449, Decemher, 1899. 2131. The act of March 3, 1899, making appropriations for the sup- port of the regular and volunteer army, appropriated a certain sum to pay the company and regimental officers of the special immune regiments (volunteer army of 1898) for certain time that elapsed after they had reported for duty and prior to their being commissioned. Held that this time should not be counted as part of the time which each may have served as a commissioned officer, in fixing relative rank between officers of the same grade and date of appointment and commission under sec. 12U9, Revised Statutes and par. 11, of the Army Regulations. They were not "commissioned officers of the United States" prior to being "commissioned;" and therefore no time prior to their being commissioned should be counted as time actually served as commissioned officers of the United States. The appropria- tion act simply provided for their being paid for time lost by them after reporting at the place of rendezvous and prior to their becoming officers of the army; was indeed a recognition of the fact that they were not in the service during the period named.* Card 7050, Se]?- temher, 1899; October, 1900. RECOMMENDATION. 2132. 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 ^ It was held however by the Secretary of War under date of March 12, 1900, that where the date of rank as given in the commission liad been fixed by the joint action of the President and Senate, it could not be changed except by authority of an act of Congress. ^Compare opinion of Atty. Genl., dated Feb. 27, 1901. 59() RECOMMENDATION. such, but is merely the personal act of the members who sig-n 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, Sej^temher, 1865. 2133. Where the meml>ers of a' court martial who had joined 'in a reconunendation which had l)een appended to the record and regularly transmitted to the reviewing authority, applied to have the same with- drawn on the ground that, because of information since received, their opinions had been changed, adrised that such a proceeding would be exceptional and irregular, and that the preferable course would be to file wnth the record the application and statement of the members so that the same might be referred to and considered in connection with the recommendation. XXXIII, 580, Decemhe^^ 1872. 2134. It is of course always discretionary with a member of a court martial whether he Avill make or join in a reconunendation to clemency. Members however will in general do well to refrain from subscribing recommendations where the testimony on the trial as to the merits of the case or the character of the accused fails clearly to justify a remis- sion or mitigation of the punishment. Weak and ill-considered rec- onnnendations have not unfrequently given rise to severe criticism on the })art of reviewing officers. Thus in G. C M. O. 92, Hdqrs. of Army, 1807, the Secretary of War expresses himself as ''surprised tolind that any officer of the court could recommend remission or com- mutation of the sentence of dismissal in a case where the conduct of the officer tried was as reprehensible as that of" the accused.^ Mem- bers, in offering recommendations should be careful to state tne specific grounds upon which they l)ase the same." XXXIII, -118, Octohei\ 1872. 2135. 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 sepai'ate recommendations each signed by dif- ferent members.'' XXXVII, 121, Novetnler, 1875. 1 In G. O. 36 of 1843, the Secretary of War, Hon. J. M. Porter, in reviewing a case, remarks as follows: "The practice of the members of a court martial tirst lindins; an otiiccr guilty, and then rccoimiicnding him for clemency, is to be dejirei-ated. It is an endeavor, too freciuently madr, to transfer the responsibility of their finding to the Department of \\'ar when it should rest upon the court itself." And see G. 0. 342, War I>ept., 1S()3; (J. C. M. O. 27, ;V/. 1871. ^In G. O. 70, Dejit. of Dakota, 1870, ]\Iaj. (ien. Hancock, the reviewing authority, observes: "As the mendiersof 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 impossibh'for tlie reviewing authority to determine whether their reasons for making the reconunendation were .sutticient to justify a mitigation of the sentence. No consideration can, tiierefore, be paid to it. The sentence is approved, and will be duly carried into execution." ■'' A case in which there were two reconnnendations — one signed by a single mem- ber — is published and remarked upon in G. C. M. O. 02, War Department, 1875. RECORD OF COURT MARTIAL. 597 RECORD OF COURT MARTIAL. 2136. It is cleavh" contemplated by the statute law (see the 113th and 114th Articles of AVar, taken from the old 90th Article; also the later provision incorporated in Sec. 1199, Rev. Sts.) that a court martial shall make a formal record of its proceedings, and the Army Regulations and Court-Martial Manual 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- 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 garrison and regimental as to those of general courts i— XXIV, 540, May, 1S07 ; XXVII, 617, May, 1S69; XXXII, 130, Novemher, 1871), the Judge-Advocate General has held as follows: {a) That, in view of the requirement of the Army Regulations that " every court martial shall keep a complete and accurate record of its proceedings,"' the entire proceedings and action of the court upon the trial should be fully set forth, including the organization, challenges to members (if an}^), arraignment, pleas, testimony of witnesses and documentary evidence, motions, objections, arguments, rulings of the court on interlocutory questions, adjournments, continuances, closing addresses or statements, findings and sentence; — in short every part and feature of the proceedings, material to a complete 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, Aj^riJ, 1872. Where a sentence is pronounced, the record should contain evervthing necessary to sus- tain it in fact and in law. II, 59, March, 1863. (b) That the record of each case tried by a court martial — where several cases are tried thereb}' — should "lie complete in itself" (army regulations, now Court-Mar. Manual [1901], p. 59) and as much an entiret}", both in form and in substance, as if it were the only case tried. Each record should be separate and distinct from everv 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 supplied from any previous or other record. The proceedings in each case should be made up separately: records therefore should not be attached »But A. R. 954 of 1895, as amended by G. 0. 39, A. G. O., 1901 (A. R. 1055 of 1901), provides that testimony taken l)efore regimental or garrison court martial will not be reduced to writinij. H'ompare CotHn r. Wilbur, 7 Pick. 151. See Court-:\Iar. 3Ianual (1901). pp. 59 and 60. 598 RECORD OK COURT MARTIAL. toofether, but should l)e prepared and transmitted as disconnected documents. Ill, 402, 413, August^ 1863; XIX, 33<), Javvarij, 1866; XXXII, 130, m>V€mler, 1871. ' (c) That the copy of the convening order,) directed, b}' army regu- hitions (now Manual, p. 59) to be "set out" in each case, should properl}^ be prefixed to the proceedings, as constituting the initial authority for the existence and action of the court. XXXII, 130, November, 1871; XXXIII, 391, October, 1872. This order should of course be complete, and should exhibit, by its heading and its sub- scription, that it has proceeded from a commanding officer competent to order the court, XXIII, 636, August, 1867. 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 vio- lation of the regulation as well as the general rule that every record should be "complete in itself." IV, 607, February, 186 J^. Where subsecjuent orders have been issued, adding or relieving members or a judge-advocate, or otherwise modifying the original convening order, copies of these should follow thet)riginal or be elsewhere incorporated in the record. XIII, 384, February, 1865. In their absence it may not be possible to determine on the face of the record whether the ofllcers who composed the court on the trial were actuall}^ or legally detailed therefor, or whether the prosecuting judge-advocate, or the judge-advocate who authenticates the proceedings, was so detailed. XXI, 488, June, 1866; Card 5323, Mvember, 1898. 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 A^y. XXIX, {\()\,J<(min)e, 1891^; Card, 114, August, 189 Jf. The record need not show affirmatively that the accused was offered an opportunity to cross-examine. Where it appears that he did not cross-examine, the presumption will 1)0 that he waived the privilege. So, the record need not state that the accused was notified of his priv- ilege of being assisted by counsel. So, it need not specifically state or show that the court adjouriunl at or before 3 o'clock p. m.^ In the absence of evidence to the contrary, it will be presumed to have done so. There is always a presumption, in the absence of obvious irregu- larity, that the proceedings were regular and according to law. 44, 456, January, 1891. {J) That the record should set forth Xho, finding on eaih of the several i'harges and specifications (IX, 221, June, 186J^; Cards 5166 and 5187, 'Therein, however, no statutory requirement that a witness slionld l)e sworn in the pre.senee of the accused. '^See Circs. 12 and 13, A. G. 0., 1892. •''See note to 94th Article of War, p. 85, mde. 602 RECORD OF COURT MARTIAL. Octol>ei\ 1898)^ the proper entry as to previous convictions^ (Card 3097, Aj)fll^ 1897), and the sentence in the event of a conviction. In a case of a death sentence the record should state that it was con- curred in by two-thirds of the members.^ I, 487, Decemhei% 1862; II, 21, FthnKinj, 1863; lY, 158, Septemhe/\ 1863. Care should be taken that there l)e no variance in the statement of the name, &c., of the accused. l)etween the finding or sentence and the charges. As directed by army regidations, the record should be "authenticated" by the signatures of the president and judge-advocate. II, 545, June., 1863. Where, indeed, there are no material proceedings after the sentence, the subscription of the latter by these officers will constitute a sufficient authentication of the record as a whole. XIX, 016, 2fayy 1866. Where the president or judge-advocate has been changed pend- ing the trial, it is of course the last one, the one who was serving at the close of the trial, who should sign the record. XXIX, 604, Jan- iiari/., 1875; Card 5332, JVovttnher, 1898. Adjournments from day to day are not required to be authenticated. VIII, 507, June, 1864-- A judge -advocate appointed aJYer the conclusion of a trial would not be competent to authenticate the record of such trial. If authentication by the officer who was judge-advocate at its close cannot be obtained, the proceedings should be disapproved.^ Card 5230, October, 1898. {Jc) That, as in substance directed by par. 896, A. R. (955 of 1895; 1057 of 1901), the record should exhibit, at the end of the proceedings of the court, the action thereon — approval or disapproval, &c.— of the reviewing authority. II, 550, June, 1863. This, though it has some- times been endorsed on the outside of the record, is preferably and customaril}' written and signed within the record on a page following the authenticated judgment or other final proceeding of the court. IV, 428, DiCenH)ci', 1863. Where several cases are tried by the same court, the action of the reviewing officer should be entered in the rec- ord of each trial; merely to endorse it upon the last of a series of cases would be irregular as not a compliance with the regulation. XIX, 336, January., 1866. So it is irregular for the reviewing officer, in lieu of writing and subscribing his action in the record, to annex to it or tile with it a cop}' of a general order pronmlgating the proceed- * See Previous Convictions, ante; also Court-Mar. Manual (1901), p. 515. 2 See Court-Mar. Manual (1901), p. 58, par. 1. ^Par. 954, A. K. of 1S95, as amended (1055 of 1901), now provides: — "Every court martial shall keep a com})lete and ai-curate record of its proceedings, which will 1)6 autlienticated in each case by the signatures of the president and judge- advocate. Whenever, by reason of the death or disaltility of the judge-advocate occurring after the court has decided on the sentence, tlie record can not be authen- ticated by his signature it must show that it has been formally approved by the court and must be authenticated by the signature of the president. The judge-advocate should affix his signature to each day's proceedings. Testimony taken before regi- mental or garrison courts martial will not be reduced to writing." KECORD OF COURT MARTIAL. 603 ings and his action thereon, I, 412, JVovemher, 186'2. Where the pro- ceedings are to be forwarded to higher authority for final action on the sentence, a mere reference, as by the words — "respectfully referred, or forwarded, to the President" (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. IV, 337, Noveml)er, 1863; VII, 132, Felrruarij, 186 J^.; Card 2844, January, 1897. (!) 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 history of the case tried. The record of a revision will properly begin with setting forth a copy of the order re-convening 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 § 2252, jjost), the accused. The record will further show the action taken by the court, in making the correc- tion or otherwise, under the order, and the proceeding will be finally authenticated by the signatures of the president and judge-advocate. I, 487, Decemler, 1862; II, 97, 3£arch, 1863; IX, 653, Septeuil>er, 1S6J^; XI, 93, 113, Mvember, 186 J^; XV, oin,- August, 1865; XVII, 402, and XIX, 135, October, 1865. 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, interlineation, &c., being irregu- lar and improper. XI, 93, siqyra; XVI, 202, May, 1865; 23, 345, April, 1888. {))() It is the better practice that all the proceedings — even those that are irregular — which transpire in connection with a trial or at a revision should bo set out in the record for the information of the reviewing authority. XXVI, 251, December, 1867. It is however not necessary to encumber a record by spreading upon it documents, or other writing or matter, excluded l)y the court. But the character of the writing and the grounds upon which it was ruled out should be specified. XLIX, 614, December, 1885. 2137. Among the minor points held by the Judge- Advocate General, in connection with the subject of the form of the record, are the fol- lowing: That the several stages of the proceedings of the court should appear in the record in the proper order; thus, that the swear- ing of the court should not 1)e recorded before the statement as to whether the accused objected to any of the members, &c. XI, 1, 604 RECORD OV COURT MARTIAL. October^ 186Jf.. That, in its statement of the opening of each day's ses- sion, 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, Fchruary^ 1868; XXXIV, 107, March^ 187S. Such a reading- however, though desira- ble 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, N^ovember, 1866. That there is no legal objection to printing the record, or any part of it (such as the orders, charges and specifications, where numerous), provided of course the signatures of the president and judge-advocate are written by them in person. XIII, 384, Fehruari/, 1865. That the record will conveniently and proporl}' l)e endorsed on the outside, or cover, so that the name of the accused, and the court by which he was tried, with the time and place of trial, &c., will be apparent without opening and examining the i)r()ceedings. XXXI, 244, 2farch, 1871. 2138. Unless it clearly appears to the contrary on the face of the record, it is in general to ho j)?'esnmed therefrom, not onh^ that the court had jurisdiction in the case, but also that the proceedings were suffi- ciently regular to be valid in law." XII, 353, Fehruary., 1865. 2139. Where the proceedings of a court martial have regularly ter- minated, and the sentence has been contirmed and ordered to ))e exe- cuted by the proper and linal reviewing authorit}-, the fact that the record has since been lost does not impair or affect the judgment of the court, and constitutes no legal ol)stacle to the enforcement of the penalty. IX, 238, June., 1864- But where the record of the trial of a soldier who had pleaded not guiltj^, and in whose case considerable evidence had been introduced, was, by a casualtj^ of war, lost before any action had been taken upon the sentence by the reviewing officer, » See Court-Mar. Manual ( 1901) , p. 60, par. 2. '^ ll(_)\vever desirable it may have l)eeu, in view of tlie numerous and serious de- feets fuHiuently oceurring in the records of courts martial during the war of the Kel)ellion, and in order to induce a greater precision and uniformity in the prepara- tion of such records, to treat (as was not uufrequently done) the more grave of these defects as fatal to the raliditu of the proceedings or sentence, it is conceived that the same, in gem-ral, might jiroperly have been regarded, and may now be regarded, as only calling for, or justifying, u disapprnrnl of tlie proceedings. It is the effect of the ruling (if the civil courts that where the court on any trial was legally constituted, had jurisdiction of the case, and has imposed a legal sentence or judgment, every reastniable 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 Hutton r. Blaine, 2 Sergt. c*i Rawle, 75, 79; ^loore r. Houston, 3 id. 197; Trinity Cluu'ch r. lliggiiis, 4 Robt. 1; Edwards r. State, 47 Miss. 581. Anil it is further held that the regularity or validity of the minor details of the proceedings may be shown by evideni'e outside the record. Van IKnisen r. Sweet, 51 X. York, :57S. Similarly — it is believed — no omission or error in a record of court martial, not in contravi'ution of express statute, should, as a general rule, be regarded as absolutely invalidating RECCED OF COURT MARTIAL, 605 hdd that, unless the court coukl l)e reconvened and a new record could be made out from extant original notes, the proceedings, inasmuch as they could not be intelligently reviewed or formally approved, should properly be considered as inoperative and the sentence of no effect. VI, 582, Becemher, IHG.'^,. Where the record of the trial of a deserter was destroyed b}- lire before it could be acted upon, and he was thereupon restored to duty, held^ that the destruction of the record before action thereon had in the particular case, the legal effect of an acquittal and relieved the desertei" from the forfeiture of pay due at date of desertion. 55, 181, Amjnxt, 1892; 65, 338, June, 1891^. 2140. The legal record of a court martial is that record which is finally approved and adopted b}" the court as a body, and authenticated b}' its president and judge-advocate. The court as a whole is respon- sible for the record; and the instrument which it approves as such is its record, however the same ma}" have been made up. It is immate- rial to the sulficienc}" of a record whether the same was kept or written by the judge-advocate or a clerk. So where a clerk or reporter, appointed and sworn to keep the record, did not act, but the record was prepared by the judge-advocate or some other person employed by him to assist him, Jield that this circumstance did not affect the validity of the record as finally approved by the court. XLIII, 346, Jum, 1880. 2141. The record of a trial by court martial should include a record of meetings where no business is transacted, together with a statement of the reason why none was transacted. XLVIII, 200, Jan nary, 1884- 2142. It is not essential that the record of the court should show that the judge-advocate called the attention of the accused to the fact of his privilege of testifying in his own behalf. G. O. 75 of 1887 the proceedings where there remains enough in the record fairly to warrant the pre- sumption that the legal requirements have been complied with, or where the review- ing authority can supply the defect from his own official knowledge, or from current orders or other satisfactory evidence readily available to him. Thus where no copy of the convening order accompanies the proceedings, but the reviewing authority, from the fact of having issued it himself or from the records of the command or oth- erwise, is officially ajiprised that the court was duly convened, the proceedings are not 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 proceed- ings of a general court martial, an irremediable defect in a vital particular, as the fact that the court was composed of but four members, the proceedings and sentence, if any, must be held inoperative, since the statute law — Art. 75 — has fixed five mem- bers as the legal niivinmm 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 grave charac- tiT, properly warrant a dimppruval of the proceedings — in case it cannot 1)6 removed by a revision l)y the court on l)eing reassembled for the purpose, — will not in general, it is held, justify the reviewing autliority in pronouncing the proceedings to be void, or in treating them as necessarily Avithout legal effect. (;ni; i;i':('n|;|» ol' Col'IM' MAIM'IAI,. I'tMlllircs niil \ I lull I III . lie done " lirj'olf I In- iissclll I )li li;^ of (III' (( Ull't Z' 36, In:., <>rti>h,i\ iss'.i. 2143. Tlic record of ii riiiii'l iii:iili;tl iiiii'^l nIiow aHiriiiiiliv cly \n lial r\i'r ii iiiiiilr li\ ■•i/tf/i//(\ csNciil iai (o ils jiirisdirl ion and I lie lrrociM'din;.';,s,' for t'Miniplc, llial. Ilic mk^imIx'I'm and jiid«^(' ad\ (tciUo were .sworn lis enjoined l»y (he SKli and S;Mli Arlicies id" W'lir. So re|iealedl\' /n /(/ llial if llu^ reeoi'd failed lo sliow llial llie eoiirl and jlid'^'e ad\tieale were sworn, and (he omission eoiild no! he supplied l»y proceed inf^s on i"e\ isioii, (lie s(•|||(>n(•t^ w as void; l>u( I lial if I he coiiiM had iio( lieen dis>,td\ ed, I lif oiiy inal re\ iew inj^' ani horily , or his successor ill coiiiinand, the record ha\ iiio Itccii ( ransnii((('d (o him, eillier Itid'ort^ or r(/?t^int^• (o make the record con- I'orm (o (he actual fac(s. in o(hei' words (o speaU (he tiulli. I, IS7, I)(Mriiihn\ /S(!,'; U, 154, 155, .l/'/v7, /Sh-!; 1\, (;5;i, Srr/ii/>,/\ ISC',; XIX, \VM\, Jtiini<(nj, iSiUi 3144. .\ mer»^eh^ricIll i»n'or in ( he sptdlinj^' »d' (h«> name of ( he aicused, lca\ in<4' it. Idtin ,s(>tu(iif<. Is no( a case of misnomer and does ihi( a(l(>c( (he \alidi(y of (he ])roe(»edin^s us rt>corded. 25, 'J.'! I, Ji(/i<\ ISSS. 2145. The recoiil of a coui't of jus(ice consis(s id" (wo ])ar(s which ma\ I'c denominaleil the sul»slan(i\c and (he judicial por(ions. In (he former (h^^ sul»s(an( i\i> portion t ht> court records (ma kt's a i-t^conl of) or n((es(.s i(M (>w ii y/'cr, rf////f/v and i/c/s. I'o I his (record or ut((>s(ati()n) unerring' \t'iity is a(lril>uted l>y the law, which will neither allow the record (o Im< co id indicted in t hese respects nor (lu^ facts thus recorded or a(tes(e»l, (o he pro\ t>d in an\ o(her way than l»y (he protiue(ioii l>t> true in llu> prcscril>t>d maniuM'.' Thi^ SlipriMue ( "oiirt {^\' llu> I'liiti'd Sla(es ha-- repeatedly ludtl (ha( u cour( martial is a court posstvssiiio' aiuph^ and inclusive iuiisdii'(ioii to trv and delei luinc a (•cr(ain class {^\i cases, and (ha( i(.s fuuetioJis JU'O thosiMd' a com t aiul its acts judicial procci'din^s, etc. ' These pnu'Cinl- iiit^'s and a»'(s arc all recorih'tl, and (lu^ record (Iuin made is iiUimatidy (ile^l in i(.s propiM" place as (he rectud i^( (lu> juilicial proceediiiys had. W lu'ic (hereft>re, after a rcci>rd of ii i^'c nigral couit martial had Ixhmi ihilv a»(cd upon and the scntcin*' (dismissal i>f an otlicci ) executed, the ilismisseil olliccr (ihnl adidav its (o (he (^(Ve^'t tha( tho tiv>^(imi>ii\ o( one witness had iio( l>cen iiuuhMi par( oi ( ht> rec(>rd (whlcli in fac( ilid iio( sht>vv (hat aiiv •^uch wiliuvss (t\s(i(iiHl) and asked (ha( (lu^ sentence l>e set "Kuuklor. V.S., 12a. U.S., MS. " tlesl, l'rini"iple.i t>f I0videiu"t>, p. 57S. "St^N |>ynt\-i('. Hoover, -v) llewtml, «^S; Kr (xti'tf Keed, UK) I'.S., i;i; Smith '. Wliil- nev, !((> ((/., 1(17; .li>hnsou (. Saviv, (5S (ror(l conltl not \>v lluis coiil rii(li('(o(i or iiMiH'ticliod, or ilio valiiliiv of Iho .sonloiu'c ({UOHtioiuHl.' Canl MtA, Mtt/, /.s'.W. 2140. h i'^ i(>(|nii'«Ml l>y :iriny rt\onl;ilio»\s. (IimI irviiMviny olli<'ors sIimII s(!iI<" !i( (111' (Mul of tlic |)ro('(MMlin!^M in (>!i
  • ir dt'cisioii mihI orders (luTeon, l»ii( (li(>r(>is no l;i\\ i(>(|nirinL:' litis of (In' rr(>si(j(>n(. His M|>|)i'o\:d of (in* s«Mi((>nco of disniissiil by courl niiirliMi nui ( l)t< his piTsonid in'( ImiI (hr Ijiw «lo(\s no( prcst rili(« ( ln> ni!nint>r in \\ liicli \\o .sliidl ('onnnunic,'i((' sncli :n'(ion, mid in (lie !il>s(>nre {>( sutli ;t iho\ ision, it would sreni (lint lie insiy leyMlIx (oniniiiniciHe liisnclion willi rid'er- «>Met> to eoiii( niMr(i;d eiises by nit>!iiis of (lie onliiKUN eoiii( inMr(iMl ordtM'. riius wluM'e (In^ reeord of m (rial, inxoUini;;' disniissiil of nn o(lie(M-. eonlMinetl no tMiliy <*( (lie .Me(in( \\:is su(rieien( mid K'^mI evidence of such Me(ion." 22, I'Us !•', hl'iiiii'ii, ISSS. RECORD OK SERVICE '21 '1 7. No olliei:il ii'i ( h(> \\ :i r i >(>| >,'i r( iiieni , or o( her e\ceuli\ i- oliieer, is eiujiow cred (o ehmiL^e m reeord o'i f'tirt (o so iiI((M' ( Iii> olliciiil reeoi d of !» ,soldi(M- (h.'U i( sIimII sbile (liii( msm f.-iel wliieli is no( :i fMe( , whilt- (>vef IMMV be (he (>(iui(i(-s of (ln> eMs(«. 1( cmi not, for exmuple, bo ni.'ide (o :i|>|)e!ir on such m record (li;i( (li(« soldi(>r Iims been d isch;i riLjed, nius(ered ou(, reenlisted, or mustered in, wImmi in fiiet he Iims not Ikmmi. C'onnress mNmu^ cmu j^i'sud iidief in such esises b\ ;ni( hori/.ino' such Clllrics of record MS would in e(lec( :icconi|tlish (lieobjee( sought — US it 1ms iM(hM>d done in repeMliMJ instMin-es. 36, ;ii)V, ;il>;{, Mutl 30, 1 7r», (>('tolhi\ ISS'J; 40, 'Jt':., ,l/'/v7, IS!)!}; ( 'sird SlMlL', Srptmilhr, I'.HHK The H'enerMl rule is (h:i( (uily erroneous r«>eords sIimII be Miiiende(|, mid (he objeet of (heir :iiuendnien(^ should b(> (o iumU(» tluMM ,MtMlt> (he tiMith (Im' <'ofree( ion b\ (Ii(> person who lunde (lieiu ov sueh(Mi(ry IheciMMi by 'S(«c till' u|(iliinli (if till' Mli.llli'N ( irliriJll ill liliHCMHC, pllhliHilCI I III ( i . O. "Jl , A, ( i. O, , lilUO, I III' l;il Icr |iiirlinii lit \\ liich rctcriiii!', to tin' irrnni nl' I lir ci niil iiiMi'tiiil, I'i'iiiIh IIH i'..ll..\\s: "'riie rci'or.l is llitit wliii'li tlii' I'l'iirt errlilv to luive t iMiiMpiri'il mi t lie (liiil, iunl emiioilii's till' nrtioii uf tlie eiiiirt. 'I'lie I'.'irl ilijit tlio cuiiit in due iiml Iririil I'lirm uiiiiDiiiii'i's (liMt it 1 1 ill SI) Mini su, or tliiil SI) mill HI) tr!iiis|)irci|, in.'iKrH t liiit t lir n'ronl tiiiil (III' I'.'irt, :nnl III) one e\i'i'|)l (lie I'Diirt ilscli 1:111 hiw liilly iiltcr I lint I'l-roiil. II' it wcic to l>e hi'lil otln'rwist', tlii'ie is not n record lilcd in the \\';ir office ( luit coiild not besnhjecl lojittjick by cr /nnVi' iiflidiivits Mini IIimI loo mI n time when llie iifliceiM of (he conr( inii;ht he di-Mil oi' ncMtliTcil (o f ln> (>iids of t he eiiiih Mini iiiimMi' lo defend (he Moleinn ceitilicMte wliieli theyniMile; Mini mII (he jiiily:iiieii(M of eoiirtH iiiiirtiMl mh (lied Mild Met I'll on would he open lo perneliiMl eontrMilii'lion on Hiil)Mei|Meiit MSsei'lioiiH of iideresteil pMi'ticM w liieli it would lie nnjioHHihle lo meet or disproxc." \^ee L' Opiiis. At. (leii.. (l!l; 7 /./. IT'J; U iliiMiiiH i\ V. S., 17 I'eterH, IW, in < ,.miee- tioii with K'lmkle r. II. !S., ll."J U. S., M[\. 608 REDUCTION TO RANKS. another as uiay be duly authorized)/ The exception to the general rule is where a statute requires a certain amendment to be made. But in such an instance the statute should ])e strictly observed and applied only to the class of cases falling- within its purview. 56, 3.52, Noveiii- her\ 1S92. REDUCTION TO THE RANKS— OF COMMISSIONED OFFICER. 2148. Reduction 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 — b}- the act of March 3, 1863, c. 75, s. 22; and, upon conviction of the otl'ence of neglecting or refus- ing to turn over to the proper official any captured or al)andoned property coming into the possession of the party — bv the act of March 12, 1863, c. 120, s. 6. This punishment which involved a dismissal of the officer (XVI, 484, Au/judj ISGo) is no longer legal; the statutory provisions indicated being impliedly confined in their application to the period of the civil war (or for a limited period succeeding the same), and not being re-enacted in the Revised Statutes.^ REDUCTION TO THE RANKS— OF NON-COMMISSIONED OFFICER 2149. A court martial, in sentencing a non-commissioned officer to be reduced to the ranks, is not empowered to direct that when reduced he be transferred to another regiment or company.^ XI, 205, Decem- hei\ 186^. 2150. The warrant or certificate given to a non-commissioned officer is as nuich the personal property of the individual as is the commission given to. a commissioned officer. In the absence of anj^ statute or regulation requiring that a sergeant or corpoi'al shall surrender his warrant on being reduced to the ranks (or dishonorably discharged), he may retain it with the same right as that l)y which an officer retains his formal commission on being dismissed. XLI, 310, Juh/^ 1878. 2151. A sergeant deserted and upon the reconunendation of the com- pany commander his successor was appointed l)y the regimental com- * See § 2452, post, and note. ^ Canes of officers sentenced to this punishment, upon conviction under the first named statute, are pubHshed in G. (). 27, War Dept., 1864; do. 80, Dept. of the, Jal>/, 1867; XXXVII, 613, June, 1876; LVII, 89, October, 1888; 32, 101, J%, 1889. 2165. Where a soldier, prior to his entering upon a term of imprison- ment under sentence, has been held confined in the guard house, it has been a practice of the War Department to credit him with so many days on his term as he was so confined in excess of thirty daj^s. This is a form of remission of so many daj's of the term imposed by his sentence. 57, 871, January, 1893; 62, 368, Mvemher, 1893. 2166. After a sentence is once unconditionally remitted, it cannot be renewed or revived. An order purporting to revoke the order pro- mulgating the remission, would be void and of no effect. Card 2170, Axyril, 1896. REMOVAL OF DISABILITY. 2167. The so-called ''removal of disability," sometimes ordered by the President during the war of the rebellion, was a form adopted in cases 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 disa))ility to re-enter the army. It simply amounted to a waiver of objection on the part of the Executive to the reappointment of the officer 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, notwith- standing his previous dismissal. Its effect was to remove the stigma of the dismissal, and, if a reappointment followed, to fully rehabilitate the party. This form had of course no proper application to officers of the regular army, and the term "removal of disability" has no longer any significance in our service as applied to cases of dismissal. V, 446, December, 1863; XXIX, 431, Mvember, 1869; XXXVI, 330, March, 1875; XLI, 675, Sejneniher, 1879. 1 Compare Perkins v. Stevens, 24 Pick. 277; Lee v. Murphy, 22 Grat. 799; 1 Bish. Cr. L. § 763; 2 Opins. At. Gen. 329; 5 id. 588; 8 id. 283-4. ^ Ex parte Garland, 4 Wallace, 380. KEPORTER, 613 REPORTER. 2168. The power to appoint the reporter, under Section 1203, Rev. Sts.,^ is vested exclusively in the judge-advocate and cannot be exer- cised by the court. The employment, however, of a stenographic reporter should be resorted to only in an important case.^ 11, 515, June, 1S6S; XXXIV, 232, Ajyril, 1873. 2169. The statute does not indicate b}" whom the reporter shall be sworn. In practice he is sworn by the judge-advocate; a form of oath being prescribed in the Manual for Courts Martial. If the same party is emploj-^ed as a reporter for more than one case, he should, properly, be sworn anew in each case.^ Cards 294, Septemhei\ 189 1^.; 4646, 4647, July, 1898; 5169, Odoher, 1898. 2170. Par. 959 A. R., provides that when a reporter is employed under section 1203, Rev. Sts., he will be paid not to exceed ten dol- lars per da}', but that "in special cases when authorized by the Secre- tary of War, stenographic reporters xnsij be employed at rates not exceeding 25 cents per folio (one hundred words) for taking and sub- scribing the notes in shorthand, and ten cents per folio for other notes, exhibits and appendices." Held that this regulation requires the action of the Secretary of War in each special case, and does not contemplate a delegation of his authorit}" in the matter. Card 5564, December., 1898. 2171. Paragraph 959, Army Regulations, as amended (see 1063 of 1901), authorizes payment of mileage over the shortest usually trav- elled route at the rate of eight cents per mile, to a reporter of a court martial and his assistants while going from the place of emplovment to the place of holding the court, provided the latter place is more than ten miles from the former. Held, that the regulation does not authorize payment of mileage for the return journey. Card 7101, Septeiuher, 1899. 2172. By circular 22, A. G. O. of 1898, the employment of enlisted men as reporters for courts martial was authorized "without extra expense to the United States." Under A. R. 960 (1064 of 1901), '^ no person in the military or civil service can lawfully receive extra com- pensation for clerical duties performed for a military court" and sec. 'This section provides: "The judge-advocate of a military court sliall have power to appoint a reporter, who sliall record the proceedings of, and testimony taken l^efore, such court, and may set down the same, in the tirst instance, in short hand. The reporter shall, before entering upon his duty, be sworn, or attirmed, faithfully to perform the same." 2 See pars. 958 and 959, A. R. (1062 and 1063 of 1901). ^See Circ. 11, A. G. O. 1894; also note 5, p. 29, Court-Martial Manual (1901). That the reporter should l)e excluded from the court during its deliberations and not permitted to record the findings or sentence, see § 798, ante. 014 KEQUISTTION. (» of the tu-t of April -2Ck 1S<)S (;>0 Stuts. 365), provides "that in war time no mlditioiial iiiereasecl eoun)eiisation [/. <. additional to the t^Ye^ty ]>er centuiu iiu-rease] shall be allowed to soldiers perforniino- what is known as extra or special duty." //dJ that under the regu- lation and statute referred tt) no extni pay can be allowed an enlisted man for services as reporter. Cards 5434, Decemher^ 1898; 7334, Aor, nih, /•, 1899. 2173. The army appropriation acts now appropriate money "for expenses of courts martial. ((Uirts of inquiry, and compensation of report(M's and witnesses atteiulinu' the same." Kt>porters for courts of incjuiry may therefore l)t> paid out of such apprt)priation. If the emph\vnuM>t of a reporter for a board of officers should be authorized by tlu> Secretary of War. payment for such service wovdd have to be made from the appropriatit)n for the contingent expenses of the army. Card ()!>T1, Septetnher, 1899. REPRIMAND. 2174. A court martial, in imposing the punishment of reprimanru- ary, 1878. 2187. A resignation takes effect onh' upon acceptance by competent authority and notice of the same given to the officer. 36, 337, jyoi^em- hei\ 1889; 42, 370, August, 1890. The acceptance of an officer's resig- nation becomes operative and severs him from the military service, upon his receiving either actual or constructive notice of such accept- ance.' 50, 458, Decemlei\ 1891; Card 6409, May, 1899. 2188. It is an established rule that when an order has been forwarded in the regular wa}^ to an officer's regiment it will be presumed, unless there is something to indicate the contrarj^, that it reached its destina- tion and also that it was delivered to the officer affected thereby, unless he was absent from his regiment; and if he was absent without 'Barger v. United States, 6 Ct. Cls. 35; Mimmack's Case, infra. And compare the wording of the 49th Article of War. That an officer is effectually detached from the army by an acceptance, duly communicated, of his resignation, and cannot thereafter be restored to the military service by a revocation of such acceptance, or bv anvthing short of a re-appointment, see the leading case of Mimmack r. United States', in 10 Ct. Cls. 584, and 7 Otto, 426; also, 12 Opius. At. Gen. 555; 14 id. 262. ■^2 Opins. At. Gen. 406; 14 id. 261. ^6 Opins. At. Gen. 4.56; 10 id. 229; 12 id. 557. ^See, to a similar effect, 15 Opins. At. Gen. 469. * Compare § 1204, anU. 618 RETIREMENT. authority, the receipt of the order at his proper station is held to be a constructive delivery to him. Thus, where, in 1863, notice of the acceptance of an officer's resignation was duly forwarded to and received by his recrimental commander, but was not delivered to the officer because of his unauthorized absence, it was held that there was a constructive notice of acceptance which gave effect to the resignation, that the officer was properly thereupon dropped from the rolls, and that a subsequent order purporting to revoke the acceptance and dis- miss him from the service was void and of no effect. Card 1289, Aprils 189',. 2189. The acceptance of a resignation is an executive act which may be exercised by the President through any proper officer selected by him, as by a military commander in the field. So, where such a com- mander, during the civil war upon a tender of resignation hy an offi- cer of his command, issued an order discharging the officer from the service, held that while such action could have no legal effect as a summary dismissal, it would properly be given effect as sufficient evi- dence of an acceptance of the resignation; the commander being with- out power to summarily dismiss an officer, but having been granted authority to accept resignations. 54, 205, Junc\ 1892. 2190. There may be a tacit acceptance of a resignation. Thus, Avhere in the civil war, an officer, having formally tendered his resignation, proceeded to leave permanently his regiment, and this act was treated as a legal severance, and continued to be acquiesced in as such bj^ the official superiors and commanders of the officer, held that such acqui- escence, under the circumstances, was sufficient evidence of a legal acceptance. 54, 138, June 1892. 2191. An unqualified acceptance of a resignation is treated as an honorable discharge from the service. Cards 3569, Octohei\ 1897; 2170, Ap'ril, 1896; but where the acceptance was for " the good of the service," lield that the discharge therefrom was not honorable. Card 427, October, 189]^. RETIREMENT. 2192. The provision of Sec. 1248, Rev. Sts., giving to a retiring board such powers of a court martial and court of inquiry as may be necessary to enable it to inquire into and determine a question of alleged disabilitj^ does not authorize such a board to entertain a charge of a military offence as such, or to fvii an officer. XX, 619, May. 1866. 2193. The investigation of a retiring board is not affected by :uiy limitation of time, as is that of a court martial, viz., by Art. 103. RETIREMENT. 619 Such a board may therefore inquire into the matter of a disability, however long since it may have originated. XX, 619, 2fay, ISGG. 2194. The finding of a retiring board under Sec. 1251 or Sec. 1252, Kev. Sts., is in the nature of a recommendation, and till it is '"approved by the President" no retirement can be ordered thereupon. XXVI, 104, October, 1867. 2195. It does not affect the authority to retire under Sec. 1251, Rev. Sts. , that the incapacity of the officer may have been found to have resulted from a wound received by him while in the volunteer' service before entering the regular army. XXVI, 10-1, Octoher, 1867. 2196. Under Sec. 1252, Rev. Sts., an ofiicer, may, in 'the discretion of the President, legally be retired by reason of an incapacity result- ing from habitual drunkenness. XX, 622, May., 1866. 2197. The provision of Sec. 1253, Rev. Sts., that an officer shall not " be Wi(?Z^2/ retired from the service without a full and fair hearing before an army retiring board, if, upon 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 b}- the board, including the medical members of the board who may have taken part in the medical examination and have stated or reported to the Ijoard the result of the same.^ XXIII, 626, August, 1867; XXXI, 603, August., 1871. If the officer does not elect to appear before the board when summoned, he waives the right to a hearing, and cannot properly take exception to a conclusion arrived at in his absence.^ XX, 621, J/ffy, 1866. 2198. The provisions of Sec. 1275, Rev. 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 pay and all the pecuniary allowances of an officer of his rank. XXIX, 360, Octoher., 1869. And hdd that the fact that an officer, at the time of l)eing wholly retired, was under a sentence of suspension from rank and pay, did not affect his right to receive such full sum upon the retirement. XXIX, 645, January, 1870. But officers wholh" retired, unlike officers otherwise retired, are not entitled upon retirement to 1 The provisions of Sees. 1245 and 1252, Rev. Sts., authorizing the President to "irltolly retire" an officer, are not inconsistent with those of Sec. 1229 and the 99th Art. of" War, prohibiting tlie dismissal of officers by executive order in time of i^eace. Sections of the same statute, as these are (see Revised Statutes, post), must all be given equal force and effect, unless repugnant and irreconcilable. nt is held by the Attorney CJeneral (16 Opins. 20) that where an officer of the navy had been retired without having had, through no fault of his own, the full and fair hearing Ijel'ore the board to which he was entitled l)y Sec. 1455, Rev. Sts., and the vacaiu'y on the active list occasioned by his retirement had not been filled, the President would be authorized to revoke the order of the retirement so that the officer might have the proper hearing, before final action in his case. 620 RETIREMENT. the authorized change of station allowance of baggage, etc., to their homes. Card 2071 , February, 1898. 2199. Officers on the retired list of the army are entitled to the benefit of the provision of Sec. 1262, Rev. Sts., in regard to "service pay," in the same manner as other officers, subject of course to the provision of Sec. 1274.' XXXIV, 181, 3farch, 1873. 2200. 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, Rev. Sts.' XXXIII, 613, Decemler, 1872. 2201. Held that retired officers of the army, though relieved in gen- eral from active military service, were nevertheless, as a part of the arm3% properly exempt from the public obligations peculiar to civil- ians, and were therefore no more liable than officers on the active list to be required to serve on juries. The question, however, of exemp- tion 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 sum- mons, and there urge to the judge the objection, arising from his militar}^ status, to his serving on a civil jury. XXXVII, 55, Octoher, 1875. 2202. JItId that, under the opinion of the Attorne}^ General of June 11, 1877,^ distinguishing between the receiving of compensation for extra services and of compensation for two distinct (and not incompat- ible) 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 retaining his office in the army and receiving the paj^ of the same.* XLIII, 197, Ftbrimry, 1880. 2203. Held that the "cause " of "incapacity" intended in Sec. 1249, ^ That an officer placed upon the retired list can not, by an executive order, l)e allowed any pay greater than or additional to that authorized by statute to be paid to retired officers, see 15 Opins. At. Gen. 442. The rank and pay of retired officers are matters within the contnjl of Congress. Wood v. U. S., 15 Ct. Cls. 151, and 107 U. S. 414. ■■'A retired offirer, upon conviction, may be sentenced similarly to an officer on the active list, except that the punishments of suspension and loss of files or relative rank, are not apjiropriate to the status of a retired officer. •^15 Opins. 306. And see Id. 608, and 16 id. 7, ])ased like the opinion referred to in the text, mainly upon the ruling of the U. S. Supreme Court in Converse r. United States, 21 Howard, 463. ^Astoa person holding two distinct offices, places, or employments, see § 1812, ante, and notes. A retired officer is not prohil;)ited by law from holding office in an executive dei)artment, nor from receiving the salary thereof in addition to his retired pay. Collins v. TT. S. 15 Ct. Cls. 22; Meigs r. U. S., 19 Ul. 497; Yates v. U. S., 25 '!ruary, ISOJi,. 2204. ITeld that the law— Sees. 1248 and 1249, Rev. Sts.— contem- plated an existing and not a purely prospective and contingent inca- pacity; and that an incpiiry into an officer's general efficiency could be pertinent onl}" in so far as it could be regarded as going to show that his inefficiency, if found, was the result of an impairment of health. 35, 4!>, Septend)e)\ 1889. 2205, The act of June 30, 1882, c. 254, provides that forty years' service, "either as an officer or soldier," shall entitle an officer to be retired. Held that, in computing the forty 3'ears' service the period served by the officer as a cadet at the Military Academy could legally be counted. 49, 379, October., 1891. Also held that the cadet service can be legall}" included in computing the thirty years' service upon which an officer maj^ be retired on his own application in the discre- tion of the President, under Section 1243, Revised Statutes. Card 1699, September. 1895. 2206, The finding of a retiring board, approved by the President, is conclusive as to the facts. The board tinds the facts and the Presi- dent approves or disapproves the finding, but the law does not empower him to modify the finding or to substitute a different one. There is here a judicial power, vested in the two, and not in the President acting singly, and when the power has been once fully exercised it is exhausted as to the case.' 56, 426, December, 1892. 2207. Under the act of Oct. 1, 1890, c. 1241, s. 3, the finding of the board of examination that the officer is incapacitated for duty is wot per se final, but must l)e I'eported for the action of the Secretary of War and passed upon by him. ^Vhere the finding and report of the board have been approved l)ut not yet executed by actual retirement, there may intervene contingencies which would supersede such pro- ceedmg, as the trial and dismissal of the officer by court martial, or the arising of new causes which might make proper that the question of his disability be inquired into by a retiring board convened under Sec. 1246, Rev. Sts. But unless some such new occasion and ground of disqualification be presented, the action of the Secretary of War, in approving the report, remains final and exhaustive, and the officer iSee U. S. r. Burchard, 125 U. S., 179. 622 RETIREMENT. is entitled to be retired under the act of 1890, and cannot legally be ordered l)efore such retirino- board. 61, 148, 269, August and Sep- tember, 1893. 2208. The act of October 1, 1890, contemplates that before an officer can be retired under it, he shall be incapacitated for active service by reason of physical disability. The existence of that fact must be ascertained before the law can be applied. If an officer is regularly found incapacitated physically by an examining board appointed under the act, but before being retired recovers from his disaV)ilit3', he can- not legally be retired. Where such recovery is alleged a new exami- nation is not only proper but necessar3^ Card 1929, January^ 1896. 2209. Retired officers (except when assigned to duty under Sec. 1259, Rev. Sts., or other statutes) do not exercise public office.^ They are in fact pensionei's. The position and pay given them constitute a form of pension. They exercise no functions and receive no emolu- ments of office, but are pensioned for past faithful services or disabili- ties contracted in the line of duty. Their condition and a public office have no characteristics in common." 63, 472, Fehruary.^ 189 Jf,,' Card 2301, 2lay, 1896. 2210. The act of Congress approved July 31, 1894 (28 Stats., 205), provides that ''no person who holds an office the salary or annual compensation attached to which amounts to the sum of two thousand five hundred dollars shall be appointed to, or hold any other office to which compensation is attached unless specially heretofore or hereafter specially authorized thereto hj law; but this shall not apply to retired officers of the army or navy whenever they may be elected to public office, or whenever the President shall appoint them to office b}^ and with the advice and consent of the Senate." This legislation seems to assume that a retired officer holds a pu])lic office. This assumption is believed to be erroneous. The chief distinguishing feature of a public office is that its holder is vested with public functions'^ and this is not the case with a retired officer. The word "office"" as used in this legislation should not therefore be construed to apply to the retired list of the arm}^ notwithstanding the latter part of the quoted words would seem to indicate that such was the understanding. It is believed to have been a misunderstanding, however, and if a retired officer does not hold an office, there is, in the legislation under consideration, no prohibition addressed to him. But that a retired officer does not hold ^ As to whether they hold public office, see note 1, page 623, post. ■■^See People v. Duane, 121 New York, 367 (note 1, page 623, post). Also, note to § 1811, ante. *See under the head of " Oflice " note to § 1811, ante. Also, Mechem, Public Offi- cers; Am. and Eng. Ency.of Law (1st edition), "Public Officer," and authorities cited. RETIREMENT. 628 an office has not always, nor even generalh', been conceded/ But irrespective of this consideration the legislation does not applj^ to those whose salaries are less than twenty-five hundred dollars. Cards 1121, March, 1895; 2301, May, 1896; 8126, May, 1900. 2211. Sections 1259 and 1260, Revised Statutes, prescribe that retired officers shall not be assignable to any other duty than at the Soldier's Home and as professors of colleges. This legislation does not prevent them from holding offices outside of the regular army. Y^\ Sec. 1223, Rev. Sts., they are precluded from holding diplomatic and consular offices and this is the only existing prohibition. There is no prohibi- tion against their holding commissions in the military forces other than the regular armj^, whether militia or volunteers, and whether appointed by the President or governors of States. Section 2 of the act of July 31, ISO-t (28 Stats. 20.5), recognizes the legalit}' of appoint- ments of retired officers b}'^ the President, by and with the consent of the Senate, and such office may be office in the volunteer force as well as an}^ other branch of the Government, except the regular army. And assuming that a retired officer holds an office within the meaning of this statute, governors of States may appoint them officers of vol- unteers, provided their annual compensation as retired officers is less than twenty-five hundred dollars, even if it should be held that they do not come within the description of '' officers of the regular army" as that term is used in the tenth, eleventh and thirteenth sections of the act of April 22, 1898. Card 4051, April, 1898. 2212. Where an officer did not make the journey to his home under the order retiring him until one j^ear and a half after his retirement, his claim for mileage was disapproved by the Secretary of War June 5, 1890. ''for the reason that the journey * * * to the place he 'In people v. Duaiie, 121 N. Y., 367, the Court of Appeals of N. Y. held, in a forcible and elaborate judgment, that a retired officer did not hold an office within the meaning of a statute of that State authorizing the appointment of aqueduct com- missioners and i^roviding that ' ' they and their successors shall hold no other Federal, State, or municipal office except the offices of notary public and commissioner of deeds." The question as to whether retired officers hold offices was treated as doubtful by the Attorney General in an opinion as to whether General Sickles, a member of Congress, could receive his pay as a retired officer. 20 Opins., 686; but in this matter Second Comptroller Mansur held in an elaborate decision dated Feb- ruary 24, 1894, that "the place and rank on the retired list held by an officer of the armv is a military office under the United States." The following cases treat retired officers as holding oflices: Tvler r. U. S., 16 Ct. Cls., 223; U. S. r. Tvler, 105 U. S., 244; Wood r. U. S., 15 Ct. Cls.,'l51, and 107 II. S., 414; Franklin v. V. S., 29 Ct. Cls., 6; Badeaur. IT. S., 130 U.S., 439; Jn r^ Tvler, 18 Ct. Cls., 25; Jn ^y Winthrop, 31 id., 35; State v. De Gress, 53 Texas, 387; Case of Major Smith, 19 Opins. At. Gen., 28.3. See, also, 2 Comp. Dec, 7. Decision of Comptroller in the case of Capt. Geddes, 7 Comp. Dec. (dated February 6, 1901). In the cases of Tyler and Winthrop supra, the Court of Claims held that retired officers of the Army are officers witliin the meaning of Section 5498, Revised Statutes, which prohibits officers of the United States from acting aa agents or attorneys for prosecuting claims against the Government. 624 RETIREMENT. now calls his home at so long- a period after the date of his retire- ment cannot be considered as falling within the rule of giving an othcer mileage when retired, to enable him to resume his residence at his home.' ""' "" '■^" Applying the principle thus established to the case of a retired enlisted man who applied three years after his retire- ment for the transportation and subsistence which at the time of his retirement he was authorized to receive T)y G. O. 43, A. G. O., 1889, it "svas held that he had waived his right to such transportation and subsistence hj not availing himself of it within a reasonable time after retirement. Card i>87t>. Jfarc/t, 1S97. See Card 0460, 31ay, 1S99. 2213. JItJd that a retired officer summoned to attend a court martial as a witness is entitled to mileage for the travel involved, and to enable him to obtain the same proper orders shoidd be issued in his case. 28, 291, Xovemher, 1888. 2214. There is no provision of law or regulation authorizing the payment of the })urial expenses of a retired officer. A. R. 85 (99 of 1901) is limited, in the cases of officers dying- at a militar}^ post, to those who die " when on duty'' there, and therefore does not include retired officers who may die at a military post. Card 3662, JSaveinher., 1897. 2215. It having been reported that a retired officer, ag-ainst whom there Avere pending proceedings for alimony by his wife, was about to leave the United States to avoid the same, /lehl, that it would be legal for the proper military authority to require the officer to remain within the jurisdiction of the civil court in which he had been proceeded against; the object being to protect the service from the disgrace which he would cast upon it by evading- his obligations in such a case. Card 5946. JfarcL 1899. 2216. Forage masters and wagon masters employed by the Quarter- niasti'r General under Sec. 1137, Rev. Sts., are not "enlisted," and therefore not entitled to be retired under (existing law — act of Sept. 30, isito, c. \i-lo. 51, 466, Jcuniary. 1892. 2217. Held that the term "war serxice" in the proviso of the act of September 30, 1890, c. 1125, relating to the computing of the period of such service with a view to the retirement of enlisted men, included service as a commissioned officer equally with service as an enlisted man. 44, 209, DevemlHt\ 1890. 2218. Am enlisted man on the retired list is subject to trial by court martial, and to dishonorable discharge b}'- sentence, if such be adjudged. * In this case the Com})troller of the Treasury later held (Vol 4, p. 175) thatan ofKoer "retired and ordered to repair to his home should promptly obey the order and should be deemed to have selected the place to which he repairs within a reasonable time as his home." RETIREMENT. 625 But the existing- law, iu entitling him to be retired if he complies with its conditions, evidently contemplates that he shall remain a pensioner on the bounty of the Government during- the remainder of his life, if not forfeiting- his claim by serious misconduct. So, lidd that retired enlisted men could not legallj^ be discharged by executive order under the 4th Article of A\^ar, which contemplates soldiers on the active list only. LV, 305, Janaary, ISSS. 2219. Ileld^ in the absence of any legislation to the contrary, that retired enlisted men, like retired officers,^ might legall}- be employed, in any department of the Government, as clerks, messengers, watch- men, &c., and receive pay for such employment, while at the same time retaining- their positions on the retired list and receiving retired pay. LVI, 144, 41 »3, May and Septemher, 1888. 2220. There is no statute of the United States or regulation of the War Department which prevents a retired enlisted man of the army from accepting an ofhce or employment under either the United States or a State. Held., therefore, that there was no law or regulation of the United States which would prevent a retired enlisted man from organizing- and drilling a militia compan3\ . Card 3638, JS^oveiiihei\ 1897. 2221. An enlistment contrary to the 50th Article of War, or other- wise fraudulent, is not void but voidable only at the option of the United States. Until thus avoided it is valid and binding- on both parties and service under it is valid service. Held., therefore, that time actually served under such enlistment should be counted in com- puting the thirty 3'ears necessary to entitle the soldier to retirement under the provisions of the act of Sept. 30, 1890 (26 Stats. 504). Cards 355, Se^temher, 189 J^; 2022, January, 1896; 7108, October, 1899. 2222. A marine, after serving nine years and six months in the marine corps, deserted therefrom in 1866, and subsequently while thus in desertion served about sixteen years in the arm3\ ireld, that if his service in the marine corps during the civil war was ''active service" within the meaning of the act of February 14, 1885 (23 Stats., 305), as amended })y the act of September 30, 1890 (26 Stats., 504), he would be eligible under said acts for retirement. Card 6693, July, 1899. 2223. The act of May 26, 1900, provides "that hereafter, in com- puting length of service for retirement, credit shall l)e given the soldier for double the time of his actual service in Porto Rico, Cuba, or in the Phillipine Islands." ILld, that a soldier absent in the United States on sick or ordinaiy furlough while his company' is stationed in Porto Rico, Cuba, or the Phillipine Islands cannot be considered as in "actual service" within the meaning of this statute, in the place where il5 0pins. At. Gen., 306. 16906—01 40 626 REVIEWING AUTHORITY. his company is .stationed, and ho is not therefore, entitled to credit for double time during- the period of such absence.^ Card 8529, June, 1900. 2224. There is no legal objection to granting- an enlisted man of the reg-ular army an indefinite furlough to allow him to accept an appoint- ment as an officer in the volunteer army, and having accepted such furlough and appointment, the period of their continuance may legally be counted as part of the thirty years service as an enlisted man, which would entitle him to retirement. Card 8696, August, 1900. 2225. Pa}" for certificate of merit (two dollars per month), like con- tinuous service pay, has always been held to be a part of the soldier's pay. Being thus a part of the pay of the rank upon which the soldier receiving it ma}' be retired, he is entitled to receive as a retired soldier seventy-five per centum thereof with his current pay. Card 1308, Ajn'U, 1895. 2226. Held that a retired soldier may be furnished subsistence in kind instead of the comnuitation allowances during the time he may be in confinement at a military post under military charges, and either subsistence in kind or full commutation while en route under guard to or from the post. Card ,3234, Jxne, 1897. REVIEWING AUTHORITY. 2227. This term is employed m military parlance" to designate the officer whose province and duty it is to take action upon the proceedings of a court martial after the same are terminated, and, when the record is transmitted to him for such action, to approve or disapprove, &c., the sentence. This officer is ordinarily the commander who has convened the court. In his al)sence, however, or where the command has been otherwise changed, his succes.sor 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 con- viction. XIII, 468, March, 1865. In cases, however, of sentences of di.smi.ssal and of death, imposed in time of peace, and of some death sentences adjudged in time of war, as also of all sentences "respecting general officers," — while the con- vening officer (or his successor) is the original reviewing authority, with the .same power to approve or disapprove as in other cases, yet, inasmuch as it is prescribed by Arts. 105, 106, 108 and 109 that the sentence shall not ])c executed without the confirmation of the President, the latter l)ecomes in these cases the j^'/zc/Z reviewing officer, when — the ' Compare 6 Comp. Dec, 947. ■■^ It oc'i-urs aluo in Sec. 1228, Rev. Sts. REVIEWING AUTHORITY. 627 sentence having been approved by the commander (for, if disapproved by him, there is nothing left to be acted upon b}^ the superior) — the record is transmitted to him for his action. A similar division of the reviewing 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 superior commanders, under Art. 107, in cases in which sentences are imposed b}" division or separate- brigade courts. Where 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. 2228. It is no longer necessary that the findings of a court martial should be expressly approved. Formerly the 104th Article of War prescribed that no sentence of a court martial should be carried into execution until the whole proceedings were approved by the reviewing authority, but now as amended by act of July 27, 1892, it simply requires that the sentence shall be approved by such officer, and this applies as well in cases requiring confirmation of the President as in those that do not. Card 284'4, January^ 1897. 2229. While apyproval gives life and operation to the sentence, dis- appi'OvaJ., on the other hand, quite nullifies the same. A disapproval of the sentence of a court martial by the legal reviewing authority is not a mere expression of disapprobation, but a final determinate act, putting an end to the proceedings in the particular case and rendering them entirel}^ nugatory and inoperative; and the legal efl'ect of a dis- approval is the same whether or not the ofiicer disapproving is authorized finall}" to confirm the sentence. But to be thus operative, a disapproval should be exp>ress. 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 proceedings to a superior without words of approval operate as a disapproval of the sentence.^ The efl'ect of the disapproval, wholly, of a sentence is not merely to annul the same as such but also to prevent the accruing- of any disa- bility, forfeiture, &c., which would have been incidental upon an approval.^ XXVI, 568, June, 1868; XXX, 497, July, 1870; XXXII, 1, December, 1870; L, 121, March, 1886; 60, 36, June, 1893; Card 2195, April, 1896. ^See 16 Opins. At. Gen. 312, where it is remarked that it is not a legal disapproval of a conviction or sentence for the original reviewing officer, in forwarding the pro- ceedings for the action of superior authority, to endorse upon the same an opinion to tlie effect that the finding is not sustained by the e%ddence. '^ A disapproval of a sentence by the proper reviewing authority is "tantamount to an acquittal by the court." 13 Opins. At. Gen. 460. 628 rp: VIE WING authority. Where the orioinal reviewing- officer disapproves a sentence, to the execution of which the coiitirination of superior authority is made requisite b}" the code — as where (in time of peace) the department commander, who has convened tlie court in the case of an officer, dis- approves a sentence of dismissal adjudged thereby — the sentence being nullified in law, there remains nothing for the superior authority to act upon and to transmit the proceedings to him for action will be improper and unauthorized. Ill, 537, AikjuM^ 1SG3; VII, 479, Aprils 1861^; XXX, 497, JaJy, 1S70; XXXII, 630, Maij, 1872. A reviewing officer cannot disapprove a sentence and then proceed to mitigate or commute the punishment, since, upon the disapproval, there is nothing loft in the case upon which any such action can be based. XXII, 456, (/ctoher, 1866. It is quite immaterial to the legal effect of a disapproval whether any 7'eas?■, ante.^ Impressing the signature b}^ means of a stamp is not favored. IV, 567, Jmvuojry, 186 Jf.; XXII, 513, December, 1866; 568, January. 1867. - 2234. 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. Nor can he, regularl}-, authorize a stafi' or other officer to subscribe for him the action, by way of approval, dis- approval, &c., which he has decided to take upon such procfedings. An approval purporting to be subscribed b}^ the commander, "'hy''- his stafi' judge-advocate or other staff officer, would be open to ques- tion 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 commander. IV, 567, January, 1861^.; VII, 19, and VIII, 639, July, 1861^; IX, 27, May, 186k; XV, 548, July, 1865; XVII, 191, August, 1865; XXVII, 297, Octoher, 1868. 2235. Action taken by a reviewing officer upon the proceedings and sentence of a court martial may be recalled and modified before it is iSee G. C. M. O. 88, A. G. 0., 1864. ■■'See the early case of Capt. Weisner, Am. Archiv., 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 credibilitv of witnesses. Wright v. State, 34 Ga. 1 10; Whitten x. State, 47 id 297. 630 REVIEWING AUTHORITY. published and the party to be affected is dul}' notified of the same. After siK'h notice the action is beyond recall. The power of remission indeed may be exercised so lon^ as any part of the punishment imposed remains unexecuted, (See § 344, ante.) But when the final approval of the sentence (or other action taken) has been once ofiSciallv commu- nicated to the accused, the function and authority of the reviewing- authority as such over and respecting the same is ea'hausted and cannot be revived. An approval cannot then be substituted for a disapproval, or vice versa. VIII, 556, June, 1861^; XXXI, 15, Octoher, 1870. 2236. It is an established principle that when the final action of the reviewing officer has been published in orders to the command and notified to the accused, his power of approval and disapproval in the case is exhausted, and his action cannot be recalled or modified. 31, 125, Jfarch, 1889; 40, 226, April, 1890; 60, 170, June, 1893. Where a department commander applied to the AVar Department for the return of the proceedings of a case in order that he might modify his action thereon, Iield that as the same had been formally promulgated in orders and had duly taken effect, the power of the reviewing ofiicer over the case was exhausted, and the application could not legally he complied with. 31, 96, 2[arch, 1889. 2237. Where a reviewing authority has approved a sentence which is in excess of the legal limit, but which can be reduced to the same by simpl}' cutting off' a part of the punishment without changing it in kind, it is within his power to thus reduce it. This should be done in an order by the reviewing authority, or his successor in command, setting- aside as void and inoperative that portion which is in excess of the legal limit. The preceding section should not be construed as pre- cluding such action. Card 7363, Novemher, 1899. 2238. Held a good ground for the disapproval of a sentence that the court denied the request of the accused to have summoned a clearly material and important witness whose testimony woidd not have been merely (-umulative.^ XLIX, 18, April, 1885. 2239. It is beyond the power of the reviewing ofiicer to change, by his own action, a finding. Thus where, in a case of conviction of deser- tion, the reviewing authority approved so much only of the finding' of guilty of desertion as convicted the accused of absence-without-leave, Jutd that h(> thus su])stituted a finding of his own for that of the court, and that his action was unauthorized. XLVII, 291, August, 1883; 49, 445, October, 1891; 62, 454, Decemher, 1893. 2240. It is within the authority of a department commander, as reviewing officer, in a case in which a soldier of his command has been >SeeG.C.M.O. 128, A. G. O. of 1876. REVIEWING AUTHORITY. 631 sentenced to confinement in a penitentiary, to designate a particular penitentiary within such command as the place of confinement/ 63, 330, January^ I89J4.. 2241. A sentence, to forfeit certain pay, was approved, and such appro v^al promulgated in orders of Feb. 18, 1865. On March 10th following, the reviewing officer "reconsidered" his action and by another order disapproved the sentence, and this order was also pro- mulgated. Iftid that the latter order was of no efl'ect. The first order executed the forfeiture, making the amount forfeited public money, and exhausted the power of the reviewing authorit3\ 40, 353i, April, 1890. 2242. But where, after the reviewing commander had approved a sentence in general orders, and the court had been dissolved., it was discovered that there was a fatal defect in the proceedings in that they did not show that the court and judge-advocate had been sworn in the case, /u'ld that the commander would properly issue a supplemental order declaring the proceedings a nullity and the original order inoper- ative and withdrawn on account of the defect.^ XLIX, 808, August, 1885; 31, 125, J/«rc//, 1889; 41, 89, 31ay, 1890; 42, 439, Septemler, 1890. (See § 2143 airte:) 2243. In acting upon the proceedings of a court martial, the legal reviewing oflicer acts partly in a judicial and partly in a ministerial capacity. He ''decides " and "• orders '' (par. 1011, A. Yv. — 955 of 1895; 1057 of 1901), and the due exercise of his proper functions cannot be revised by superior military authorit3\ Thus held that a reviewing officer who had duly acted upon a sentence and promulgated his action in orders, could not be required by a higher commander, or ])y the Secretary of War, to revoke such action. If the sentence be deemed unAvarranted or excessive, relief may be extended through the power ^ See A. R. 941 ( 1042 of 1901 ) , which makes approval of Secretary of War necessary. '■^See G. C. M. O., 23, Dept. Dakota, 1888, setting aside void sentences and restoring to duty the prisoners, both of whom were serving confinement, and had been under the terms of the void sentences dishonorably discharged. See also G. C. M. 0. 20, Dept. Cal., 1890, where a void sentence was set aside, the dishonorable discharge "can- celled " and the prisoner restored to duty. If however the court has not been dissolved it may be reconvened to amend its record to conform to the actual facts, that is to make it speak the truth. See par. 19, S. 0., 99, A. G. O., 1900, in which the following is promulgated: "By direction of the President, the sentence in the case * * * published in paragraph 1, Special Orders, No. 214, Headquarters, Separate Brigade, Provost Guard, Manila, Philippine Islands, November 8, 1899, is set aside. The record of the trial failed to show that the mem- bernof the court and judge-advocate were sworn, and on being returned [by the War Dei)artment] for necessary action the court was not reconvened, as contemplated by paragraph 2, page 56, Court-Martial Manual, 1898, but the judge-advocate interlined a statement in the record that the members of the court and the judge-advocate were duly sworn. This action was unauthorized and invalid. A defective record returned for correction can only be amended to conform to the actual facts and by the court itself on revision when duly reconvened for the purpose." 632 REVISED STATUTES. of pardon or remission; if void for want of juiisdiction or other cause, it may be set aside. XLIX. 20-i, August, IHSo; L, 553, July, 1S,%\ 2244. The publication in orders of the sentence of a court martial is not essential to give it effect. The final approval and orders of the proper rovicAving' authority are the essential thing-.s, and actual or con- structi\'(^ notice of this may 1)e given to the person affected otherwise than bv its pu])lication in orders, which is in fact simply for the sake of c()ii\eni(Mice and exam})le. Card 1220, April, 1S95. 2245. The formal disapproval by the reviewing authority of an acquittal is a naked non-concurrence in the conclusions of the court, and is without h'(jal <'Jt'<'cf upon the status of the accused. He still remains legally not guilty. Card 1-118, June, 1895. REVISED STATUTE^. 2246. The Revised Statutes 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 tuke effect, went into operation on the day of its approval ])v 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 printed volume became evidence of the laws therein contained. XXXVI, 630, August, 1875. 2247. The laws relating to the army, eml)raced in the Revised Stat- utes, became operative as to the army upon the approval by the Presi- dent of the body of the revision, irrespective and independent!}' of an^^ publication of such laws in general orders. XXXVI, 000, Siptem- her. 1875. 2248. Held that an act of 1850, authorizing the transfer of certain lands in Florida (which had been reserved for military purposes) to the Secretary of the Interior, with the consent of the Secretary' of War, and their disposition and sale as puldic lands — belonged to the class of "provisions of a local or temporary character"" indicated in the proviso to Sec. 551)0, Rev. Sts., and was therefore not repealed l)v such statutes, but, having remained unexecuted, might legally be executed at this time (1878). XLI, 215, A2)ril, 1878. ^ Since the date of this opinion, the revision of 1874 has been itself revised, under an act of Congress of March 2, LS77, and the re-revision, jniblished in 1878, and cer- tified 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 lievised Statutes of 1874, with additions and corrections. Under a joint resolution of Congress, of June 7, 1880, and an act of April 3, 1890, a sni)]>lement to the Revised Statutes was published, by Avhich the revision was brought down to March 8, 1891. By a second volume of the supplement, the revision has been brought down to March 3, 1899. REVISION. 633 REVISION. 2249. Where the record of a trial, as forwarded to the reviewing authorit}' for his action, is deemed b}' him to exhibit some error, omission, or other defect, in the proceedings capable of being supplied or remedied by the court: as, for example, an inadequate, 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 convening order, or to authenticate the proceed- ings b}' the signatures of the president and judge-advocate, or to enter the proper statement as to the members present, or to recite as to the offering 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 clerical error in a matter of form: — the court ma}' and in general properly will be recon- vened by the order of the reviewing officer (the convening authority or his successor in the command) for the purpose of correcting the record in the faultv particular, provided a correction be practicable. In a case of an oiiihsion. the object of course is that the record may be made to conform with the fact. If the fact is that the proceeding, ajyparinitlAi merely omitted to be recorded, was ortuaUij 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 proceedings. It is not often however reassembled a second time, where it declines on the first occasion to make the correction desired. I, 487. Decemler, 1862: II. 154, .I/>/'/7, 1863: XI, 490, Februai-y, 1865; XVI. 202. Jfaij. 1865: XXVIII. -im. Btceniher. 1868; 304, Jan vary. 1869. 2250. The order reassembling the court will properly indicate the particular or particulars as to which a revision or correction is desired, or refer to papers, accompan^'ing it, in which the supposed omission or other defect is set forth. XI. 93, Xoverriher. 186Jf. AVhether to make or not the proposed correction will be in the discretion of the court. The reviewing authority cannot of course compel and would scarceh' be authorized to command the court to make it. VII. 112, Xnr.nJ»,r, 1863: XXXIV. 435. St-ptemhtr. 1873. 2251. A correction can be madeonly by a legal court. At least five therefore of the members of the court who acted upon the trial, must be present. That there are fewer members at the re-assembling than at the trial is immaterial, provided five are present. XXXV, 656, October.^ 187^. The judge-advocate should be present.^ I. 487. Decem- 1m'i\ 1862. 'If the court closes he should withdraw (act of July 27. 1892, s. 2). 634 REVISION. 2252. It is not in general necessary or desirable that the accused be present at a revision. Where, however, any possi])le injustice may result from his absence, he should be required or permitted to be present, and with counsel, if preferred. Thus, where the defect to be corrected consists in an omission properh' to set forth a special plea made or objection taken l)y the accused, it ma}" be desirable that he should he 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 onh', the presence of the accused is not in general called for. IX, 653, Septemler, 1861^. 2253. It is now settled in our law that a court martial is not empow- ered, at this proceeding, to take or receive testimony.^ XVI, 562, 8epteinhtr, 1865; XIX, 41, Octo'ber, 1865; XLII, 275, April, 1879. 2254. The amendment can only be made by the court when duly reconvened for the purpose, and when made must be the act of the ccnirt as such. A correction made by the president or other member, or by the judge-advocate, independently of the court, and by means of an erasure or interlineation or otherwise, is unauthorized and a grave irregularity.' XXVIII, 304, Jan\iary, 1869. The correction must be wholl}^ made and recorded in and by the formal proceedings upon the revision. The record of the correction, as thus made, will refer of course to the j^age or part of the record of the trial in which the omis- sion or defect 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 substitution for the defective portion of a re-written corrected statement, than would be the judge-advocate or a member. II, 07, March., 1863; XI, 93, Novem- ler, 186J+; XVI, 202, May, 1865; XXXIV, 416, Aug^u. 32, 223, May, 1889. But the act of 1888 leaves these rights still subject to the right of flowage, which, under the authority of the United States, may need to be resorted to in connection with the improvement of the Mississippi River, and subject also to the condi- tion that no railroad company shall take material for construction from the water-reserve lands outside the right of wa}'. 33, 1:89, July, 1889. Where the location of a railroad has been approved by the Secretary of the Interior, and its right of way perfected, under the act of 1875, it is not required that there should be a re-approval by the Secretary" of War under the act of 1888. 31, 352, 4^»'^7, 1889; 33, 156, June, 1889. An approval ])y the Secretar}^ of War, under the act of 1888, of the location of a right of way for a certain railroad, not recommended until the compan}" file with their application a perfect profile and full and minute description of the proposed line. 29, 253, January, 1889. 2264. Questions of rights to the use of vmtei' in States and Ter- ritories, where the rainfall is not sufficient to supply the land with water for irrigation, are determined by rules not found in the common law. In England iind genendly in this country the right of one person to conduct water over the land of another is an interest in real estate which nuist be convej^ed by deed. In districts where there is sufficient rain to fertilize the land there is no reason for distinguishing this interest from other easements in the soil. In regions where the fer- tility of the soil is dependent upon irrigation, a different principle arises. B}' it the right of a person, who cannot otherwise secure a necessary supply of water, to enter the land of another for such pur- pose, is recognized.^ The use of this right is secured and regulated •See Railroad Co. v. Baldwin, 103 TJ. S. 426; 18 Opins. At. Gen. 357. ^Yunkeir. Nichols, 1 Col., 551. But, it seems, that in the absenee of statute the person would have no right to construct a ditch on the lands of another without the owner's consent. Gould on Waters, 3d edition, § 233. KIGHT OF WAY. 637 by statute in the western States, and is further recognized by Con- gress in the act of March 3, 1891, c. 561, s. 18-20, which extends to individuals and associations the right to enter the puhlic lands and res- ervations of the United States, and have a right of way upon the same for the construction of irrigating ditches/ So held that where an indi- vidual had constructed such a ditch over the soil of a militar}- reserva- tion in Wyoming, after filing the map of the line of the same required by s. 20, of the act, his use of the water could not be controlled or interrupted by the military authorities so long as he did not, ])y the location of his right of way "interfere with the proper occupation" of the reservation b}^ the Government (sec. 18 of the act). XLIX, 97, J/ay, 188S; 55, 268, September, 1892. 2265. By sections 18 and 20 of the act of March 8, 1891 (26 Stats. 1110-2), the right of way is granted across the public lands and reser- vations of the United States for the construction of irrigating ditches, subject to the approval of the location of right of way across a reser- vation by the departuient of the Government having jurisdiction of such reservation. Where the Secretary of War, under this statute, approved the location of a right of way across a military reservation, but subject to certain conditions for the benefit of a third party, Jield that the Secretary of War was without authority to compel the grantee of the right of way to comply with the conditions, or to deprive him or his assigns of such right of way on account of his or their fail- ure to comply with the conditions. Card 1063, May., 1896. 2266. The vesting of a right of way in the United States does not merely authorize the Government to send its agents and employees on the land for purposes of construction, &c., but endows it with such right and control as to enable it to keep the way open and ensure its continued use for the purposes designed. But where it was proposed to cede to the United States a right of way from a city, by one of its laid-out streets, to an adjacent national cemetery, held ih^ttho, nuinici- pality, in the absence of specific authority conferred by the legislature, was not empowered to convey such a right, but that the legislature alone could do so, just as the legislature alone could vacate or discon- tinue a street.^ 30, 45, January., 1889. 2267. So, held that an appropriation made by Congress for construct- ing a road from a cit}', through one of its streets, to a national ceme- ter}', could not legall}" Ije expended upon a right of way granted by a city ordnance, the legislature not having delegated such jurisdiction over its streets to the municipality, which could not therefore transfer ' As to the operation of the act of July 26, 1866, and other prior enactments relat- ing to this subject, see J>ro(ler r. Water Company, 101 U. 8. 274; Sturr r. Beck, 133 id. 541. See, also, (iould on Waters, 3d edition, § 240, and authorities cited. '■'Dillon on Municipal Corporations, 647, 652, 665; Kreigh v. Chicago, 86 Ills. 407. 638 RIVER COMMISSIONS. to a third party a permanent property therein. 54, 423, July^ 1892. Held that where such a nmnicipality had not been empowered to con- vey a right of way outside its corporate limits, the conveyance should be made directly to the United States from the individual owners of the land, and that for the latter to convej', mediately, to the city would be an unnecessary proceedino-. 29, (SS^ 69, Decoiiher, 1888. 2268. Without express author it}- from Congress, the Secretary of AV;ir cannot grant to railwa}" companies rights of way over the lands of the United States under his control, but he has frequently by revo- cable license granted permission to lay and maintain railway tracks upon such government lands. Cards 241, August, 189It.; 6539, June., 1899. RIVER COMMISSIONS. 2269. Held that the maps prepared l>y the Mississippi commission, under appropriations by Congress, may legally be disposed of at the discretion of the commission; it being evidently intended by Con- gress that the information therein contained should be made public and circulated for the public use and benefit. 33, 326, July., 1889. 2270. Held th'dt the Mississippi River Commission derived no author- ity from the statutes relating to its functions to make allotments of the moneys appropriated by Congress for the improvements proposed. Its province is to indicate to Congress what improvements are needed and how much should be appropriated therefor. It has no authority to disburse mone}^ appropriated. An allotment made by it is to be treated by the Secretary- of War as a recommendation only. The Sec- retary may adopt the recommendation, but in the disbursement should not omit any of the works specially designated ])V Congress in the appropriation act. 43, 187, October, 1890. 2271. Held that the allowances for the traveling expenses of the civilian members of the Mississippi and Missouri river commissions were not regulated by any order of the War Department regulating the allowances of civil emplo^-ees of the military establishment, but were such as are fixed by statute. They are not thus necessarily four dollars per diem, since the statute law provides for the reimbursement of their actual necessary outlay, which may be more or less than this allowance. 44, 477, January, 1891. 2272. The duties, under the law, of the Missouri River Commission, composed partly of civilians, relate exclusively to certain work quite other than the establishing of harbor lines. It is therefore not, as a body, subject to the directions of the Secretary of War in the matter of esta))lishing harbor lines, nor are the civilian members sul)ject indi- vidually to his orders. Thus, while they may consent to establish such lines, it is preferal)le for the Secretary to cause such work to be done through engineer officers of the army. 56, 218, October, 1892. SALE OF ARMS, &C. , BY SOLDIERS. 639 s. SALE, &c., OF ARMS, &c., BY SOLDIERS. 2273. Held that the provisions of s. 23, c. 75, act of March 3, 1863, prohibiting the sale, &c., of their arms, &e., by soldiers, and declaring that no right of property or possession should be acquired thereby, &c., were not limited in their operation to the period of the civil war, but were still in force, ^ and that an officer of the arm}- would there- fore be authorized to seize arms, &c., disposed of contrary to such pro- hibition, whenever and wherever found. XXII, 525, Decembei\ 1866. But inasmuch as there have been sundr}" authorized sales of arms and other ordnance stores since the end of that war, advised that officers, before making seizures, should assure themselves that the parties in possession have not acquired title in a legal manner. XXIX, 187, 204, August, 1869. 2274. A person who illegally purchases army clothing from a soldier cannot now^ be proceeded against for merelv purchasing or receiving, under the existing law (Sees. 1242 and 3748, Rev. Sts.); but if, in so purchasing, he aids a soldier to desert, he is subject to trial and pun- ishment under Sec. 5455, Rev. Sts. 60, 371, July, 1893. 2275. Sec. 3748, Rev. Sts., provides that clothing furnished by the United States to a soldier shall not be bartered, exchanged, pledged, loaned or given away, and that no person not a soldier or officer of the United States who has possession of anj^ such clothing so furnished and which has lieen the subject of such sale, barter, etc. , shall have any right, title or interest therein, but that the same may be seized and taken wherever found b}" any officer of the United States, civil or military, and shall thereupon be delivered to any quartermaster or other officer authorized to receive the same, that the possession by a civilian of clothing, etc., furnished to a soldier shall be presumptive evidence of the sale, barter, exchange, etc. The language of this statute indicates that a summary seizure is intended to be authorized and the fact that the military officer is authorized to seize the property shows that no writ or other process of the courts is required. But while the power to summarily make the seizure exists, the officer authorized to take possession of the property may also assert his rights through the courts, and this latter course may be in many cases the preferable and better one. Card 5303, November, 1898. ^ See these provisions as now incorporated in the Revised Statutes, in Sees. 1242 and 3748. The fm-ther provision of the original Act making punishable with fine and imprisonment persons purchasing from soldiers their arms, equipments, clothing, &c., has not been retained in the Revised Statutes. 640 salp: of condemned stores. 2276. A soldier's title to clothing- issued him is a qualitied one, requir- ing that he use it in the service while it is serviceable and he is yet a soldier. But on his discharge his title to such clothing becomes abso- lute and he ma}' then sell, etc., the same to a civilian and give a valid title to it. Ileld^ therefore, that Sec. 3748, Rev. Sts., did not apply in the case of such sale, barter, etc., by a discharged soldier. Card 5303, Nommhtv, 189S. SALE OF CONDEMNED STORES. 2277. 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. 12-41, Rev. Sts.), held that such stores might legally be sold on credit^ if such mode of disposition was deemed for the public interest. XXIX, 330, October^ 1869. 2278. Held that an officer of the army, duly charged with the duty of making a sale of damaged, &c., medical supplies under the authority of Sec. 1241, Rev. Sts. (by which the President is empow- ered 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 require- ment 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, 6, May, 1876. 2279. The word " unsuitable," as used in Sec. 1241, Rev. Sts., evidently refers to some unfitness for use other than that caused by being "damaged.'"' Uniform clothing, for instance, of sizes that could not be used would be unsuitable. But held that the meaning of the word could not properly be restricted to things of a quality inferior to that which is required for the service. A thing may be unsuitable by reason of its being of such superior quality as not to be adaptable for the purpose for which it was intended. And held that military stores can not properly be deemed unsuUahle under this stat- ute for the sole reason that they are hi excess of the quantity required for use.' 64, 218, March, 189 J^.; Card 7796, March, 1900. 2280. Certain government property (a quantity of cord wood and a hay scale) was left on hand at a military post which had been aban- doned. The property was no longer needed there and the expense of transporting it elsewhere would largely exceed its cost. Held, there- ' See Comptroller's opinion contra of December 4, 1900 (7 Comp. Dec, 260), which, however, cannot be regarded as having the weight of authority, inasnmch as the Comptroller, in rendering the opinion, was not acting within tlie jurisdiction con- ferred ui)on him by the act of July 81, 1894. SALE OF CONDEMNED STORES. 641 foi'O, that it was "unsuitable for the public service" within the mean- ing of Sec. 1241 Rev. Sts. Card 87^5, August^ 1900. 2281. Held that under Sec. 1241, Rev. Sts., unserviceable tools and materials, which had been in use at a national cemetery, could not legally be ordered to be sold upon the mere inspection and report of their unserviceableness made by the superintendent of the cemetery, but that, as required in the section, there must be first an inspection "by an officer (/. t., commissioned officer) designated by the Secretary of War." LIV, 609, Fehruary, 1888. 2282. Old material, condemned stores, &c., in the departments can not legally be disposed of in exchange for new, or in part payment for new, articles, but, under Sec. 3618, Rev. Sts., must be sold, and the proceeds "covered into the Treasury as miscellaneous receipts.'' So Jitld in regard to an inserviceable steam lithographic press in the Signal Office, which had been duly inspected and condemned.^ LII, 316, Jujh; 1887; 37, 204, Becemher, 1889. 2283. Books for a post library purchased out of post exchange funds or donated to the library are not "public property" within the mean- ing of Sec. 3618, Rev. Sts. Proceeds from a sale of them may therefore legally be expended in the purchase of new books. Card 2649, September, 1896. 2284. Ifeld that a non-commissioned officer, who acted as auctioneer at a public sale of condemned quartermaster stores, could not legally be paid, out of the proceeds of the sale, a commission of ten per cent, or an}' other commission or compensation, for his services as auc- tioneer. The pay and allowances of all enlisted men are fixed by law, and, in the absence of any authority in the statute providing for such sales or other statutory provision, such a compensation must neces- saril}' be without legal sanction. 60, 363, July, 1893; 62, 95, October, 1893. (See § 1336, ante.) But Jield th.2ii a civilian employee hired by the Quartermaster's Department, under the provision for "hire of teamsters and other employees " in the appropriation 'for "transporta- tion of the army and its supplies," whose pay is not fixed by "law or regulations," may legally be paid for services as an auctioneer at a public sale of condemned quartermaster propert}". Cards 2567, Sep- tember. 1896; 6988, September, 1899. 2285. Si^ction 1241, Revised Statutes, provides: " The President may cause to t)e sold any military stores which, upon proper inspection or survey, appear to be damaged or unsuitable for public service. Such inspection or surveys shall be made by officers designated by the Secretary of War, and the sales shall be made under regidations pre- ^ Compare a similar case in 15 Opins. At. Gen. 322. 16906—01 41 042 SALE OF INTOXICANTS. scribed by him." Held, that before a sale can be made under this statute, the property must be in.spected and pronounced unsuital)le for public service, and the regulations (A. R. 679 of 1895) require the sale to be at public auction. Cards 905, Fehrnary, 1896; 2127, Marcli^ 1896; 818-4, May, 1900; 8668, 8675, July, 1900; 8716, August, 1900. 2286. Par. 679, A. R. of 1895 (761 of 1901), relates only to public property in the custody' of th^ military establishment and not to property held ])y the War Department proper, which is a civil estab- lishment. So lii'hl, that the regulation did not apply to public property for which the Chief of the Supply Division of the War Department is responsible. Card 3774, January, 1898. SALE OF INTOXICANTS. 2287. The act of June 13, 1890, c. 423, provides ''that no alcoholic liquors, beer or wine, shall be sold or supplied to the enlisted men in any canteen, or post trader's store, or in any room or building at any garrison or militar}- post, in any State or Territory in which the sale of alcoholic liquors, beer, or wine, is prohibited by law." This act applies to all posts, whether or not on military or Indian reservations. It is also applicable to counties in which under a legal "local option law" the sale of intoxicants is prohi))ited. Card 4785, Augvst., 1898. It is operative in North Dakota, a State in which the sale of such liq- uors is "prohibited by law." Under the act of July 23, 1892, c. 234, amending Sec. 2139, Rev. Sts., the Secretary of War ma}^ give author- ity in writing for the introduction of intoxicating liquors into the Indian countr}- . But this authority is subject to the restriction of the existing act of June 13, 1890, so that the Secretary could not properly permit the introduction of such liquors into Indian country within a prohibition State with a view to their being sold or supplied to enlisted men. Where certain "Hop Tea Tonic," alleged to be intoxicating, was attempted to be introduced at the post of Fort Yates, situated upon an Indian reservation in North Dakota, exclusive jurisdiction over which is vested in the United States, held that the admission or sale of such liquor, if intoxicating, would be an offence against the United States, not against the State, since the act of August 8, 1890, providing that intoxicating liquor shipped into a State shall be subject to the operation of the Stati; laws as soon as it enters the territory of the State, can not apply to a district over which the United States has exclusive jurisdiction, and therefore that the State authorities would not be empowered to make a seizure of such liquor. 62, 405, Novemher, 1893. 2288. The act of June 13, 1890, forbids tiie sale of intoxicants to SALVAGE. 643 "•enlisted men'' at military posts in prohibition States or Territories; but IteJd tliat there was no existing law prohibiting the sale of liquors (onee legally introduced — see § 1501, ante) to officers of the army or to civilians at such posts b}' post traders or otherwise. 65, 260, June^ ISOJf.. 2289. It having been reported that the unrestricted sale by civilians of opium was causing injury to the military service at Fort Sherman, Idaho — advised that such sale might be restrained by Congress under its general power of legislation over the Territories;^ or that, in the absence of action by Congress, the legislature of the Territory would be authorized to regulate the same; and that through one of these two means the evil might probabl}" be abated. 30, 72, February^ 1889. 2290. Section IT of the act for increasing the efficiency of the army of the United States, etc., approved March 3, 1899, provides •■'that no officer or soldier shall be detailed to sell intoxicating drinks, as a bartender or otherwise, in any post exchange or can- teen * * * '\ Held^ that beer is an intoxicating drink within the meaning of this section. Card 5992, March., 1899. SALVAGE. 2291. 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 ordinarily held lia])]e to the same rate of salvage as those of individuals, and may be arrested and proceeded against in like manner." But to this rule exceptions have been established. 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 injur}" and inconvenience which might result to the public interests therefrom.''* This reasoning would appear to be equally applicable to a case of supplies e7i route to armies in the field in time of war. So held where certain subsistence and quartermaster stores, in transit to our armies and needed for their use, were detained hy the United States marshal at Cairo, Illinois, at the suit of the salvors of a steamer sunk with her cargo (including these supplies) in the Mississippi River. XXI, 211, Fehruary., 1866. 2292. A citizen of a State within the theatre of the civil war, in order to prevent the capture b}^ the enemy of a steamer belonging to him, caused it to be run up a small stream and concealed. It was, 1 See Natl. Bk. r. Co. of Yankton, 101 U. S. 133. 2 United States v. Wilder, 3 Suiiiner, 308; The Merrimac, 1 Benedict, 201; The Davis, 10 Wallace, 15. ^The Schooner Merchant, 4 A. R. 609; Marvin, Law of Wreck and Salvage, § 122. * Marvin, id. , Kupm; 2 Parsons' Maritime Law, 625. O-i-l SECRETARY OF WAR. however, discovered by a partisan force, bv which it was dismantled and parti}' sunk but not held — the owner continuing to assert, through an agent who remained with it, his right of property therein. Subsequently it was taken possession of, raised, relitted 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 a claim for salvage^ such as that allowed for property recaptured^ or recovered from pirates;" but that the sums expended by the Government in raising and refitting it might properly be offset against the amount claimed for it use. XX, 473, 485, March, 1866. 2293. The capture from an enem}^ 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 prosecution of the war, was removed from New 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 thereupon 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, 565, April, 1866. SECRETARY OF WAR. 2294. 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 administrative duties, are in law the acts and directions of the President, in whom is reposed by the Con- stitution the entire executive power of the Government, and whom the heads of departments (except where specially invested by Congress with distinctive authority of their own'') simply act for and represent.* 'See the Amelia, 4 Dallas, 34; Bas r. Tingv, id. 37; Talbot r. Seeman, 1 Cranch, 1; The Adeline, 9 id. 244; Marshall r. Delaware Ins. Co. 2 Wash. c. c, 54 (Fed. cas., 9,127). -Davison r. Seal-skins, 2 Paine, 324; Lea v. The Alexander, id. 466. ^That a Secretarj' may have special powers devolved upon him, independently of the President, bv an act of Congress, see United States v. Kendall, 5 Cranch, C.'C, 163 (Fed. Cas., 15,517). M.ockington v. Smith, Peters C. C, 472; United States v. Benner, 1 Baldwin, 238; Wilcox r. .Jackson, 13 Peters, 498, 513; United States r. Eliason, 16 id., 302; The Con- fiscation Cases, 20 Wallace, 109; U. S. v. Furdcn, 99 V . S., 10, 19; Wolsey v. Chapman, 101 Id., 755, 769; Kimkle r. U. S., 122 id., 543, 557; United States r. Webster, Daveis, 38, 59 (Fed. Cas., 16,658); United States /'. Freeman, 1 Wood. & Minot, 45; Lock- ington's Case, Brightlv, 288; United States r. Cutter, 2 Curtis, 617; Hickev r. Hnse, 56 .Maine, 495; McCalf's Case, 5 Philad., 289; In matter of Spangler, 11 Mich., 322; I ()i)ins. At. Gen., 380; 6 id., 326, 587, 682; 7 id., 453, 725; 9 /(/., 463, 465; 10 id., 527; II id., 398; 13 /(/., 5; 14 id., 453. SECRETARY OF WAR. 645 Thus all orders made and issued hy the vSecretarv of War in connection with the g-overnment and regulation of the military estahlishment — such as orders convening- general courts martial, or approving and directing- the execution of the sentences or otherwise acting upon the proceedings of such courts/ or mitigating or wholly or partially remit- ting punishments imposed thereby, or orders summarily dismissing ofRcers, or dropping for desertion, retiring or accepting the resignation of. officers; or orders establishing militar}^ reservations, or pronnilga- ting army regulations, &c., — are to be regarded as the orders and acts of the President, whom the Secretary of War represents in the adminis- tration of his department; the same being presumed 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 operative as if signed by the hand of the President himself." V, 319, jVove?/iher, 1863; IX, 44, May, ISGIf,; XXIII, 654, August, 1867; XXXVII, 650, June, 1876; XXXVIII, 107, 243, June 2indi August, 1876; XXXIX, 296, Novemher, 1877; XLI, 25, September, 1877; 611, July, 1879; XLII, 209, March, 1879; XLIII, 106, December, 1879. 2295. It is an established rule of our administrative law that a deci- sion upon a claim once arrived at, upon whatever grounds, bv the head of a department of the Government, is a finality so far that, in the absence of new evidence, error of calculation, or fraud, it cannot (without the authority of Congress) be re-opened by a successor.^ LI, 136, November, 1886; 53, 443, May, 1892; Card 687, December, ^ But see § 337, ante, and note. • ■•'See Wik'ox v. Jackson, 13 Peters, 498; U. S. v. Eliason, 16 »?., 302; U. S. r. Farden, 99 U. S., 10, 19; Wolsey ;•. Chapman, 101 Id., 755, 769; Hickev v. Huse, 56 Maine, 495; 2 Opins. At. Gen., 67; 13 id., 5; 14 id., 453; 15 Id., 290, 463; G. O. 35, W. D., 1850. =•17. S. r. Bk. of Metropolis, 15 Peters, 378; Rollins and Presbrev v. U. S., 23 Ct. Cls. 106, and cases cited; Waddell's Case, 25 id. 323; 9 Opins. Attv. Genl., 32; 12 id. .355; 14 id. 275; 15 id. 192; 16 id. 452; 1 Comp. Dec. 193; 2 /(/.' 264, 401; 4 id. 303; 6 /(/. 236, 245. In Rollins and Presbrey r. U. S., supra, it was held, quoting from syllabus, that "any public officer in an executive department may correct his own errors and open, reconsider, or reverse any case decided by himself." In deliv- ering the opinion of the court, Chief .Justice Richardson said: "It has long been held in the executive departments that when a claim or controversy between the United States and individuals therein pending has once been fully considered, and final action and determination had thereon by any executive officer having jurisdic- tion of the same, it can not be re-opened, set aside, and a different result ordered by any successor of such officer, except for fraud, manifest error on the face of the pro- ceedings, such as a mathematical miscalculation or ncAvly discovered evidence, pre- sented within a reasonable time and under such circumstances as would be sufficient canst.' for granting a new trial in a court of law. This ruling and practice of the departments has ]>een approved elsewhere and has been sustained bv the courts. (9 Upin. Att'y. Gen., 34; 12 id., 172, 358; 14 id., 387, 456; 14 id., 275; 15 Pet., 401; Laralrffe's C«.se, 1 C. Cls. R., 147; Jackson's Case, 19 id., 504; Staff of Illinois Co.se, 20 id., 342; McKee's Case, 12 id., 560; Day's Case 21 id., 264, and the opinion of the 646 SECRETARY OF WAR. ISOJf.. Held that ' ' new evidence," to be available to change a determina- tion upon a claim arrived at b}^ a previous Secretary of War, must be evidence as to its merits. A mere re-argument, upon a subsequent application, with citation of authorities or precedents, is not such " new evidence," or evidence at all, and cannot avail to reverse the original decision. 58, 110, Fehruary^ 1893. Where an order, fixing the status of an officer on the retired list, was issued by the Secretary of War in the execution of a statute which it was his duty to execute, Jield that such order was res judicata., and could not be re-opened or set aside by a succeeding Secretary, in the absence of fraud or manifest error on the face of the proceedings. 41, 358, June^ 1890. 2296. Held that the Secretary of War was not empowered, without the authority of legislation, to re-open the action taken by one of his predecessors upon the proceedings of a court of inquiry in the case of a former officer of the army who had now been twenty years a civilian. 42, 438. Septemher, 1890. 2297. The Secretary of War is not authorized, without the authority of Congress, to turn over property of his department, in his charge, to another department for its permanent use and disposition. 51, 414, Jamiary., 1892. See, also, Card 1023, August, 1895. But such trans- fer ma}^ be made with proper debit and credit of appropriations.^ Cards 3679, January, 1898; 7840, 3farch, 1900. 2298. It is an established general rule that a head of a department of the Government will not make public or furnish copies of confiden- tial official reports or papers, the disclosure of which will rather prejudice than promote the public interests. In a case of an officer of the army, who, having been dismissed the service by sentence of court martial, applied to be furnished with copies of, or to be allowed to examine, the report of the Judge-Advocate General and the remarks of the General Commanding the Army, in his case, — advised that the application be not acceded to b}" the Secretary of War, the same being no part of the record of trial of the officer but confidential conmiunica- Jndiciary Committee of the Senate, reported l)y Senator and .Judge David Davis, (incited in Jaekson'y Case above referred to. ) tint it has never l)een doubted tliat any iiublit- othcer in the departments may correct liis own errors, and open, recon- sider, and reverse in whole or in part any case decided by himself." As to reopening final settlements, which have been followed Ijy receipt and acceptance by the claim- ant of the amount awarded, see § 76o, ante, and note. The act of July 31, 1894 (28 Stats., 208), provides that "any person acce]>ting pay- ment under a settlement by an auditor shall be thereby precluded from obtaining a revision of such settlement as to any items ujxin which payment is accepted." In view of this statute the accounting ollicers have no jurisdicticm to reopen a settle- ment, upon newly discovered evidence, as to any item upon which payment of the amount allowed bv an auditor has been accepted. 7 Comp. Dec. (decision dated March 15, 1901.) 1 See Pars. 616 and 671, A. R. (698 and 753 of 1901 ), and 3 Comp. Dec. 602. SECEETARY OF WAR, 647 tions addressed to the President through the Secretary of War. 42, 452, Septemhet\ 1890. 2299. Where, by an act of Congress, the President was ''authorized to dispose of" certain reserved lands of the United States, but was not in terms required to execute the transfer, held that the execution of the deeds was a ministerial act and that the same might legall}' be executed by the Secretary of War. 48, 420, August., 1891. 2300. Held that, in the absence of any statutory authority or appro- priation for the purpose, the Secretar}^ of War would not be empow- ered to issue to the sufferers from wind and hail storms in Lafayette Co., Arkansas, any part of the regular supplies purchased for the sup- port of the army under the annual appropriation act, or to allot for the purpose any part of the public funds appropriated thereby.^ 60, 473, July, 1893. 2301. Sec. 3 of the River and Harbor Act of August 11, 1888, made it the duty of the Secretary of War to apply the money appropriated by the act "" in carrying on the various works by contract or other- wise as may be most economical and advantageous to the Government." Held that he was thus empowered to authorize the engineer officer in charge of the work for the protection of the levees at New Orleans, to hire, without formal contract, a steaml^oat for transporting material, and for other uses in connection with such work. 40, 95, March, 1890. 2302. Held that, under the general appropriation in the Army Appropriation Act ""for the hire of buildings," the Secretary of War was empowered to rent stables for the use of the army; the existing law precluding the renting of stables for the ckiil establishment not affecting his authority in the matter, and the accounting officers of the Treasury- not being warranted in excepting to the wisdom or expedi- ' Specific authority for similar purposes has been given by Congress in recent cases — as by act of March 31, 1890, authorizing the Secretary of War to purchase tents for the use of persons driven from their homes by floods in Arkansas, Missis- sippi and Louisiana, and appropriating money therefor; and by joint resohition of April 25, 1890, making an appropriation to be expended ])y the Secretary of War in the pui'chase and distribution of subsistence stores for persons suffering from floods of the Mississippi River. And see the joint resolution of Dec. 25, 1893, authorizing certain pecuniary relief to be rendered, in the discretion of the Secretary of War, to the Government employees injured by the Ford's Theatre disaster. But such assistance has in several instances been given without first obtaining authority from Congi-ess, for example, to the sufferers by storm in Georgia and Florida in 1898; to the Seminole Negro Indians at Fort Clark, Texas, and others in that locality, in June 1899, and in August of that year to the sufferers by tornado in I'orto Rico; also to sufferers from the Galveston storm in 1900. And see paragraphs 1440, 1444 and 1446, A. R. (1633, 1638 and 1640 of 1901). With reference to the Georgia and Florida case, supra, see opinion of Acting Attorney General Richards of Oct. 15, 1898, in which it was held that the relief could l)e extended under the general executive power, there being no statutory prohibition against such an exercise of it. C48 SECRETARY OF WAR. ency of his orders or acts in the exercise of such authority.' 31, 282, April ^ 1889. 2303. Where the title to a small portion of the land acquired for a military reservation and post was disputed by a private individual, lielil that the Secretary of War had no jurisdiction to pass upon and decide such a question. He could not surrender such portion, e^'en if he believed the claim to be sound, any more than he could surrender the entire reservation, to a claimant who could show evidence of an outstanding- title in himself. It is not for the executive officers of the Government to determine whether the United States has a good title, or any title at all, to lands placed under their charge as property of the United States. Such questions are for the courts to decide. 62, 442, and 63, 90, Decemher, 1893. 2304. The act of Congress of Aug. 10, 1890, vested in the Secretary of War a simple authority to purchase land for the purposes of the Chickamauga and Chattanooga National Park, without direction or indication as to the terms of such purchase. Deeds were oti'ered by its owners containing two conditions — 1, a condition subsequent to the effect that unless certain improvements should be made the grant should become null and void; 2, a proviso that in case the United States should at any future time condemn other land of the grantor, he should then be paid for the same an amount to be measured by the value, determined by appraisement, of the lands conveyed b}' the present deed — an arrangement which would be equivalent to giving him a claim on the United States for an unliquidated amount. Held that such conditional conveyances could not legally be accepted by the Secretary of War, no authoritv being given him by the statute to bind the Government by conditions or stipulations in regard to the title or purchase. 56, 263, Noveinher, 1892. 2305. Held that an officer who had been improperly paid mileage for travel over a land-grant railroad, in contravention of par. 2417 of ' It was held by the Court of Claims in Billings v. U. S., 23 Ct. Cls., 166, that Sec. 191, Revised Statutes, which declares that the balances stated by the accounting officers "hJuiU be conchm re upon the Executive branch of the Governments^ did not con- clude the Secretary of War in the exercise of his legal discretion as to orders issued to his sul)ordinates; that under that section the decision of the accounting officers was conclusive asto the "l)alances" stated by the accounting officers and tbeir "decision thereon" for the purpose of determining for what amounts, if any, warrants may be drawn on the Treasury; but that when the accounting officers report an officer indebted to the United States, it is a matter wholly within tiie discretion of the Sec- retary of War, under Sec. 1766, Revised Statutes, and the Army Regulations "whether to order a stoppage of i)av or not." See, also, McKee c. U. S., 12 Ct. Cls., 504; Longwill r. U. S., 17 id., 291 •, Hartson v. U. S. 21 id., 453; 5 Opins. At. Gen. 386. The accounting ofhcers of the Treasury have not the burden cast ujxin them of revis- ing the action, correcting the supposed mistakes or annulling the orders of the heads of departments. U. S. /•. .Tones, IS Ibjward, 96; U. S. v. Hahn, 107 U. S. 402; Brown V. U. S., 113 id. 568. See § 198, ante. SENTENCE AND PUNISHMENT. 649 the Army Reg-ulations of 1881 — in force at the time, — on his having his pay stopped, could not (as ruled by the Court of Claims in the case of Billings r. V. S,, 23 Ct. Cls. 166) have the question of the legality of the stoppage referred to that court by the Secretary of \Var under Sec. 1063, Rev. Sts. The Secretary might indeed refer such question to the court for his own guidance and action under the act of March 3, 1883, c. 116, s. 2 (the so-called Bowman Act), but the decision of the Secretary thereupon would not bind the accounting officers who would still be authorized to proceed as provided in Sees. 269 (par. 4) and 1766, Rev. Sts. 42. 200, July, 1890. Where a claim is barred by reason of not having been presented either to the proper department or to the Court of Claims within the six years prescribed by law, the head of that department cannot revive the claim by refer- ring it to the Court of Claims.' 42, 69, July, 1890. 2306. Under Sec. 1076, Rev. Sts., the Secretary of War (or other head of a department) may refuse or omit to comply with a call of the Court of Claims for information or papers when he considers that it would be prejudicial to the public interests to furnish them: the statute makes him the sole judge on the subject. So advised here that a certain affidavit, thus called for, be, on account of the peculiar nature of its contents (as well as its apparent immaterialit}^) withheld. 26, 497, September, 1888. 2307. The Secretarj^ of War is authorized to acquire, by purchase or condemnation, land, right of way, or material, needed to maintain, operate or prosecute works for the improvement of rivers and harbors, when provision for the same has been made by law. Card 301, Sep- temher, 189 Jf. But he cannot lease land unless appropriation has been made to pay the rental thereof. Card 195, August, 189If. He may permit the use of land under his control b}^ revocable license, or by lease under the act of July 28, 1892. Card 241, August, 189Jf. SENTENCE AND PUNISHMENT— IN GENERAL.' 2308. The best approved practice of militar}- courts in determining upon their sentences is believed to be as follows: For each member to write a sentence and deposit it with the judge-advocate; and (no sen- tence having been adopted b}^ a majority of votes) for the court, after all the sentences have been read to it by the judge-advocate, to pro- ceed to vote upon them in the order of their severitj', beginning with 1 Dunbar c. U. S., 22 Ct. Cls. 109; Finn v. U. S., 123 U. S. 227. ^A.s to particular punishments, see especially Ninety Sixth Article — Discharge — Dismissal by sentence — Disqualikication — Fine — Forfeiture by sentence — Im- PRLSONMENT — LoSS OF RaNK OR FiLES — REDUCTION TO THE RANKS — REPRIMAND — Solitary confinement — Suspension. 650 SENTENCE AND PUNISHMENT. the least severe, until some one of those proposed is ag-reed upon by a majority of votes/ It is not cmential^ indeed, that this form of vot- ing should be pursued — it being open to the court, in its discretion, to adopt a diii'erent one. XXI, 551, Jidy^ 1866. 2309. That, upon a conviction by a majority vote of the court, all the members of the court, those who voted for an acquittal equally with those who voted for conviction, must vote for some sentence — though formerly doubted— has long been established as a principle in our militar}' law. While a member who voted for an acquittal can- not 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. 02. XXX, 145,'J/«rcA, 1870. 2310. 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, 3Y, 38, 50, 57, 59, 61, 65), and the sentence imposes, in con- nection w^ith the mandatory punishment, a further penalty or penal- ties, 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 opera- tive, though as to the rest it is a nullity. IV, 283, Octohei\ 1863; VIII, 296, A2)ril, 186Jf. 2311. A punishment, adjudged upon conviction of the accused 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 accused has been duij'^ convicted.^ XXV, 104, Septeiiiber^ 1867. 2312. A sentence, to T)e valid, must of course rest upon an approved finding of guilty of an offence for which the accused has lieen tried. Thus a duly approved finding of guilty on one of several charges, a conviction upon which requires or authorizes the sentence adjudged, will give validit}' and effect to such sentence although the similar find- ings on all the other charges are disapproved as not warranted by the testimony. Where such a sentence, though legally supported by the finding upon the single charge, is deemed too severe a punishment for the one offence, it may of course be mitigated by the proper authority. XI, 67, and XII, 30, ^October, 1861^; XVI, 70, April, 1865. But a find- ing 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 con- 1 The practice here referred to is now, of course, modified to conform to the recjuire- ments of the act of .Tnly 27, 1892, excluding the judge-advocate from closed sessions. See §§ 1547 and 154cS, anie. ^Thu8 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 forfeiture of pay, this punishment, being authorized upon conviction of the third charge, though unauthorized upon conviction of either of the others, will he su]>ported by the conviction on the third charge. See also Carter v. McLaughry, 105 Fed. Hep., 614. SENTENCE AND PUNISHMENT. 651 viction of some lesser offence included in that charge. VII, 600, Aprils 186 1^; IX, 19, May. 186 J^. (See § 1359, ante.) 2313. In a case where its sentence is discretionary, a court martial \m\\ impose an}" punishment that is sanctioned by usage (the ''custom of the service" referred to in Art. 81), although (in cases of soldiers) the same may not be included in the list of the more usual punish- ments contained in the Army Regulations. IV, 131, 217, Sejjtember and Ocfoher, 1863: XXII, 555, January, 1867; XXIV, 192, 179, Jan- uary and April, 1867. Where for an offence not peculiarly aggra- vated, a court martial imposed upon a soldier, in connection with a forfeiture of pay for six months, the further penalty of carrying a loaded knapsack weighing twenty-four pounds, every alternate hour from sunrise to sunset of each day (Sundays excepted) during that period, Jtdd that this punishment was excessive and exceptional, and — the same having been suffered by the soldier for three months — recom- mended thsit its unexpired term be at once remitted.^ XXVI, 520, ApriL 1868. 2314. The punishment of ball and chain, though sanctioned bj^ the usage of the service, should, in the opinion of the Judge-Advocate General, be imposed only in extreme cases. Its remission has in gen- eral been recommended by him except in cases of old offenders or aggravated crimes, where deemed serviceable as a means of obviating violence or preventing escape. XXVI, 508, 631, 662, 661, April and July, 1868; XXVIII, 16, 93, Jdy and August, 1868; 501, 532, A2)ril, 1869. This penalty has (as have also those of shaving the head and drumming out of the service) become rare in our army, and the fur- ther corporal punishment of branding or marking has been expressly prohibited by statute.^ Card 3773, June, 1898. 2315. Military duty is honorable, and to impose it in any form as a punishment must tend to degrade it, to the prejudice of the best inter- ests of the service. Thus advised that sentences imposing "guard duty" for certain periods should properly be disapproved, IV, 102, DeeenJjei', 1865; XXVI, 507, Aprd, 1868. So advised of a sentence imposing, in connection with a term of confinement in charge of the 'Article VIII of the Amendments to the Constitution prohibits the infliction of "cruel and unusual punishments." While this provision does not necessarily govern courts martial inasmuch as they are not a part of the judiciary of the United States (see § 992, (tutc), it should be observed as a general rule. That the provisions of the Vth, \'Ith, and Ylllth Amendments to the Constitution, relating to criminal pro- ceedings, a])ply only to the courts, &c.,of the United States, see Barron r. Maynr of Baltimore, 7 Peters, 243; E.f parte Watkins, id. 573; Twitchell r. TheConnnonwealth, 7 Wallace, 326; Edwards v. Elliott, 21 id. 557; Walker r. Sauvinet, 2 Otto, 90; Pear- son v. Yewdall, 5 id. 294; 1 Bish. Cr. L. § 725. See also, "The Supreme Court on the Military Status" by Judge- Adv. Gen. Lieber, 31 Am. Law Rev., 342, and cases cited. ^By a provision of the act of June 6, 1872, now incorporated in the 98th Article of War. 652 SENTENCE AND PUNISHMENT. guard, the penalty of "" sounding- all the bugle calls at the post during the same period.'' XXXVII, 499, Maij^ 1870. So adrUed in regard to a sentence which required a deserter — not for the purpose of making good the time lost by his desertion but as a, pimishm en t— to serve for an additional year after the expiration of his term of enlistment.^ XIV, 396, April, 1865. 2316. Also held that a sentence cannot legalh" extend the time of the service of a soldier as such beyond the term for which he origin- ally contracted. 40, 110, March, 1890. Thus the existing law fixing the term of a soldier's enlistment at five years,^ a court martial can have no power to prolong it by adding to such term an additional period by way of jpunuhfrnent. So a sentence " to make good, at the expiration of his term, a period of fifty seven days during which his services were lost to the United States by being held in hospital on account of pistol wound received by him while in the commission of a disorder in violation of the 62d Article of War," held unauthorized and properh" disapproved.^ L, 113, June, 1886. 2317. Where, while an ofiicer or soldier is undergoing a certain sen- tence, he is again brought to trial for a military ofl'ence, and a further sentence is adjudged him, imposing a punishment of the same species as that which is being executed, it is the general ride of the service that the second sentence is to be regarded as ctim nlatlve upon 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 cumula- tive b}^ operation of law irrespective of any direction (and such direc- tion is in fact rarel}" expressed) in the sentence. XXXVIII, 109, 556, January and April, 1877; XLIII, 102, Deceinler, 1879; Card 1609, An(jn^, 1895. (See §§ 1479-1181, aide.) 2318. While upon the conviction of an ofiicer or .soldier under a charge of a crime, such as manslaughter, robl^erv. larceny, &c., to the prejudice of good order and military discipline, the statute of the United States or State, providing for its punishment as a civil ofience, may well be referred to as indicating the nature and extent of the pun- ishment deemed proper for the same l)y the civil authorities, the punish- ment to be imposed h\ the court martial should nevertheless be measured 'See — as in accord with the spirit of this paragraph — the following orders: G. C. :. (). 829, War Dept., 1864; G. O. 17, Dept. of the Missouri, 1861; do. 56, Armv of le Potomac, 1862; do. 8, Dept. of the Northwest, 1864; do. 49, Middle Dept., 1864. '•'Now fixed at three years l>y tlie act of August 1, 1894. ''That the liahiHty to make good time lost ))y desertion results from a violation of the enlistment contract, that it is inde})endent of any punishment which may be adjudged, and that it need not be adjudged or mentioned in the sentence, see § 64, ante. SENTENCE AND PUNISHMENT. 653 less by the criminality of the act as a civil offence than by its gravity as a breach of militar}- discipline. Thus where a soldier, having- been broug'ht to trial before a civil court for the homicide of another sol- dier, and inade([uately sentenced, was subsequently tried by a general court martial for the military offence involved in his act, held that the court would only properly impose upon him a penalty proportined to the injury done to the good order and discipline of the service, and should not, by an excessive punishment, attempt to compensate for the over-lenient judgment of the civil court. XLI, 188, April. 1S78. 2319. The word "month" or ''months,'' employed in a sentence, is to be construed as meaning ealeridar month or months; the same sig- nificance being given to the term as is now commonly given to it in the construction of American sfatute^s in which the word is employed.^ The old doctrine that ""month,"" in a sentence of court martial, meant lunar month, has long since ceased to be accepted in our military law. XXVI, 874:, Jan uan/. 1868. 2320. It is a principle of military law that no military authority, whether the reviewing officer or other commander, can add to a pun- i.s/u/ient as imposed by a court martial. Neither forfeiture of pay, for example, nor fine, nor a corporal punishment, can be inflicted upon an officer or soldier where the sentence fails to adjudge it. And neither the fact that the punishment awarded by the court is regarded as an hutdequate one," nor the fact that the period is a time of vv/r, can affect the application of the principle. VIII, 444, 557, J/ai/ and June, 186^; XX, 430, Felruury, 1866; XXI, 257, MarcK 1866. Thus, where the punishment imposed 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. XXVII, 511, Febriim'y, 1869. So where the sentence iuiposed simply a forfeiture of pay, held that it was adding to the punishment to order it to be executed at a military prison. XI, 98, jy<>ve)uhet\ 186 If. ; XX, 340, Fehruary, 1866. 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, 31<>, April, 1866. Where an officer, on conviction of the embezzle- ment of a certain sum, was sentenced, without further penalty, to be dismissed the service, held that the department commander, in approv- ing the sentence, could not legally order him to be confined at his sta- tion till he should make good the amount embezzled, since this would ^See Moore r. Houston, 3 Sergt. & Rawle, 184; Sedgwick, Cons. Stat. & Const. L. 2d edition, p. 358; also 1 Rev. Sts. of New York § 4. See R. S. N. Y., 1896, Collins, vol. 1, p. 116, § 26. '•'Compare Barwis v. Keppel, 2 Wilson, 314. ^ See more particularly, as to adding to the punishment in cases of sentences of confinement, §§ 1464-1468, ante. 654 SENTENCE AND PUNISHMENT. be an adding- to the punishment imposed by the court, as well as an illegal exercise of power over a civilian. XXVIII, 122, Septemher^ 1S6S. 2321. A mitigated sentence can wo move, hejidded to^ in execution, than can an original sentence approved without mitigation. 62, 340, Novemher. 189 S. 2322. A military punishment can legally be imposed only by sentence of court martial after a regular trial and conviction. Such a punish- ment cannot be imposed by a mere order. ^ VI, 105, May^ 186 Jf.; VIII, 344, 505, 620, April and Juli/., 1864.. Thus a reviewing officer who has disapproved the sentence imposed b}' a court martial in any case, cannot thereupon order an independent punishment to be sutfered b}'^ the accused. II, 446, 525, May and Jwie., 1863/ XI, 310, December., I864. So, such an officer, in disapproving an acquittal, cannot order that the accused be confined or otherwise punished. XII, 249, Jan- uary^ 1865. So, a coumiander, in restoring a deserter to duty without trial according to the Arm}' Regulations, is not authorized to require him to submit to a punishment, as a condition to his being so restored, or otherwise. XVI, 83, May, 1865. ^ We have in our military law no system of summary punishments. Except in a few cases, unimportant in themselves or of rare occurrence in practice (see Arts. 25, 52, 53 and 54), our code recognizes no punishments other than such as may ))e adjudged upon trial and conviction by a military court. In the general orders, pun- ishments inflicted merely at the will of military commanders, have been repeatedly condemned as illetral and forliidden in j)ractice. SeeG.O. 81 (A. G. O. ), 1822; do. 53, Hdqrs. of Army, 1842; do. 2, 4, War Dept., 1843; do. 39, Hdqrs. of Armv, 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. O. 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. Ofhcers who have resorted to such ])unishments have been repeatedh^ brought to trial and sentenced. See G. 0. (A. & I. G. O.) of June 30, 1821; do. 8 (A. (i. O.), 1826; do. 28, id., 1829; do. 64, id., 1832; do. 2, 6, 68, War Dept., 1843; do. 39, Hdqrs. of Army, 1845; do. 53, Dept. of Va. & N. C. 1864; do. 22, Dept. of the Platte, 1867; do. 9 Mil. Div. of the Atlantic, 1869; do. 14, Dept. of South, 1869; G. CM. O. 50, Dept. of the Missouri, 1871. And enlisted men, tried and sentenced for insub- ordinate conduct, where such conduct has l)een induced or aggravated by illegal corporal punishments inflicted ujxm them by superiors, have commoidy had their sentences remitted or mititrated, or altogether disapproved. See G. O. 49, 76, Northern Dept., 1864; do. 40, Dept. of the East, 1868; G. C. M. O. 90, »/., 1871; G. 0. 63, Dept. of Dakota, 1868; do. 76, id., 1871; G. C. INI. O. 45, id., 1880; do. 93, Dept. of the South, 1873. In pro])er cases of course, as where violence is einployed, escape attem{)ted, &c. , by soliliers who are mutinous or disorderly, or in arrest under charges, force mav be used against them according to the necessities of the case. See I 1636, aide; also G. O. 53, Hdqrs. of Armv, 1842; do. 2, War Dept., 1843; G. C. M. 0. 47, Hdqrs. of Army, 1877; G. O. 53, Dept. of Va. and N. C, 1864; do. 40, Dept. of the East, 1868; G. C. M. O. 112, /(/., 1870; do. 90 id., 1871; G. O. 23, Dept. of the Lakes, 1870; do. 10(i, Dept. of Dakota, 1871; do. 93, Dept. of the South, 1873; do. 31, Mil. Div. of the Atlantic, 1873; G. C. U. O. 37, Dept. of Texas, 1880. This, liowever, is /tirinitiov. and n-.sfrniiit, not j)inii>r!l. 1897. soldiers' home NATIONAL VOLUNTEER, 661 SOLDIERS' HOME—NATIONAL VOLUNTEER. 2341. The act of March o, 1891, c. 512, provides that "the accounts rehitinjj" to the expenditure of such sums'' (appropriated for the sup- port of the National Volunteer Home), "as also all receipts by said home from whatever source, shall, in addition to the supervision now provided for, be reported to and supervised b3"the Secretary of War." Held^ that this provision called for an examination of the accounts by the Secretar}', with a view to the correction of errors or unauthorized uses of the funds, and a formal approval in case none such were dis- covered; also that b\' the term "receipts" were included receipts not only from outside V)ut from interior sources — as f i"om the sale of flowers and provisions — so long as such continued to accrue. 51, 101, Decein- lei\ 1891. 2342. By the act of March 3, 1893, c. 210, it is provided that "the Secretary of War shall hereafter exercise the same supervision over all receipts and disbursements on account of the volunteer soldiers' homes as he is required hy law to apply to the accounts of disbursing officers of the army." Held^ that the supervision here indicated should be analogous to that prescribed by the act of April 20, 1874, c. 117, entitled "an act to provide for the inspection of the disburse- ments of appropriations made by officers of the army," and should be regulated by the provisions of titles LVIII and LXXIl of the Army Regulations, so far as applicable. 58, 484, ApriU 1893. 2343. Held^ later, that certain projected legislation, proposing to vest in the Secretary of War, a general superirlsion, that is to say, superintendence, direction and control, of all the atfairs of the national 'volunteer homes, would be in direct conflict with the existing pro- vision of Sec. 4825, Rev. Sts., fixing and defining the corporate pow- ers of "The National Home for Disabled Volunteer Soldiers''; and that, if such legislation be adopted, it should properly provide for a repeal of so much of this section as gives the corporation control of its atfairs. It may indeed well be questioned whether the recent pro- vision of March 3, 1893, c. 210, giving the Secretary of War " super- vision over all receipts and disbursements on account of the volunteer soldiers' homes," does not vest him with an authorit}" greater than is consistent with the said corporate powers. 63, 61, Decemher, 1893. 2344. Sec. 4835, Rev. Sts.. providing that the inmates of the "National Home for Disabled Volunteer Soldiers" shall be " subject to the rules and Articles of War," held., to be clearly an unconstitutional enactment, such inmates not being any part of the armies of the United States, but cwllui/i.s. The fact that the\' had once been members of the volunteer forces could not attach to them, after their final discharges, any amenability to the military jurisdiction.^ XXX. "jsti. . [pr/7, 1870. 'See § 1038, ante, and note; aLso, as to jurisdiction of courts luurtial over civilians, § 1031, a)ite, and note. 6(V2 SPY. SOLITARY CONFINEMENT. 2345. ILhl that a sentence of two months' confinement, which })i-e- scribcd that the continement for two days out of every three should he solitary, was unauthorized as transcend ing' the proportion fixed hy the Army Regulations; such sentence in fact requiring that the confine- ment should ])e solitary for forty days out of sixty, while the regula- tions authT, and V, 315, mjoemJ^er, 1863; V, 572, and VII, 60. January^ I86J1.. 2347. 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 communication with agents of the enemy, and conveyed intelligence to them — held that he was amenable to trial as a sp3^ before a militar}- court under the statute. XI, -IT-l, Fehruary., mr>. 2348. An officer of the enemy's army, having come secretly within our lines, proceeded from Baltimore through a part of the country ^ This section provides: "All persons who, in time of war, or of rebellion against the sujjrenie autliority of the United States, shall l)e found lurking or acting as spies, in or about any of the fortifications, posts, (juarters, or eneanipnients of any of the armies of the United States, or elsewhere, shall l)etrial)le by a general court-martial, or by a military commission, and shall, on conviction thereof, suffer death." ^ Halleck, Int. Law, 40(3-7. STATEMENT OB^ ACCUSED. ' 663 contain intr numerous military posts, &c., to Detroit, where he entered Canada, •.•omnumicated with the enemy's agents there and received from them letters to be conveyed to Richmond, On his return, while travelling- under an assumed name and disguised b}^ citizen's dress and an artiticial coloring of the hair, he was recognized and arrested, and upon his arrest destroyed at once his papers. Held that he might properly be brought to trial, and his otience investigated under a charge of being a spy; and that his claim that he was merely a bearer of official dispatches was entitled to but slight consideration, in view of the fact that he had taken the tirst opportunity to destroy the evidence on which such claim was based. XV, 14, Fefrruary^ 1865. 2349. Where a soldier of the enemy's army, separated from it on its retreat from Maryland in 1864, was arrested after wandering about in disguise within our lines for a month, seeking for an opportunity to make his way to the enemy's forces and join his regiment, held that he ^vas not properly chargeable with the otfence of the spy but should, because of his disguise, be punished for a violation of the laws of war. XI, 82, October, 186J^. 2350. A mere violation of the law of war prohibiting intercourse between belligerents, conmiitted 1)\^ a civilian in coming Avithout authority within our lines from the enemy's country, cannot properly be regarded as attaching to him the character of the spy. IX, 9.5, May, 1S6J^. 2351. The spy must be taken In, flagrante delicto. If he succeeds in making his return to his own army or country, the crime, according to a well settled principle of puldic law, does not follow him, and, if subsequently captured in battle or otherwise, he cannot properly be brought to trial as a spy.' V, 218, 286, JSfovemher, 1863; IX, 100, May, 186 Jp; XXIII, 150, May, 1867 ; Card 2614, September, 1896. STATEMENT OF ACCUSED. 2352. In any case tried by court martial the accused ma}^, 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 properly should be taken into consideration by th(^ court. XX, 432, Februofry, 1866. 2353. While the statement is not evidence, and the accused is not in 1 The leading case on this point in this country is, In the matter of Martin, reported in 45 Barb. (N. Y.), 142, and 31 How. Pr. 228. See also par. 104, G. O. 100, A. G. ()., of 1863. ■^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 irilness under the act of March 16, 1878, see note to § 2461, ])osf. 664 STATUTE CONSTRUCTION OF. general to be held bound by the argumentative declarations contained in the same, 3"et, if he clearly and unequivocally admits therein facts material to the prosecution, such ma}^ properl}' be viewed b}^ the court and reviewing officer as practically facts in the case.^ XXVII, 407, Decemher^ 1868. So, where the accused, in his statement, fully admits that certain facts existed substantially as proved, he may be regarded as waiving objection to an}' irregularit}' in the form of the proof of the same. XXVII, 385, Novemher, 1868. 2354. A large freedom of expression in his statement to the court is allowable to an accused, especially in his comments upon the evidence. So, an accused may be permitted to reflect within reasonable limits upon the apparent anmius of his accuser or prosecutor, though a superior officer and of high rank. But an attack upon such a superior, of ajjersonal 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 description ma}' indeed l)e required by the court to be omitted by the accused as a condition to his continuing his address or tiling it with the record. XXVII, 520, February., 1869. 2355. It is settled in our military procedure that the dosimj state- ment or argument, where addresses are presented on both sides, shall be made on the part of the prosecution. The judge-advocate, how- ever, may, and, in practice, not rarely does, waive the right of offer- ing 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, January., 1865. 2356. The 2)iMiGatioii by an officer, after his acquittal, of the state- ment 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 officer 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 ofl'ence. to the prejudice of good order and military discipline, if not indeed a violation of Art. 61; and further that it was no defence to such a publication that the court on the trial had permitted the statement to be made and recorded. XXXIII, 582, December, 1872; XXXIV, lb6, March, 1873. STATUTE— CONSTRUCTION OF. 2357. In applying the Articles of War to particular cases, a case should not be treated as within the penal provisions of an article unless * That 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 r. Fazackerly, 36 Barb. (N.Y.),892. STATUTE CONSTRirCTION OF. 665 it is quite clearly included by the words of description employed. XXXVIII, 199. July, 1876. 2358. It is well settled that the word "may,'' in a statute conferring power upon a public officer, is to be construed as equivalent to "must" or "shall," where the enactment imposes a public duty, or makes pro- vision for the benefit of individuals whose rights cannot be effectuated without the exercise of the power. ^ So where the Secretary of War was ' ^ authorized " by an act of Congress to reopen a settlement pre- viously made with a railroad compan}" 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 company on such re-adjustment, 7i^M that the statute did not confer a mere dis- cretionary authority but was mandatory upon the Secretary.^ XLII, 328. June, 1879. - 2359. The proper construction of appropriation acts providing- that a certain sum or so much of it as may be necessary, may be expended on a certain work for the benefit of the public is in general, if there be no modifying clause, that it was the intention of Congress that so much of the appropriation as ma}^ be necessar}^ for the work shall be expended on it. In such cases it cannot be presumed merely from the use of the word "may " in the acts that it was the intention to vest the one whose duty it is to expend the appropriation, with a discretion to do or not to do the work appropriated for. The word may have such a meaning but it is not to be inferred from the word alone when used in acts of this character. Card 2473, July, 1898. 2360. While there is a distinction between a statute in which a pu])lic official is "authorized," and one in which he is "required" 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 mili- tary reservation "at such times as he may deem most advantageous to the interests of the Government, and in such manner as hereinafter provided," and further provision was made in the act in regard to the laying out of a part 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 Secre- ^ See Minor v. Mechs. Bk., 1 Peters, 46; Supervisors v. United States^, 4 Wallace, 435, and cases cited; also Fowler r. Pirkins, 77 111. 271; Kans. P. R. R. Co. r. Reynolds, 8 Kans. ()28; People v. Conirs. of Buffalo Co., 4 Neb. 150. On the other hand, see § 87, ante, for an instance in which "shall" in u statute is interpreted as meaning; mmi. ■■'Seeconcurringopinionof the Solicitor General in 150pius. At. Gen., 621; also Super- visors V. United States, 4 Wallace, 435. 666 STATITTE CONSTRUCTION OF. taiT could not properly omit to proceed with such sale for any consid- erable period, unless it was found to be clearly for the public interests to postpone the same. XXVII, 525, FebrxLary^ 1869. 2361. Held that the remarks of members of Congress in a debate on a bill, as to the purpose of the proposed measure, the reasons for adopting- the same, &c., did not ordinarily constitute a safe basis for the accurate construction of the same after it had become enacted.^ XXXVII, 056, June, 1876. 2362. Where a statute clearly requires a thing to be done in a par- ticular mode and form, the same cannot legall}" be varied from in mate- rial details by the officer charged with the performance.^ Thus, where Congress appropriated certain funds for a bridge, which, it was expressl}' specified in the act, was to be erected according to a cei'tain designated plan which had been recommended for the purpose by the Chief of Ordnance, — Jield that the construction of the bridge in accord- ance with such a plan was a condition to the due expenditure of the mone}' appropriated, and that the plan could not legally be departed from in the construction.^ XXVIII, 664, June., 1869. 2363. An act of Feb. 28, 1892, " authorized " the President to issue to an officer of the army a commission of a date prior to his existing commission. Held that this was a case where, because of the individ- ual right involved, the language of the statute, though in form per- missive, should be construed to be mandatory.* 58, 309, March., 1893. ^"In expounding a law, the judgment of the court cannot be influenced in any degree by the construction placed upon it, 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 be collected ex visceribus suis, as the only correct ground of decision thereon. It is of no monent, in my idea, how it was treated by different gentlemen on the floor of Congress." And see United State.s r. Union P. R. R. Co., 1 Otto, 79; Leesei'. Clark, 20 Cal. 388; Keyport, &c., Co. v. Farmers, &c.,Co., 18 N. Jersey Eq. 13; 13 Opins. At. Gen. 368. But it is said by Mr. Justice Field, in Ho Ah Kow V. Nunan, 5 Sawyer, 560, that while "statements in debate cannot be resorted to for the purpose 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 j^ro- posed and the mischiefs sought to be remedied." In an opinion of Aug. 23, 1879 (16 Opins. 378), the Attorney General remarks that tlie 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 measure, but scarcely so when they expressed different views on the subject. In an earlier opinion ( 15 Opins. 625), 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 delusive and dangerous to admit messages of governors, journals of the legislature, or reports of committees, to aid in construing statutes." ^See Commissioners v. Gaines, 3 l^rev. 396. ^See concurring opinion of the Attorney General in 13 Opins. 78; also, later opinion in 20 Opins. 653. * Supervisors v. United States, 4 AV'allace, 435; Endlich on the Interpretatiin of Statutes, § 309. STATUTE TO RESTORK DISMISSED OFFICERS. (Wl7 And similarly held as to the effect of the word ''authorized'"' in Sec. 224, Kev. Sts., authorizing the Secretar}^ of War, in case of the loss of a soldier's discharge, to issue to him a duplicate. 36, 409, Novemher^ 2364. In an act of Sept. 20, 1890, authorizing a railroad company to bridge certain navigable waters, it was provided that the authority should cease and be inoperative if after the expiration of two j^ears the work was not commenced. The w^ork was not in fact commenced within the period limited, but on February 28, 1893, after such period had elapsed, a further act was passed, which, without re-enacting the former act, simply extended the time within which the construction might be commenced and completed. Held that such act had the effect of reviving the former act. 59, 21, Aprils 1893. 2365. The Army Appropriation Act of Sept. 22, 1888, and the sub- sequent similar acts, provide that, "after advertisement," army sup- plies "shall be purchased where the same can be purchased the cheapest, quality and cost of transportation considered." Held that this provision did not repeal that of Sec. 3716, Rev. Sts., to the effect that in advertisements preferences should be given to certain articles; the later enactments relating to purchasing only and the earlier to the form of advertisement before purchase. 60, 130, June., 1892. 2366. It is a uniform principle in the construction of statutes — which do not expressly prescribe a difl:erent rule — that where time is to be computed from an act done, the day on which the act is done shall l)e excluded.' Card 1084, March, 1895. STATUTE OR BILL FOR RESTORATION, &c., OF DISMISSED OFFI- CERS.' 2367. Upon a bill by which it was proposed to restore a dismissed officer to the army by declaring his "record amended so that he should appear to have been continuously in service," — remarked that such bill was not in a usual or proper form for effecting the object designed; that the obliteration of the record of an officer's dismissal on the T)ooks or rolls of the War Department would be wholly inoperatiA'e ^^ev .y^j to reinstate the officer ; moreover that the legislative department of the gov- ernment was without authority to restore such an officer to the army but could only authorize his restoration b}" the appointing power.^ XXXV 1 , 216,' July, 1875. ^ See 9 Opins. At. Gen. 131. ^ Since the opinions under this head were rendered, the kind of legislation pointed out as olijoctioiiabk' has been resorted to with increasing frequency. ■'There was subsequently substituted for this bill one authorizing theajiijointment of the officer in the usual manner, which became a law. But see, in this connec- tion, the opinion of tlie Attorney General in a similar case in 14 Opins. 448. 6BS STATUTE TO RESTORE DISMISSED OFFICERS. 2368. I'^poii ;i l)ill to authorize 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 dismissal, — f^enMrked that as this officer had, bv his dismissal, been completely separated from the army and had become a civilian, he could not be dischai'gedivoiw the army with- out being readmitted to it, and that he could not be so readmitted without a new appointment (see § 1^00, ante):, further that while the bill might possibly be construed as authorizing the Executive to reappoint 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 regard to appointments, — and that it would there- fore be preferable 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, January^ 1876. 2369. Upon a bill in which the " Secretary of War" was authorized and directed to restore a dismissed officer to the rank of captain as of the date of his dismissal, — remarked that while such bill, if enacted, might, in order to give it a legal effect, prolxibly l)e deemed sufficient to confer upon the Secretary' as the head of a department an authorit}' to exercise the appointing power, yet that the same was in terms inad- missible and tended to establish a bad precedent, and would therefore preferabl}" be amended, so as to conform to the usual and proper course of legislation in such eases. ^ XXXVIII, 61, January., 1876. 2370. Where an act of Congress authorized the President "to restore"' a person, described as late a paymaster of the army, "to the Arm}^ Register, for the purpose of being placed on the retired list," — h^d that this enactment, though inaptly expressed, might properly be construed as intending to exercise the power conferred upon Congress hj Art, II, Sec. 2, par. 2, of the Constitution of "vesting in the Pres- ident alone" the appointment of an "inferior" officer; and therefore that a simple appointment h\ the President of this officer, without any nomination to or confirmation b}- the Senate (followed by his retire- ment by the President with the rank of major), would bo 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 connnission had thereupon been issued to him. XLII, 178, F'ehrxary, 1879. And similarly h(> entitled if it ho found that he was wroMin fully dismissod, or to contirin his di,sniissal if it hv other- wise found." l'n(l(>r this act the Secretary of War oi'dered a court of in(|uiry Nvhicii found that the ollicer had becMi " wroniifully dis- missed," and declared the dismissal to l)c a nullity. The act and i"cc- ord of the court liaxinj^" heen I'eferred hy the Secretary' of War to the Judii'e-Achoeatc (roneral for opinion as to the executive^ action proper to l)e taken, if any, — held that the oidy manner in which a dismissed odiciM', or other civilian, could he axhnitted to the arm}' was by an a})j)ointment made })ui'suant to the pi'o\isions of Art. II, Sec. 2, par. 2, of the Constitution; tluit Congress was not empowered to :i[)))oint a ci\iliaii as an officer of the army, oi" to authoi'ize a military coui't to maki> such an appointment;' that the act in authori/in*^' the I'estoration of the ollicci- hy and upon the favora))le tindiny of th(> coui't, was clearly unconstitutional and inopei-atixc; furthiM' that no implied authoi'ity for an appointnieid of tlu> olHcer hy the /W-wleal could j)i'opcrly he oathered fi'om the act.' And added — that the jii'inciple of that extreme instance of a liheral constru(^tion of a statute in favor of the exercise of the appointing' ])ower, presented in the ()})iidon of th(^ Attoi'ney (ieneral in the case of Lieut. Von Ijucttwitz (14 Opin- ions, 448), could not he (>xtend(Hl to thv pi'esent case, since l)y this act the fimction of the executive de])artm(Mit was in terms conhned to the ordering of tlie cou'-t; the authority to appoint, so far as any was con- ferred, ])einy- expressly reserved hy Congress to itself, or rather to the court. XLll, 21t7, Jfat/, 1S70. STOPPAGE. 2374. I'he pay of an officer or soldier cannot he suhjected to stop- page except 1)y the authority of a statute or regulation .specifically authorizing the same or of a sentence of court martial imposing a fo('feiture or fine as a punishment, or where the party has hecome indehted to the United States on aceoimi. XXXIII, 445, October, 1872. The Attorney Ceneral hiis also h(dd (21 Opins., 465) that ''stoppage of pay against a soldier is unauthorized unless it is made in execution of the sentence of a court martial, or in pursuance of a statute, or in 'A military court, being no part of the U. S. judiciary (see § 992, nnte), is of course not inclndorl in the courts of hiw" to which a power of apiwintmont of "inferior" oHiceis is authorized to l)e jiivi'n l>y Art. II, Sec L', (lar. 2, iHi., 1893. 2375. The United States is not authorized to stop against the pa\' of an ofHcct()1>(-i\ 1889. But it is entirelv legal to stop against a soldier's pay, under the Army Regulations, an amount required to reimburse the I'^nited States for loss on account of damage done to public prop- erty, while at the same time bringing the soldier to trial by court mar- tiaf foi- the otience involved. 62, 181, Decemher, 1893. 2378. I/< Id that th(> Gov(M"mnent was entitled to retain so much of a 672 STOPPAGE. soldier's pay as would cover his indebtedness to it, even though the pay due consist in whole or in part of "detained" pay.' 62,496, Deceinhet', 1893. 2379. A soldier, who deserted from Jefferson Barracks, surrendered at Chicago, where the sum of four dollars was expended by the United States for his meals while in jail. Held that this sum, as substantially included within the item of "expense of apprehending deserter," specitied in par. 1523, A. R. (1889), was properly charged against him on the muster-and-pay roll. 60, 167, June., 1893. 2380. The amount of the allowances of the witnesses, or other expense attending the trial by court martial of a soldier, cannot legally be stopped against his pa}^, whatever the offence of which he may be convicted. '' 64, 301, AprH, 189 J^. 2381. Pay due an officer or soldier cannot legally be stopped to reim- burse a telegraph compan}" for moneys received by a sergeant of the then Signal Corps for transmitting private messages over its line, the same not being a line "operated by the United States," in the sense of the act of March 3, 1883, c. 143, and the indebtedness of the sergeant being to the telegraph company onl}', not to the United States. 61, 185, Aiigmt^ 1893. An officer or soldier cannot legally be mulcted of any part of his pay for the satisfaction of a private claim. 33, 171, June, 1889; Cards 5446, Decemher, 1898; 8365, June, 1900. 2382. Held that, under Sec. 1766, Rev. Sts., an amount of fees ille- gally received by a retired officer of the army while acting in the capacity of a U. S. consul (a bonded officer) in a foreign country, could legally be stopped against his arm}' pay; the liability to the United States referred to in the section including a civil equally with a military liability. =* 50, 1, Octoher, 1891; Card 5356, Novetnher, 1898. 2383. The Arm}^ Appropriation Act of June 16, 1892, provides that "the pay of officers of the army may be withheld under Sec. 1766, Rev. Sts., on account of an indebtedness to the United States admitted or shown by the judgment of a court, but not otherwise, unless upon a special order issued according to the direction of the Secretary of War." Held that the last part of this provision was to be construed not separately but in connection with the former, and could not be interpreted as empowering the Secretary of War to stop the pay of officers of the army to satisfy private debts or claim for alimony. 64, 154, March, 189 1^; Cards 3500, Septemher, 1897; 6882, August, 1899; 7635, Fehriumj, 1900. 2384. Jleld, that pay due an oflBcer or soldier ma}^ legally be stopped ' The piuiishment of detaining pay was abrogated V)v G. O. 25 of 1894. •^Ket' Circ. 19, A. G. O., 1893. " 3 See (iratiot v. U. S., 15 Peters, 336; McKnight v. U. S., 98 U. S. 180. STOPPAGE. 673 to reimburse losses to post exchange, company, hospital, baker}^, etc., funds; all these funds being used to carry on public agencies or instru- mentalities of the Government.^ Card 3171, Octohei\ 1897. 2385. A recruit absented himself from a detachment of recruits at a place in Ohio, while en route from the recruiting depot to his proper station, Fort Yates, N. D., and was taken to Fort Niagara and tried upon a charge of desertion but convicted of absence- without-leave only. Ilthl that the onh^ xtopjxiges to which he could legally be subjected were — the amount of the pa}^ and allowances accruing during his absence, under par. 132, A. R. (see 144 of 1901), and the amount of the expenses incurred in transporting him "to his proper station," under par. 124, A. R., as amended by G. O. 14 of 1890 (see 137 of 1901). But hdd further that the words "to his proper station," in the last part of the amended regulation, were to be construed as equivalent to the expression, in the lirst part — "to the station of his company or to the place of his trial"; that it would not be legal to stop against him the expenses of the transportation to both places; that if the place of trial was — as here — different from the station of the company, it would be proper to stop the expenses of transportation to the former and not to the latter; and that, this being done, the stoppage of the expense of transporting him to the station of his company, after the trial, would not be authorized. 64, 301, Ajnv'l, 1894- 2386. A civilian, then at Pittslield, Mass., was duly employed, by the engineer officer in charge of a River Improvement, as an assistant at a compensation of $150 per month, and ordered to report at Mont- gomery, Alabama. In subsequently settling with him for his services, the officer allowed and paid him, in addition to his salary, the amount of his expenses of travel between Massachusetts and Alabama. Held that such allowance was unauthorized as being in excess of the con- tract, which stipulated only for the payment of the salary named, and was therefore legalh^ stopped by the accounting officers against the engineer officer's pay. 43, 182, Octoler, 1890. 2387. Sec. 1766, Rev. Sts., which prescribes that "no money shall be paid to an}- person for his compensation who is in arrears to the United States, until he has accounted for and paid into the Treasury all sums for which he may be liable", has not in practice been so strictl}" construed as to preclude the making of stoppages against the pay of officers and enlisted men in such monthly amounts as to leave a margin for necessary living expenses. Thus where the stoppage against an enlisted man was $100, advised that it be collected at the rate of ten dollars per month. Card 7415, Decembe7\ 1899. 1 See § 1424, and note to § 2014, ante. 16906—01 43 674 suBSisTEisrcE stores. SUBSISTENCE STORES. 2388. Where subsistence stores were sold by a post commissar}^ of subsistence to a mess of three officers of the post, and charged to the mess as such, held that such mess was not in the nature of a commer- cial partnership in which each member was ])ound for the joint indebt- edness, but was simply an association, for purposes 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 who had paid his proportion to one of the other members who acted as caterer but who had deceased without paying over this amount to the commissary, remained liable for such proportion to the United States. XLI, 155, 21arch, 1878. 2389. Held that the "ten per cent," directed b}" the Army Appro- priation Act of June 23, 1879,^ to be added to accounts for sub- sistence stores "sold to officers and men" of the army, could not legally be added to the cost of the subsistence stores furnished for the prisoners at the Leavenworth Military Prison; such prisoners not being embraced in the class referred to in said act, but being provided for by a separate and distinct appropriation for the support of the prison, contained in the act of March 8, 1879, c. 182, and which is unaccom- panied by anj' such requirement. XLI, 651, Augu,st., 1879. 2390. Held that the ten per cent, required by the act of June 23, 1879, to be added to the cost of subsistence stores sold to officers and soldiers, "to cover wastage, transportation, and other incidental charges," was to be added in ever}' instance of such sale, whether or not there had been any wastage, &c. , in the case of the particular article or articles sold; the "charges" intended to be covered being under- stood to be charges incurred in connection with the stores sold or kept for sale as a whole. XLI7I, 100, Decernher, 1879. 2391. Ileld that the provision of the act of June 23, 1879, in regard to the adding of ten per cent, to the cost of subsistence stores sold to officers and soldiers, was to be viewed as qualifying the provisions of Sees. 1141: and 1145, Rev. 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 contractors under contracts expressly stipulating for such sales to be made by them. XLIII, 100, December., 1879. 2392. On the question whether the Secretary' of War has legal authority to issue a regulation authorizing the sale of quartermaster's and subsistence supplies to civilians at remote posts who are employed ^ This provision, also in Army Appropriation Act of May 4, 1880, was repealed by the act July 5, 1884 (23 Stats., 108). SUMMARY COURT. 675 for services in connection with the arnn^ such for instance as civilian tailor, shoemaker, laundryman, meat contractor, etc., it was lidd^ that there is no express statutory authorization for issuing- such a regula- tion, but a precedent for such action is found in General Orders No. 106, Adjutant General's Office, 1898, which amends paragraph 1284 of the Arm}' Regulations to read: "Civilians at rates of pay of sixty dollars or more per month, employed with the army at remote places or in the field where food can not otherwise be procured, maj- be allowed to purchase from the Subsistence Department, in limited quan- tities for their own use, for cash at cost price, such articles of the ration or of stores kept for sales to officers and enlisted men as can be spared from the supplies on hand."^ The Secretary of War has the same legal authority to promulgate the regulation proposed that he had to make the one quoted; but advised that the " meat contractor" be not included among those to whom sales are to be authorized. Card 6505, June, 1899. SUMMARY COURT. 2393. The act of October 1, 1890, c. 1259, substituted the summary court for the regimental or garrison court, in time of peace, much as the act of July 17, 1862, substituted, for the latter court, the field officer's court, in time of war. 43, 122, Novemher^ 1890. 2394. Where a post commander sits as a summarj^ court, no approval of the sentence is required by law, but he should sign the sentence and date his signature."- 64, 36, Fehruary, 189 Jf.. A certification b}^ the post adjutant of the approval b}^ the post commander of the sentence of a summary court is irregular, and should not be permitted. Card 32, July., 1894-. The commanding officer's approval should be over his own signature, and as forfeitures adjudged are operative only upon pay accruing subsequent to the approval unless otherwise directed in the sentence, the date of approval should be entered on the record. Cards 854, January, 1895; 2971, Decemher, 1896. 2395. The provision of the act that accused soldiers shall be brought before the summary court for trial "within twenty-four hours from the time of their arrest" is not a statute of limitations nor jurisdic- tional in its character, but directory only — director}- upon the officers whose duty it is to bring offenders before the court. The proceedings will thus be legally valid though the accused does not appear for trial within the period specified. So held., in a case of an accused soldier ' This regulation before amendment, provirinciple or usage. But see a comparativelv late instance in G. C. M. O. 33, Dept. of the East, 1872. 682 TAX. 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 approval or other form of official personal notilication of the fact of the approval/ XXVII, L>41, Septemher, 1868; XXXIII, 100. June, 1872; XXXVIII, 341, Octoher, 1876. 2424. Under the ruling of the Secretary of War, as published in Circ. No. 3, A. G. O., 1888, an officer, under suspension but not required by his sentence to be ""confined to the limits of his post," is not entitled to forage for his horse or horses during the term of his suspension. 53, 458, 2ray, 1892. T. TAX. 2425. The authorities of a State or Territory (or, of course, of a county, town, &c.) are not empowered to tax an officer or soldier of the army on account of his pay, or for any personal property in his possession properly required for the due exercise of his office or per- formance of his military duties. Officers and soldiers of the army are instrumentalities provided by law to enable or assist the President to exercise his constitutional function of Commander-in-chief and Execu- tive of the nation. The pay and emoluments furnished them by Con- gress are means to make their services possible and effective, and their right to receive and enjoy the same cannot be in any degree impaired or infringed upon by the authorities of a distinct and inferior sover- eign t}^ And the same ]3rinciple of exemption properly applies to their arms, eqijipments, horses, and other personal property required to be possessed and employed by them in the military service.^ XXX, 215, Maixh. 1870; XXXix, 568, June, 1878. 1 Compare §§ 1197, 1848, and 1849, ante. ^ 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 the taxing of the office of a captain in the V. S. revenue service, held as follows: "The compensation of an officer of the United States is fixed by a law made by Congress. It is in its exclusive dis- cretion to declare what shall l)e given. It exercises the discretion and fixes the amount, and confers upon tlie 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 C)f tlie United States which secures the allowance to the officer." Further: "Taxation by a State cannot act upon the instruments, emoluments and persons 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 constitutional means employed by the government of the Uni(m to exe- cute its constitutional powers." In a later case. Society for Savings v. Coite, 6 TAX. 683 2426. The principle exempting from taxation the office or salary of an officer of the United States applies to officers on the retired list equally with those on the active list of the army. Retired officers, being a part of the arm}-, are a part of the machinery of the Govern- ment, though a part not often called into active operation. XXXVI, 154, Decemher^ 187 J^; 291, 2farch^ 1875. But though a retired officer cannot legally be taxed b}^ State or municipal authorities on account of his army pay as property or income, he is subject to be taxed for other property owned and held at his place of residence, like any other citi- zen. XLII, 669, June, 1880. Similarly held with respect to enlisted men on the retired list of the armj'. Cards 3016, March., 1897; 6799, Jnly, 1899. 2427. The question of residence is one of personal intent; an act of will being necessary to acquire it.' 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 sta- tion not by his own volition but in pursuance of the orders of a mili- tary superior. By further 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 temporary, and it is in general mvich more reasonably presumable that an officer's station is not his residence than that it is such.^ XXX, 215, March., 1870; Wallace, 605, the same court declares: "All subjects over which the sovereign power of a State extends are, as a general rule, proper subjects of taxation, but the power of a State to tax does not extend to those means which are employed by Congress to carry into execution the powers conferred in the Federal Constitution. Unquestion- ably the taxing power of the States is very comprehensive and pervading, but it is not without limits. State tax laws cannot restrain the action of the national govern- ment, nor can they abridge the operation of any law which Congress may constitu- tionally pass." This general doctrine is applied by Atty. Gen. Black (9 Opins. -477), as follows: "The authorities of a State cannot impose a tax upon the salary of a Fed- eral officer, or upon the compensation paid by the United States to any person engaged in their service." And as illustrating the principle involved, see also McCul- loch V. Maryland, 4 Wheaton, 316; Weston v. Charlestown, 2 Peters, 449; Searightw. Stokes, 3 Howard, 151; Bank of Commerce v. N. Y. City, 2 Black, 620; Provident Inst. V. Mass., 6 Wallace, 611; The Banks v. The Mayor, 7 id. 16; Bank v. Super- visors, id. 26; Railroad Co. r. Peniston, 18 id. 5; Carrol v. Perry, 4 McLean, 25; Stetson V. Bangor, 56 INIaine, 274; Opinion of Justices, 53 N. Hamp. 634; United States*. Weise, 5 Pa. L. J. R. 61; West. Un. Tel. Co. v. Richmond, 26 Grat. 1; State V. Garton, 32 Ind. 1; 7 Opins. At. Gen. 578; 14 id. 199. In the case of Railroad Company v. Peniston, supra, it is specified by Strong J. that, "the States may not levy taxes, the direct effect, of which shall be to hinder the exercise of any powers which belong to the National government." ' That a person, however, shall be a resident or inhabitant (terms having practi- cally 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 within iti< juris- diction, 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 Foreign-Held Bonds, 15 Wallace, 319; Railroad Co. t. Peniston, 18 id., 29; Duer 684 TAX. XXXVII, 896, March 1S76; XXXIX, 563, June, 1878; XLI, 120, Fehruari/^ 187 S. 2428. An officer or soldier of the army, thouoh not taxable officially, may be and often is taxable personally. He is not taxal)le by a State for his pay, or for the arms, instruments, uniform clothing-, or other property pertaining to his military office or capacity, but as to house- hold furniture and other personal propert3% not military, he is (except where stationed at a place under the exclusive jurisdiction of the United States) equally subject with other residents or inhabitants to taxation under the local law.^ LIII, 598, AjyrH, 1888; LV, 623, June, 1888; 49, 217, Sejyteviber, 1891; Cards 472, October, 189^; 3521, Septemher, 1897; 3574, Ncmemler, 1897; 4888, Septemler, 1898. 2429. The fact that a man has formerly been a soldier, or is now in the receipt of a pension, or is an inmate of a national home for volun- teers, can affect in no manner his liability to taxation in the State of his residence or habitancy, unless, and only so far as, he may belong to a class specially exempted from taxation by the laws of the State. There is nothing in the laws of the United States to relieve such a per- son from being taxed for his poll, or on his property. 60, 325, July, 1893; 65, 161, Maij, 1891^; Card 2513, August, 1896. 2430. The sovereignty and jurisdiction over reserved lands in a Ter- ritory, so long as it remains such, reside exclusively in the United States. So held, that the Territorial authorities of Wyoming, then a Territory, had no legal authority to enact a license fee or other tax for the selling of beer on the military reservation of Fort D. A. Rus- V. Small, 4 Blatch., 263; People v. McCreery, 34 Cal., 432; Hanson r.Vernon, 27 Iowa, 48; City of Philad. v. Tryon, 35 Pa. St., 404; 14 Opins. At. Gen., 200. In the opinion last cited, the Attorney General, upon the question of the authority of the State of New York to tax the property of soldiers held by them upon a part of the govern- ment 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 terri- torial jurisdiction of the State, I do not think that the fact that the owner is an enlisted man in the service of the United States and has done nothing to gain resi- dence or citizenship in the State, is in itself sufficient to exempt the property from State taxation." And it is added: "In regard to land owned by the United States within the limits of a State, over which the State has not parted with its jurisdiction, the United States stand in the relation of a proprietor; and the local officers have, in my opinion, the same right to enter upon such land, or into the luiildings located there, and seize the personal property of individuals for non-payment of taxes thereon, as tliey have to enter upon tlie land or into the buildings of any otiier pro- prietor for the same purpose; it l)eing understood that in the former case the right must be so exercised as not to interfere with the operations of the General Govern- ment." And see 14 Opins., 27. Persons, however, residing within a reservation or Y>\ace, exclusirc jurisdiction over whicli lias been ceded to or reserved bii the United States, are not taxable by the authorities of the State within the limits of which the post or place is situated. See jNIitchell r. Tibbetts, 17 Pick., 29S; Opinion of Justices, 1 Met., 580; Gommonwealth t'. Young, Bright, 302; G Opins. At. Gen., 577 — cited in note to § 676, ante. 'See Finley v. City of Phila., 32 Pa. St., 381; also Hilliard, Law of Taxation, 67. TAX. 685 sell; the onl}" tax pa^^able therefor being the retail dealer's tax of $20, imposed by the United States under Sec. 3244, Rev. Sts. L., 71, Fehmary, 1886. 2431. IleJd, that as exclusive jurisdiction had not been ceded by the State of Nebraska over the military reservation of Sidney Barracks, the State authorities could legally levy a license tax for the selling of beer at the post canteen. L., 153, March., 1886. And similarly held as to the authority of officials of Michigan to tax, under the laws of that State, the selling of liquor at the canteen of Fort Mackinac, a post not under the exclusive jurisdiction of the United States. 36, 161, Octoher, 1889. 2432. Held, that the officer in charge of a canteen, in making sales of cigars, would, though the same were sold to the canteen in the first instance by the Subsistence Department of the Arm}^ be a dealer in manufactured tobacco in the sense of the act of March 3, 1883, and as such liable to pay the government tax of $2.40 ^art of the former, see Kerr r. Jones, 19 Ind., 351; Wantlan v. White, id. 471; In the matter of Kimball, 9 Law Rep., 503; Burroughs /'. Peyton, 16 Grat., 483, 485. 16906—01- — 44 690 VOLUNTEERS. the military establishment at the end of the civil war, l)y the act of July 28, 1866, or other statute, became, or remained, as permanently and completely officers of the regular arm}' as if the}' 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 incidental, and fully conferred in the regular army the brevet rank specified in the same.^ XXX, 1, 3£ay, 1869. 2447. In the case of the volunteers during the civil war, the muster- in was the regular form of acceptance into the service. "Enrol- ment'' or "enlistment" was a mere offer of service not complete till acceptance and muster-in.* In some cases indeed there was no formal muster-in, but the fact of acceptance was sufficiently evidenced by the paying of the soldier, placing him on duty, or availing of his service, or otherwise treating him as duly in the military service of the United States. 54, 313, July, 189^; Cards 7050, 9159, October, 1900. 2448. The so-called Quartermaster's Volunteers, of 1861, composed of clerks and other civilian employees of the War Department, were not authorized by statute to be formed into a volunteer organization, nor wei"e they authorized to be paid or in fact paid as such or other- wise; nor were they mustered into the military service or mustered out or discharged from it. They were merely a civilian body organ- ized with a view to service during the temporary emergency that might arise through the invasion of Maryland by the enemy. So held that the application of an officer to have his name entered on the Army Register as having been a held officer of such organization (as a part of the volunteer army), should be denied. Both Sec. 1226, Rev. Sts., and sec. 2 of the act of June 18, 1878, c. 263, authorizing such entries, contemplate that the officer shall have held volunteer rank, and shall have served as an officer of volunteers in the army of the United States. 32, 12, Ajyril, 1889; 38, 435, Fehruary, 1890. 2449. The term "volunteer army" (as comprehensively used) means that temporary military organization or body of men which the Gov- ernment usually employs and maintains in the military service in time of war or other public danger. It is made up of (1), persons who vol- untarily make their engagements directly with the United States to serve; (2), persons who are conscripted directly by the United States ' See the confirmatory opinion of Atty. Gen. Hoar (as to the status of the judge advocates of the army), in 13 Opinions, 96-99. ''See contra, 17 Opins. At. Gen., 3, 4(5. ■^See, to the same effect, opinion of the Attornev General, dated February 27, 1901. See, also, §§ 1751-1754, ante. VOLUNTEERS. 691 and forced to serve; (3), persons who voluntarily engage with a State to serve in a State militia organization, and are (together with that organization) called into the United States service as State militia by the President; (-t), persons who are drafted b}' a State and forced into a State militia organization, and are (together with that organization) called into the United States service as State militia by the President. Those who make volunteer engagements directly with the United States to serve, and those who are conscripted directly by the United States and forced to serve, constitute organizations which (as well as the regu- lar army) are called into existence by Congress under its constitu- tional power, '"• to raise and support armies." The State organizations are made a part of the armj^ of the United States under authority of a different provision of the Constitution, which provides for '' calling forth the militia to execute the laws of the Union, suppress insurrec- tion and repel invasion." These organizations are usuallv formed (either b}^ volunteer engagement on the part of the men or bj- conscrip- tion by the State authorities) to serve the State, but the President can call them from the service of the State, into the service of the United States. And sometimes the State organizations are formed (either by volunteer engagement on the part of the men or b}' conscription by the State authorities) with the purpose in view of their being transferred to the service of the United States (under the call of the President) as soon as the organizations are formed. But under all of these circum- stances these militia organizations retain their character of State mili- tia, and yet are at the same time (while in the active service of the United States under a call of the President) a part of the army of the United States, and for general purposes, are considered as belonging to that branch of the United States army known as the ''volunteer army " ^ and this, notwithstanding the men may have been conscripted and forced into the State militia organization by the State (to serve the State or to be transferred into the service of the United States), and then called into the service of the United States against their will and under their protest. After State militiamen, called into the United States service by the President, once get into that service, no distinction is made between the two classes on account of the manner in which the State got them into its organization — whether by volunteer engage- ment or b}" conscription. All of them are designated as State militia called into the service of the United States. Card 1301, May^ 1895. 2450. The term "volunteers" is however usually applied to soldiers of a temporary United States arun^ — an army raised and organized and supported and maintained for a limited period by the United * Compare the provisions relating to organization of the " volunteer army," in the act of April 22, 1898. 692 VOLUNTEERS. States independent!}' of s.uy State. ^ This kind of an ann}^ the Presi- dent can- not raise and maintain at any time without express authority of Congress. He has a general authority given him by Congress, to call the militia of the States into the United States service whenever it becomes necessary for the purposes mentioned in the statute. But he has not such an authority to engage or employ what are usually called "volunteers." It follows therefore that evidences that they were "called into service" by the President are not so important in the case of volunteers as they are in the case of militia. If it be found that volunteers actually performed service at a time when an act of Congress authorized them to be raised and maintained and employed, their status is usually determined to be that of volunteers. But if there be no statute which authorized them to be raised and maintained and employed at that time, or authorized their recognition since, their claim to a status as volunteers, rather than militia called into the service of the United States, must fall, no matter how often they were paid as such or how much or how long they have been recognized by the executive branch of the Government. Card 1377, JIat/, 1895. 2451. The act of Congress approved April 22, 1898, prescribed "that all the regimental and company officers shall be appointed by the governors of the States in which their respective organizations [volunteer] are raised." Htld^ that this included not only the original appointments in such organizations, but appointments to fill vacancies, thereafter occurring. Cards 4084, 4228, April and June^ 1898. 2452. By G. O. 13, A. G. O., 1899, par. 148, Army Regulations, was extended to officers of volunteers. Sec. 3 of this order is a regulation in aid of a statute, viz., the "act granting extra pay to officers and enlisted men of United States volunteers," approved Jan. 12, 1899, and with A. R. 148, provides a means of determining whether an offi- cers or soldier's service has been honest and faithful. Held., therefore, that when under these regulations a board is appointed, its approved finding should be held conclusive, as should also the decision of the commanding officer when no board has been appointed or applied for.'' Card 6408, J/ay, 1899. ^For instances of such "volunteers," see act of May 11, 1898, to provide for a volunteer brigade of engineers, and an additional force of ten thousand men spe- cially accustomed to tropical cliiiiates; also sec. 12, of the act of March 2, 1899, for increasing the efficiency of the army and ff)r other purposes. ^This opinion was concurred in by the War Department and the following action noted: " Hereafter, in the case of any officer or enlistetl man of a volunteer organi- zation that has been mustered outof service a record of ' service not honest and faitliful ' that has been made against such officer or enlisted man at the time of hisdiscliarge, in accordance with ])aragraph 148, Army Regulations, and sections, of General Orders No. 13, A.G. O., 1899, will beheld to be conclusive. No cancellation, alteration, or amendment of su(;h a record will l)e n)ade, and all applications for the cancellation, alti'ration, or amendment of such a record will l)e denied, regardless of any and all testimony that may be submitted in support thereof, on tlie ground that the War Department has no lawful authority to review the decision that was made in sucii a case or to change the record of that decision." VOLUNTEERS. 693 2453. A l)oard appointed under the provisions of sec. 14 of the act of April 22, 1898, "to provide for temporarily increasing the military establishment," is not required either by statute or regulation to be sworn or to record the evidence taken. It was evidentl}' intended as a summary proceeding adapted to time of war, and may be I'egarded as merely in aid of the President's authority in time of war to dismiss an officer without trial. It is doubtful whether in the present state of the law it would be proper to swear the members. The boards appointed under sec. 1, of the act of July 15, 1870 (16 Stats. 318), were sworn but those appointed under the act of July 22, 1861 (12 Stats. 270), were not. Those sections were similar to the one under consid- eration. Where the proceedings of a board appointed under this later statute did not show that the members were sworn, and'did not con- tain a report of the evidence taken, held^ the President having approved the report and in accordance therewith discharged the officer, that the discharge was legal. Card 1:81:2, August, 1898. 2454. The date on which a volunteer officer, appointed l)y the Presi- dent, formally accepts his appointment should be considered as the date of the commencement of his military service. No such officer should be recognized as having been in the military service under his appoint- ment because of any service that ma}^ have been rendered by him prior to his formal acceptance of that appointment.^ Card 6644, June., 1899. 2455. The War Department is merely the custodian of the records of disbanded volunteer organizations. Undoubtedh' there were many things which should have been recorded but which were not recorded while the organizations to which the records pertain were still in the service of the United States. This fact however does not b}- any means justify the Department in undertaking to alter or amend the original records in its custody so as to make them show what it may now be thought they ought to have been made to show originally. If such a procedure were permissible with regard to one subject, such, for instance, as that of charges against the pay of enlisted men, it would ))e equally permissible with regard to an infinite number of other subjects; and there would be no end to the alterations and amendments to which the records might be subjected in the course of years. ^ Card 9170, Octoher, 1900. ^See opinion of Atty. Gen., cited in note to § 2447, arde. '^ Under date of 3Iarch 2, 1889, the Secretary of War held that "a record cannot be altered unless tliere is express provision of law authorizing such alteration. Where evidence is filed which convinces tlie officer whose duty it is to report upon a record that the record is not correct, the fact as shown by the record will be stated, followed by a remark showing what in his opinion the correct record should be. It is entirely proper to make a note opposite the record believed to be erroneous, to show what the correct record is, and where the evidence to substantiate the fact may be found. This decision should not be construed to prohibit the correction of errors in a report or record of current or recent date where the officer who made the record makes satisfactory explanation in writing of such erroneous record and authorizes its correction." 69-1 WAR. VOTE OF THE COURT. 2456. .V tie vote upon an}' proposition submitted to the court is equivalent to a vote in the negative — a majorit}' 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 pro- posed iinding or form of sentence, the same is not adopted. XXXI, 511. 010. July and Axujmt, 1871; XXXII, 126, Novemher, 1871. w. WAR. 2457. //J/c7. in a case in which a State judge ha"^ discharged a sol- dier 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 upon such question would properl}" await and abide b}^ the action of the President or Congress.^ XVIII, 293, Octoher, 1865. 2458. The joint resolution of Congress for the recognition of the independence of the people of Cuba demanding that the government of Spain relinquish its authority and government in the Island of Cul)a, and to Avithdraw its land and naval forces from Cuba and Cuban waters and directing the President of the United States to use the land and naval forces of the United States to carry said resolution into effect, was approved April 20, 1898; and by the act approved April 25, 1898, it was declared '"that war has existed since-' April 21, 1898, ''includ- ing said day.-' Held that the latter date, April 21, 1898, was the day upon which the war with Spain began. Card SlS^l, December., 1898. ^ It has subsequently been similarly held in repeated cases. See Phillips v. Hatch, 1 Dillon, 571; Semmes ?). City Fire Ins. Co., 36 Conn., 543; Conley v. Supervisors, 2 West Va., 416; Perkins r. Rockers, 35 Ind., 124; Sutton v. Tiller, 6 Coldw. 595; also United States r. Anderson, 9 Wallace, 56, 71. In the case of The Protector, 12 Wallace, 700, it was held by the Supreme Court that the war began in all the insurrectionary States, except Virginia and North Caro- lina, on April 19, 1861, the date of the first "proclamation of intended blockade," and in those two excepted States on April 27th, LS61, the date of the second such prfK-laiuation; further that the war ended, in ail the States except Texas on April 2d, 186(), the date of the proclamation declaring the war at an end as to all the other States, and in Tt-xas on August 20th, 18()6, the date of the proclamation declaring the war at an end in that State and generally. And see Aclger r. Alston, 15 Wallace, 5.55, and P.urke r. Miltenberger, 19 (V/. 519, in which the ruling in The Protector is affirmed by the same court; also United States v. Anderson, supra. WITNESS. 695 WAR POWER. 2459. The war power of the United States is vested in Congress by Art. I, Sec. 8, pars. 11, 12, 13, 1-1, 15 and 16, of the Constitution. The President, as Executive and Commander-in-chief of the Army and Navy, becomes authorized, in time of war, to execute this power under the pubhc acts of Congress initiating and defining the same. An official of a State can no more lawfully exercise an}^ part of such function than can an individual citizen.^ Thus, where, during the civil war, the governor of a State of his own authority caused to be arrested and confined at hard labor in a chain-gang certain inhab- itants of the State suspected of sympathizing with and giving aid to the public enemy — announcing that they would be so confined until certain civilians and militar}' officers, who were residents of such State and had been seized b}' the eneni}", should be released; hdd,, that such proceeding was a transcending of the police power of the State and an assumption of an exercise of the war potvei' belonging exclusiveh' to the government of the United States, and was therefore unauthorized and illegal. II, oil, June^ 1863. And similarly held, that the seizing and holding by a governor of a State, of certain persons as "hostages," in reprisal for citizens of that State captured b}- the enemy, was an exercise of the war-making power belonging to the general govern- ment and could not be recognized as legal by the Secretary of War. Ill, 258, July, 1863. WITNESS. 2460. The rules governing the competency of witnesses before the criminal courts of the United States and the States are, where apposite, generally (though not always necessarily) followed in the practice of courts martial. XXIX, 480, Decentber, 1869; XXX, 672, October, 1870: XLII, 74, Btcember, 1878. 2461. It was heretofore an established rule that accused parties could not legalh' testify as witnesses before military courts." XXIX, 480, December, 1869, 565, January, 1870; XXXVII, 624, June, 1876. ^ While "war can alone be entered into by national authority," so "no hostil- ities of any kind (except in necessarj' self-defence) can lawfully be practised by one individual of a nation a«;ainHt an individual of any other nation at enmity with it, but in virtue of some public authority." Talbot r. Janson, 3 Dallas, 160. ■''See (_4. C. M. O. 3, Hdqrs. of Army, 1870, in which is incorporated an opinion of the Judge- Advocate General on this subject. But, now, by the act of March 16, 1878, c. 37, it is has been expressly provided that at trials, not only l)efore the courts of the United States but before 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 request shall not create any presumption against him." BtU parties testifying under this act have no exceptional status or privileges; they must take the stand and he sul)ject to cross examination like other witnesses. The 8ul>mission by the accused of a sworn written statement is not a legitimate exercise of the authority to testify conferred by the statute, and such a statement should not be admitted In evidence by the court. See the General Orders cited in note 2 to § 1300, anie. 696 WITNESS. 2462. It has been uniformly Iield that the wife of a person on trial before a court martial could not properly be admitted as a witness for or against him;' and the statute authorizing accused parties to testify does not ati'ect this rule. XXX, 67i^, Octoher, 1870; XLVII, 521, September^ 18S4-. Where a court martial refused to admit in evidence (as being incompetent) the testimony of the wife of the prosecuting witness, /idd that its action was entirel}^ erroneous, no legal objection existing to the competency of such a person. XLIII, 106, Dece7nher, 1870. 2463. The president or anj' member of a court martial, as also the judge-advocate, may legally give testimonj^ before the court. That the court, at the time of a member's testif3'ing, is composed of but five members will not ati'ect the validity of the proceedings, since in so testi- fying he does not cease to be a member. It is in general, however, most undesirable that the judge-advocate, and still more that a mem- ber, should appear in the capacity of a witness, except perhaps where the evidence to be given relates simph^ to the good character or record of the accused. II, 584, Jime, 1863; VII, 202, Fehriiary, 186^; XI, 299, Decemher, 1861^.; XLII, •472, January.! 1880. 2464. It is no objection to the competency of a witness that he is the officer upon whom will devolve the duty of reviewing authority when the proceedings are terminated. XXXIX, 518, Aprils 1878. 2465. It is no objection to the competenc}^ of a witness that his name is not on the list of witnesses appended to the charges when served. The prosecution is not ol)liged to furnish any list of witnesses, but it is the better practice to do so," XXV, 350, February., 1868. 2466. A person who is insane at the time is incompetent as a witness. An ol)jection, however, to a witness on account of alleged insanity will not properlj^ be allowed, unless sustained by clear proof, a man being alwa3"S presumed to be sane till proven to l)e otherwise. XXXIII, 91, June, 1872. 2467. Except where their testimon}" will be merel}" cumulative, and will clearly add nothing whatever to the strength of the defence (see § 275, ante)., the accused is in general entitled to have anj^ and all material witnesses summoned to testify in his behalf.^ A prompt obedience to a summons is incumbent upon all witnesses, nor is a com- ^ Nor will the testimony of the wife of an accused be admissible in favor of or against a jmrty jointly charjxed with liini, where her testimony will be material to the merits of the ciuestion of the guilt or innocence of her husband. See Territory V. Paul, 2 Montana, WW. ^ When the list h furnished, the prosecution is not obliged to confine itself io the witnesses specified. The fai't that material testimony is given by an unexpected witness may however constitute ground for an application by the accused (under Art. 93) for further time for the pre])aration of his defence. ^See G. C. M. O. 21, 24, War Dept. 1872; do. 12 of Avitnesses before military courts. Neither a connuand- ing oIKcer nor a judge-advocate is authorized to employ a civil ofHcial or any civilian for such service or to commit the United States to the payment of any compensation to such a person. But in a case Avherc the omployuKMit of a civilian for such purpose had been resorted to, and it clearly appeared that, to employ him, was the most economical as well as effectual course open to the officer, advi.srd that his reasona- ble compensation be paid out of tlu^, a})[)ropriation for contingencies of the army. 32, 365, May, 1889; 51, -toT, January, 1892; Cards 428, Octoh<-,\' 1891^; 5549, Deceinl)er, 1898. 2472. A witness who has given his testimony should in general be allowed to modify the same where he desires to do so in a material particular. But Avhere the court has refused to permit a witness to correct his statement as recorded, such refusal need not induce a dis- approval of the proceedings unless it appear that the I'ights of the accused have thus been prejudiced. VII, 451, March, 18GJ^,. 2473. A witness can have no authority to discharge or relieve him- self from attendance on the ground that the testimon}' desired of him is innnaterial, 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 examination till duly informed b\' the court or judge-advocate that his attendance is no longer required in the case. XXXIX, 354, December, 1877. 2474. The privilege, recognized by the common law, of a witness to refuse to respond to a question, the answer to which may criminate him, is 2i personal one, which the witness may exercise or waive as he may see tit. 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 ques- tion or direct the witness not to answer.^ Where however he is igno- rant of his right, the court may properly advise him of the same. XI, 220, Deceriiber, 186 Ji-. But where a militar}" 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 Avitness cannot properly further refuse to respond, and, if he does so, Avill render him- self liable to charges and trial under Art. 62.' XXXIV, 242, AjJril, 1873. ^Compare § 1308, ante, and note. ^See G. C. M. O. 23, War Dept., 1873; alw) Brown c. Walker, 161 U. S., 591. wiT]srESS. 699 2475. To entitle a witness to the paj'ment of fees, it is not absolutely essential that he should produce a formal summons or subpoena addressed to and complied with by him. or that he should have been formall}' simimoned in the case. It will in general be sufficient if he has duly attended in compliance 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 b}' the judge-advocate.^ But a party cannot entitle himself to witness fees by merely appearing in court on his own responsibility and not at the instance of either party. XXin. 196. August, 1866; Card 7890, AjjriL 1900. 2476. Where a party who had attended as a witness before a military court, claimed, in addition to the regular jyer diem compensation, to be indemnilied for the loss of time and injury to his business alleged to have been occasioned by reason of his being obliged to attend as such witness: held that such claim could not be allowed by the execu- tive branch of the Government; the loss and injury complained of being disadvantages to which citizens were liable to be subjected in the course of the discharge of their obligations to civil society, and for which the law has provided no remedy. XXII, :26-l:, July, 1866. 2477. Held that parties who appeared and testified before, and at the instance of. an officer charged with the preliminary investigation of a «ase. but were not required to attend at the subsequent trial, were not legally entitled to witness fees. XXI, 463, July, 1866. 2478. Ihe authority" to issue process to compel civilian witnesses to appear and testify, is vested, by Sec. 1202, Rev. Sts., in " every judge- advocate of a court martial."^ A judge-advocate of an inferior court (see S 1520, ante) would thus be empowered for the purpose equally with the judge-advocate of a general court. The present statute, how- ever (unlike the original), does not extend the authority to recorders of courts of inquiry. XXXI, 12, August, 1870; XXXIV. 178, March, 1873; XXXVII, 283, 316, January and Felruary, 1876; XLI, 464, M^vernher, 1878. 2479. To authorize a resort to an attachment there must have been a formal summons, duly issued and served upon the witness, and not complied with. XXXVI. 152, December., 1871^.. 2480. Held that the statute could not properly be construed as authorizing the issue of an attachment to compel a witness to attend 'A strict observance, however, of the Army Regulations would call for the issue of formal summonses or subperform, as much as tlie head of any other of the executive departments. This decision is sometimes referred to as sustaining the view that army regulations are not in any case binding on the authority that makes them, whereas all that was held is that the regulation in question was not intended to restrain the Secretary of "\\'ar. (See the case of Smith v. United States, 24 Ct. Cls., 209. ) ^Section 1059, Revised Statutes, vests the Court of Claims with jurisdiction to hear and determine claims founded upon any regulation of an executive department, which the court has construed as meaning any regulation within the lawful discre- tion of the head of an executive department. (20 Ct. Cls., 199.) See also act of ]\Iarcli 3, 1887, "to provide for the bringing of suits against the Government of the United States." CLASSIFICATION, ETC., OF ARMY REGULATIONS. 707 A long continued practice has been held equivalent to a specific regulation, ^ 1 United States v. Macdaniel, 7 Pet., 1; United States v. Webster, 28 Fed. Cases, 515; 3Comp. Dec, 316. See also Martin v. Mott, 12 W. 19, and United States v. Babcock, 24 Fed. Cases, 928. "A regulation is a rule. It may be written, and no reason is perceived why it may not exist in parol or by usage." (Decision First Comptroller, Vol. V., p. 311.) The "custom of war," that is to say, the custom of the service, is recognized by the 84th Article of War as being a part of the law military. But usage can not be relied on in justification of an act forbidden by express law. (Walker r. The Transportation Company, 3 Wall., 150; Clark's Browne on Usages and Customs, p. 27, note; 27 Am. and Eng. Enc. of Law, 798. ) A noticeable instance of the disregard of this principle is to be found in a work on "The Military Law of England," published in London in 1810, in which, after stating the law relating to duelling, as contained in the Articles of War, it is said that "there are cases in which, notwithstanding the explicit declarations of the written law, the custom of the service would seem to demand a reference to arms," and, accordingly, "General Rules and Instructions for Seconds in Duels" are given. "A usage or custom, at military law, must consist of a fixed and uniform practice of long standing, which is not in conflict with existing statute law or regulation. A custom of the service can not be established by proof of isolated or occasional instances, but must be built up out of a series of precedents. It must also be a usage of the Army, or of some separate and distinct brand) of the military establishment. Moreover, no illegal or unauthorized practice, however frequent or long continued, can make a usage." (Winthrop's Abridgment of Military Law, p. 14. ) In connection with the above classification of Army regulations, see the decision of the Court of Claims in Maj. William Smith's Case (23 Ct. Cls., 452), in which the court said: "The Constitution provides, in Article I, section 8, paragraph 14, that Congress shall have power ' to make rules for the government and regulation of the land and naval forces. ' "It has been argued here and elsewhere that this provision deprives the President of authority to make such rules of his own motion, or even when previously author- ized by legislative action, on the ground that the power is exclusive in Congress and can not be delegated; and so that all rules for the government and regulation of the land and naval forces made by the Executive are void and of no effect without the enactment by Congress in the form of approval or otherwise. " Congress has established rules and articles for the government of the armies of the United States, commonlv called 'Articles of War' (act of April 10, 1806, chapter 20, 2 Stat. L., 359, now Rev.'Stat., sec. 1342). "For the making of other and ordinary regulations Congress has from an early day proceeded upon the idea that the jiower might be delegated to the President, and has passed several acts expressly conferring such authority (act of March 3, 1813, chapter 52, section 5 (2 Stat. L., 819) ; act of April 24, 1816, chapter 69, section 9 (3 Stat. L., 298); act July 15, 1870, chapter 294, section 20 (16 Stat. L., 319); act of March 1, 1875, chapter 115 (1 Sup. Rev. Stat., 149), and the act of June 23, 1879, chapter 35, section 2 (1 Sup. Rev. Stat., 494), under which the edition of 1881 was published) . "Congress has three times recognized or approved existing regulations: "1. The act of April 24, 1816, chapter 69, section 9 (3 Stat. L., 298), provided that 'the regulations in force before the reduction of the Army be recognized, as far as the same shall be found applicable to the service, subject, however, to such alterations as the Secretary of War may adopt, with the approbation of the President.' "2. The act of March 2, 1821, chapter 13, section 14 (3 Stat. L., 616) , enacted 'that the system of "general regulations for the Army" compiled by Major-General Scott shall be, and the same is tiereby, approved and adopted for the government of the Army of the United States and of the militia, when in the service of the United States.' This section was unconditionally repealed by the act of May 7, 1822, chap- ter 88 (3 Stat. L., 686). As to this act Attorney General Wirt advised that, notwith- standing such repeal, the regulations having received the sanction of the President, continued in force by the authority of the President in all cases where they did not conflict with ])ositive legislation. (1 Opin., 549.) "3. The act of July 28, 1866, chapter 299, section 37 (14 Stat. L., 337, 338), 708 CLASSIFICATION, ETC., OF ARMY REGULATIONS. As to the subject-matter of regulations for the government of the Army, no distinct line can be drawn separating the President's consti- required the Secretary of War to prepare a code of regulations for the government of the Army, and enacted 'the existing regulations to remain in force until Congress shall have acted on said report.' No such action has been taken. "It is well settled that Army regulations when directly approved by Congress have the absolute force of law equally with other legislative acts until repealed by the same power. Congress so treated them when it passed the act of June 8, 1872, chap- ter 348 (17 Stat. L., 337), j^roviding that the fifth section of the act of May 8, 1872 {17 Stat. L., 83), should not be held to repeal that part of paragraph 1030 of the Revised Army Regulations of 1863 with which it appeared to be in conflict, thus recognizing the regulations approved by Congress in that year as having the same force as Congressional enactments. "On the other hand, it is just as well settled that regulations not so approved have the force of law only when founded on the President's constitutional powers as com- mander-in-chief of the Army, or are 'consistent with and supplementary to thestat- utes which have been enacted by Congress in reference to theArmv.' (Symond's Case, 120 U.S., 46, afiirming 21 Ct. Cls., 151; Reed's Case, 100 U.S., 22; Smiths. Whitnev, 116 uL, 180; United States v. Whitney, 120 id, 47; Wavman v. Southard, 10 Wheat, 43; United States v. Eliason, 16 Pet., 291; United States v. Freeman, 3 How., 556; Kurtz v. Moflitt, 115 U.S., 503; United States v. Webster, 2 Ware, 66; United States r. Maurice, 2 Brock, 103; Ferren's Case, 3 Benedict, 447; Gates i'. Fletcher, 1 Minn., 204; 1 Opin. Atty. Gen., 469, 547; 2 id., 225; 3 id., 85; 6 id., 10, 215, 365; W id., 415; 16 id., 38.) ^ "Whether a regulation, the validity of which is drawn in question, is within the constitutional power of the President to promulgate, or whether it has been approved by Congress, or whether it 'is consistent with and supplementary to the statutes,' are judicial questions not always free from difficulties of determination. "In the light of these views and the adjudicated cases we shall examine the exist- ing regulations. "The present regulations are contained in the edition of 1881, published under authority of the act of March 1, 1875, chapter 115(1 Sup. Rev. Stat., 149), which directs the President 'to make and publish regulations for the government of the Army in accordance with existing laws,' and under the act of June 23, 1879, chapter 35, sec- tion 2 (1 Sup. Rev. Stat., 494), which further directs the President to 'cause all the regulations of the Army and general orders now in force to be codified and published to the Ariny,' and provides for the expenses of the work. "As promulgated in this edition they contain orders and regulations of four differ- ent classes intermingled. At the end of each the earlier authority for it is specified by a note in brackets. "1. (Tcneral orders which he (the President) has a right to issue under his con- stitutional prerogative of 'commander-in-chief of the Army and Navy of the United States.' (Constitution, Art. II, sec. 2, par. 1.) "2. Departmental regulations, under section 161, Revised Statutes, authorizing the head of each department to ' prescribe regulations, not inconsistent with law, for the government of his department, the conduct of officers and clerks, the distribution and performance of its business, and the custody, use, and preservation of its records, papers, and property appertaining thereto.' "3. Regulations not approved by Congress, but made by the President in the exercise of legislative authority conferred by the acts above cited. "4. Regulations expressly approved by Congress." The executive regulations of the British military administration consist, princi- pally, of the Rules of Procedure, the Queen's Regulations, Royal Warrants, and Orders in Council. The Rules of Procedure are authorized by the Army Act, and prescribe the regulations for the formation of military courts, the trial of offenders, and the execution of sentences; the Queen's Regulations relate to the interior economy of corps, the maintenance of discipline, and the powers and duties of commanding officers, and sup])lement the Army Act as to offences against enlistment and the dis- posal of ](rised by the President, l)ut the fact that Congress has made a regulation partly covering the'subject does not take away from the President his power to make a reg- ulation relating to the part not covered." ^ Winthrop's Military Law, p. 20, note. " If it is difficult," says Judge Cooley, "to point out the precise boundary which separates legislative from judicial duties, it is still more difficult to discriminate, in particular cases, between what is properly legislative and what is properly executive duty. The authority that makes the laws has large discretion in determining the means through which they shall l)e executed; and the i>erformance of many duties which they may i)rovide for by law they may refer either to the chief executive of the State, or, at their option, to any other executive or ministerial officer, or even to a i)erson spe- cially named for the duty. What can be definitely said on this sul)ject is this: That such powers as are specially conferred by the constitution upon the governor, or ui)on any other specified officer, the legislature cannot requireor authorize to be performed by any other officer or authority; and from those duties which the constitution requires of him he can not be excused by law. But other i)owers or duties tlie executive can not exercise or assume except by legislative authority, and the power which in its discretion it confers it may also in its discretion withhold, or confide to other hands. Whether in those cases where power is given by the c(mstitution to the governor, the legislature iuive the same authority 1o make rules for the exercise of the power that they have to make rules to govern the proceedings in the courts, may perhajjs be a (luestion. It would seem that this must dejjend generally upon the nature of the power, and upon the question whether the constitution, in confer- ring it, has furnished a sufficient rule for its exercise. Where comi)lete power to pardon is conferred upon the executive, it may be doubted if the legislature can impose restrictions under tlie namr of rules or regulations; but where the governor is made commander in chief of the military forces of the State, it is ol)vious that his authority must t)e exercised under such proper rules as the legislature may prescril)c, because the military forces are themselves under the control of the legislature, and military law is prescribed by that department. There would be this clear limitation CLASSIFICATION, ETC., OF ARMY REGULATIONS. 711 So. also, as between the legislative and judicial powers, Congress may regulate the procedure of the Federal courts, but in so far as it does not do it the courts may prescribe their own regulations. And this is in fact the existing condition. Congress has exercised the power in part, leaving it to the courts to regulate what it has not pro- vided for. Courts can not exercise their jurisdiction without rules of procedure, and necessarily have the original power of adopting their own when the legislatur(> does not prescribe them; just as the Presi- dent can not exercise his power as commander-in-chief without the power to make orders for the regulation of the Army. In f;ict, each branch of the Government — the legislative, executive, and judicial — has the original power of making regulations for the transaction of its business — most manifest!}^ so when the business is of direct constitu- tional origin — but the legislative has sometimes a jurisdiction over the regulations of the other branches, and when this happens its jurisdic- tion is superior.^ In speaking of the power of Congress over the administration of the affairs of the Army, it is, of course, not intended to include what would properly come under the head of the direction of military movements.^ This belongs to command, and neither the power of Congress to raise and support armies, nor the power to make rules for the government and regulation of the land and naval forces, nor the power to declare war, gives it the command of the Army. Here the constitutional power of the President as commander-in-chief is exclusive. When Congress fails to make regulations with reference to a matter of military administration, ])ut either expressly or silently leaves it to the President to do it, it does not delegate its own legislative power to him, because that would be unconstitutional,'^ but expressly or silently upon the power of the legislature to prescribe rules for the executive department; that they must not be such as, under pretense of regulation, divest the executive of, or preclude his exercising, any of his constitutional prerogatives or powers. Those matters which the constitution specifically confides to him the legislature can not directly or indirectly take from his control," (Coolev's Constitutional Limitations, p. 138.) ' Under the Constitution, each house of Congress determines its own rules of proceedings. -Flemings. Page, 9 How., 615. ^In McCall's Case (2 Philad., 269), the court said: "Of course Congress can not constitutionally delegate to the President legislative powers; but it may, in confer- ring powers constitutionally exercisable by him, prescribe, or omit prescribing, spe- cial rules of their administration, or may specially authorize him to make the rules. When Congress neitlier prescribes them, nor expressly authorizes him to make them, he has the authority, inherent in the powers conferred, of making regula- tions necessarily incidental to their exercise, and of choosing between legitimate alternative modes of their exercise. Whether his authority extends further, and enables him, without express authority from Congress, to make regulations which, though incidental, are not necessarily so, is a different question. When, however, Congress, in conferring a power which it may constitutionally vest in him, not only omits to presci-ibe regulations of its exercise, but, as in the present case, expressly 712 CLASSIFICATION, ETC., OF ARMY REGULATIONS, gives him the opportunity to call his executive power into play. It is perhaps not easy to explain why, if regulations may, under the Con- stitution, be made both by the legislative and executive branches, one should have precedence over the other; but it is to be noticed that the powder of Congress is the express one "to make rules for the govern- ment and regulation of the land and naval forces," whereas the power of the President is a construction of his position as executive and commander-in-chief. The legislative power, by the words quoted, covers the whole field of military administration, l)ut it is not always certain how far the executive power mav go. It is not as well defined as the legislative power, but it is undoul)tedh' limited to so much of the subject as is not alreadv controlled by the latter.^ The jurisdic- tion of the excutive power is not, however, within this limit coexten- sive with that of the legislative power, because the legislative branch of the Government has a constitutional field of operation peculiar to itself, and 3^et there are arm}' regulations which seem to be of a legis- lative character. It is because of this that difiicidty sometimes occurs — a difficulty which has in the past quite often taken the form of a dif- ference of views Vjetween the War Department and the accounting ofiicers of the Treasury. authorizes him to make them, he may, within the limits of, and consistently with, the legislative power declared, make any such regulations incidental, though not' necessarily so, to the power conferred, as Congress might have specially prescribed." "When statutes confer powers, impose duties, and provide for the accomplish- ment of various oljjecty, they are necessarily couched in general terms, but they carry with them, bj' implication, all the powers, duties, and exemptions necessary to accomplish the objects thereby sought to be attained." {In re Neagle, 39 Fed. Rep., 834.) "The difference between the departments undoubtedly is that the legislature makes, the executive executes, and the judiciary construes the law; but the maker of the law may commit something to the discretion of the other departments, and the precise boundary of this j^ower is a suljject of delicate and difhcult inquiry, into which a court will not enter unnecessarilv." ( Wayman v. .Southard, 10 W., 46, Marshall, C.J.) 'See opinion of Attorney General Wirt, 1 Oi)in., 549; of Attorney General Ber- rien, 2 Opin., 225, and of Attorney General Cushing, 6 Opin., 10, 15. "The authority of the Secretary to issue orders, regulations, and instructions, with the ajiproval of the President, in reference to matters connected with the naval estaltlisliment, is subject to the condition, necessarily implied, that they must be consistent with the statutes which have been enacted by Congress in reference to the Navy. He may, with the approval of the President, establish regulations in execution of, or supple- mentary to, ))ut not in conflict with, the statutes defining his powers or (conferring rights u])on others. The contrary has never been held ))y this court. What we now say is entirely consistent witli Gratiot r. United States, 4 How., SO, and Ex parte Reed, 100 U. S., 13, upon which the Government relies. Referring in the flrst case to certain army regulations, and in the other to certain navy regulations, which had been approved by Congress, the court observed that they had the force of law. See also Smith v. Whitney, 116 U. S., 181. In neither case, however, was it held that such regulations, when in conflict with the acts of Congress, could be upheld." (United States v. Symonds, 120 U. S., 46-49.) And see Wiuthrop's Military Law, pp. 29, 30, and note; and § 494, i>. 140, ante. EXECUTIVE REaULATIONS IN GENERAL. 7 13 CHAPTER II. EXECUTIVE REGULATIONS IN GENERAL. Before further considering tlie regulations relating to one branch — the military branch — of the public service, it will perhaps not be unin- structive briefly to examine the subject of executive orders and regu- lations in general.^ There is an important distinction which should be kept in mind in this connection, namely, the distinction between offices created b}' statute and those created b}- the Constitution. As to the former, the extent of their authority and the manner of its exercise are subject to the control of the legislative branch; but as to an office created by the Constitution, and whose general powers are named in it, and which is not by the Constitution made dependent on legislation for its jurisdiction, its authority can not, as to these constitutional powers, be thus controlled, except in so far as the legis- lative branch may refuse to vote the means or furnish the opportunity necessary for their exercise, or unless the Constitution itself vests the legislative branch with a superior authority as to some subject- matter over which both it and the executive or judicial ])ranch have jurisdiction. When Congress, b}- its exercise of the legisla- tive power, creates new subjects of political action, it may, for the execution of the laws relating to them, vest the President with new powers; Init where the President is vested with a distinct power b}' the Constitution, Congress can not control it otherwise than as indicated. - In the Neagle Case (39 Fed. Rep. 833) the United States circuit court ^ See article on ' ' Executive Regulations ' ' in the American Law Review, November- December, 1897. ^ "The theory of the Constitution undoubtedly is, that the great powers of the Government are divided into separate departments; and so far as these powers are derived from the Constitution, the departments may be regarded as independent of each other. But beyond that all are subject to regulations by law, touching the dis- charge of the duties required to be performed. "The executive power is vested in a President; and as far as his powers are derived from the Constitution, he is beyond the reach of any other dei)artment, except in the mode prescribed by the Constitution through the impeaching power. But it by no means follows, that every officer in every branch of that department is imder the exclusive direction of the President. Such a principle, we apprehend, is not, and certainly can not be claimed by the President. "There are certain ixjlitical duties imposed upon many officers in the executive department, the tlischarge of which is under the direction of the President. But it would be an alarming doctrine, that Congress can not impose upon any executive officer any duty they may think prc^per, which is not repugnant to any rights secured and protected ])y the Constitution; and in such cases, the duty and respon- sibility grow out of and are subject to the control of the law, and not to the direction of the President. And this is emphatically the case, where the duty enjoined is of a mere ministerial character." (Kendall v. United States, 12 Pet., 610.) 714 EXECUTIVE REGULATIONS IN GENERAL. yaid: "The power and duty imposed on the President to 'take care that the hiws are faithfull}" executed,' necessarily carries with it all power and authority necessarj^ to accomplish the object sought to be attained."" And on the appeal of this case the Supreme Court (135 U. S., 63) said : ''The Constitution, section 3, Article II, declares that the President "shall take care that the laws be faithfully executed,' and he is provided with the means of fulfilling- this, obligation by his authority to commission all the officers of the United States, and, by and with the advice and consent of the Senate, to appoint the most important of them and to fill vacancies. He is declared to be com- mander-in-chief of the army and navy of the United States. The duties which are thus imposed upon him he is further enabled to per- form by the recognition in the Constitution, and the creation by acts of Congress, of executive departments, which have varied in number from four or five to seven or eight, the heads of which are familiarly called cabinet ministers. These aid him in the performance of the great duties of his office, and represent him in a thousand acts to which it can hardly be supposed his personal attention is called, and thus he is enaliled to fulfill the dutv of his great department, expressed in the phrase that 'he shall take care that the laws be faithfully executed.' "Is this duty limited to the enforcement of acts of Congress or of treaties of the United States according to their exjrress terms, or does it include the rights, duties, and obligations growing out of the Con- stitution itself, our international relations, and all the protection implied by the nature of the Government under the Constitution?" And the court, Mr. Justice Miller delivering the opinion, then give a number of examples of proper occasions for the exercise of this executive power, and conclude that, while there is no express statute authorizing the appointment of a deputy marshal, or any other officer to attend a judge of the Supreme Court when traveling in his circuit, ' and to protect him against assaults or other injury, the general obliga- tion imposed upon the President of the United States by the Constitu- tion to take care that the laws are faithfully executed, and the means placed in his hands, both by the Constitution and the laws of the United States, to enable him to do this, impose upon the executive department the duty of protecting a justice or judge of any of the courts of the United States, when there is just reason to believe that he will be in personal danger while executing the duties of his office. In Wilcox V. Jackson (13 Pet., -198), the Supreme Court held that the President could legally set aside public lands for a military post or Indian agency, in the execution of laws authorizing him to (\st.ib- lish them at such places as he might deem best, but not expressly EXECUTIVE REGULATIONS IN GENERAL. 715 authorizing him to reserve public lands. And in Grisar v. McDowell (6 Wall., 381), the same court call attention to the fact that from an early period in the history of the Government it had been the practice of the President to order, from time to time, as the exigencies of the public service required, parcels of land belonging to the United States to be reserved from sale and set apart for public uses, his authority in this respect being recognized in numerous acts of Congress. Thus, in the Preemption Act of May 29, 1830, it was provided that the right of preemption contemplated bj' the act should not ""extend to an}^ land which is reserved from sale by act of Congress, or 7/i/ order of the President^ or which maj^ have been appropriated for any purpose whatever," Again, in the Preemption Act of September 14, 1841, "lands included in any reservation by any treat}^ law, or proclama- tion of the President, or reserved for salines or other purpose," were exempted from entry. So b}^ an act of March 3, 1853, it was declared that all public lands in California should be subject to preemption, and offered at public sale, with the exception, among others, "of lands reserved hy com j)etent authority,'''' unii the court say that b}' "compe- tent authority" was meant the authority of the President and officers acting under his direction. As to the reservations then in question the court say that they were indirectly approved by the legislation of Congress in appropriating moneys for the construction of fortifica- tions and other public works upon them. And in the case of Swaim V. United States,^ it has been finally settled that the President, as commander-in-chief, has the constitutional power to convene courts- martial — a striking illustration of an undefined constitutional power, for it is nothing less than the power to constitute tribunals with judi- cial jurisdiction extending even to trials for capital offences. The President, said Mr. Gushing, "is limited in the exercise of his powers b}" the Constitution and the laws; but it does not follow that he must show a statutable provision for everything he does. The Gov- ernment could not be administered upon such a contracted principle. The great outlines of the movements of the Executive may be marked out, and limitations imposed upon the exercise of his powers, yet there are numberless things which must be done, which can not be antici- pated and defined, and are essential to useful and healthy action of government.^" '165 U. S., 553. 2 6 Opin. Atty. Gen., 365. See, also, id., 10; 8 id., 343; 10 id., 413. In United States v. Maedaniel (7 Pet., 14), the Supreme Court said: "A practical knowledge of the action of any one of the great departments of the Government, mu'-t convince every person tliat the head of a department, in the distrilnition of its duties and responsibilities, is often cf)mpelled to exercise his discretion. He is limited in the exercise of his powers by the law; but it does not follow that he must show a statutory provision for every thing he does. No government could be administered 716 EXECUTIVE REGULATIONS IN GENERAL. It is well established that •'the Seeretarv of War is the retJ-ular con- stitutional organ of the President for the administration of the military establishment of the nation; and rules and orders publicly promulged through him must be received as the acts of the Executive, and as such, be binding upon all within the sphere of his legal and constitu- tional authority."^ So that if section 101 of the Revised Statutes, above mentioned, can be said to have anv reference to the administration of military- affairs, it would seem to be to this extent unnecessary, the President already having the constitutional authority to prescribe regulations for this purpose through the Secretary of War.~ An act of Congress, pro- fessedly conferring on the President the power to do an act which he already may do by virtue of his constitutional authority', is no more than a declaration of the existing power. But the Secretary of War does not hold an office created and defined by the Constitution. His office is a statutory one, and its authority is subject to the control of Con- gress, except in so far as his acts are acts of the President, in the exer- cise of a constitutional function, in a matter over which Congress has not a superior constitutional power. Therefore, section 161 of the Revised Statutes ma}' be regarded as conferring the authority described directly on him as one of the heads of departments referred to, and this is not to be regarded as a delegation of legislative power; a distinction, although not a well-defined one, existing between those important sub- on such principles. To attempt to regulate, by law, the minute movements of every part of the complicated machinery of government would evince a most unpardonable ignorance on the subject. "Whilst the great outlines of its movements may lie marked out, and limitations imposed on the exercise of its powers, there are numl^erless things which must be done, that can neither Ije anticipated nor defined, and which are essential to the proper acti(jn of the Government. Hence, of necessity, usages have been established in every department of the Government, which have become a kind of common law, and regulate the rights and duties of those who act within their respective limits. And no change of such usages can have a retrospective effect, but nmst be limited to the future." In Caha v. United States (152 U. S., 211), the Supreme Court, through Justice Brewer, said: "The rules and regulations prescribed by the Interior Department in respect to contests before the Land Office were not formally offered in evidence, and it is claimed that this omissiou is fatal, and that a verdict should have been instructed for the defendant. But we are of opinion that there was no necessity for a formal introduction in evidence of such rules and regulations. They are matters of which courts of the United States take judicial notice. Questions of a kindred nature have been freciuently presented, and it may be laid down as a general rule, deducible from the cases, that wherever, by the express language of any act of Congress, power is intrusted to either of the principal dei:>artmentsof Government to prescribe rules and regulations fi»r the transaction of l)usiness in which the public is interested, and in respect to which they have a right to {)artici])ate, and by which they are to be con- trolled, the luU's and regulations iiri'.-^cribcd in jiursnance of such authority become a mass of that body of public records of w liich the courts take judicial notice." 1 United States v. Eliason, 16 Pet., 302; United States v. Fletcher, 148 U. S., 84; Opinion of Attorney General Cushing, 7 Opins., 453. The latter is an especially full and interesting discussion of this point. See, also, § 2294, p. 644, ante, and notes. =»6 Dec. First Comptroller, 13. EXECUTIVE REGULATIONS IK GENERAL. 7l7 jects which must be entirely regulated b}^ Congress and those of less interest, in reference to which a general provision is made and power is given to those who may act under it to fill up the details as incidental to its execution. This matter is fully discussed in Griner's case, 16 Wis., 447.^ But the regulations which the Secretary of War is thus empowered to make are purelj'^ departmental regulations for the trans- action of the departmental business of the War Department. They are not Army regulations proper. Regulations made pursuant to, or in execution of, statutes are very common. (See title ''Regulations,'' in the index of the Revised Stat- utes; and see the opinion of Mr. J. M. Dickinson, Acting Attorney Gen- eral, dated October 24, 1896, 21 Opins., 431.) In the case of the United States v. Breen ^ the constitutionalit}- of such regulations, made pursuant to legislation declaring any violation of them a misdemeanor and punishable by fine and imprisonment, was fully recognized. In that case Mr. Justice Lamar said: ''The only ground relied upon in behalf of the defendant is, that the authoritj^ conferred by the act of Congress on the Secretarj- of War to make and promulgate said rules and regulations is legislative, and can not, under the Constitution of the United States, be, by act of Congress, conferred upon the Secretary of War or anyone else, so as to make a violation thereof a crime against the United States. Whether this is so or not is the only question to be determined. "If the law empowered the Secretary of War, by rule or regulation, to make a certain act criminal, and punishable as such, then this prose- cution would not be maintainable; but it is not the rule and regulation which declares the violation thereof a crime, and punishable. All that the Secretary is authorized to do is to make the rule and regula- tion. It is the act of Congress which declares that the unlawful and willful violation of such rule and regulation, after it is promulgated, shall be held a misdemeanor by the person violating the same, and that such person shall be sentenced to pay a fine not exceeding |500, and shall suffer imprisonment not exceeding six months as a penalty therefor. Numerous acts of Congress have been passed authorizing the Postmaster General, and other members of the executive depart- ment, to make rules and regulations for the business pertaining to their respective departments, and declaring that, when made and pro- mulgated, a willful and unlawful violation of them should be held a crime against the United States, and the violators punished as pre- scribed in the act. The Supreme Court of the United States is authorized by act of Congress to adopt certain rules for the govern- ^ See, also, United States v. Webster, 2 Ware, 46 (Fed. Cases, 16,658). MO Fed. Rep., 402. 7l8 EXECUTIVE REGULATIONS IN GENERAL. iiicnt of the inferior courts, which, when niude, have the force and ettect of law as much as if such rules were directly enacted b}' Con- gress, and approved l)v the President. The same effect is to be given to the rule and regulation made b}- the Secretary in this case. The act of Congress denounces the violation of it as a crime, and prescribes the penalty. The criminalit}' of the violation of the rule, and the lial)ilit3' of the offender to indictment and to punishment upon trial and conviction, result directh" and exclusively from the legislation of Cong-ress. " ^ ^ In Woods V. Gary, Mr. Justice Cox of the Supreme Court of the District of C()hiuil)ia, said: " If an act of Congress, presumed to be approved by the President, vests in the judges or heads of departments authority to appoint subordinate officers, then, by constitutional authority, the power to appoint them is taken away from the President; and it follows, according to this case, that the power of removal would be equally taken away. The President might dismiss the head of a department who would refuse at his request to dismiss a subordinate or inferior officer, but would have no power directly to dismiss such officer himself. "It may be regarded, then, as the settled law that the power of removal is incident to the powder of appointment, and, therefore, that any law which confers upon the head of a department a power of appointinent, ipso facto, conveys a power of removal, as effectually as if that power were expressly given by the statute. The power of removal is nitrenched in the law. It is created by an act of legislation, and it can only be taken away or modified by similar authority. The acts of Congress, therefore, authorizing the appointment of complainant as inspector of mails, of them- selves gave the Postmaster General authority to remove him at pleasure, unless that or some other act of Congress has imposed some limitation, condition, or restriction upon that power. "And this brings us to the inquiry whether and how far, if at all, the act of January 16, 1883, commonly known as the Civil Service Act, affects the power of removal at pleasure which the Postmaster General would possess under his general authority to appoint this class of officers. It does, indeed, very materially modify the pov.-er of appointment theretofore existing, but it does not purport to affect the power of removal, except in a single particular. "In section 13 it provides that: 'No officer or employee of the United States men- tioned in this act shall discharge or promote or degrade, or in any manner change the official rank or compensation of any other officer or employee, or promise or threaten to do so, for giving or withholding or neglecting to make any contribution of money or other valuable thing for any political purpose.' "Substantially the same is directed to be provided by rules, to be established by the Commission and the President, in clause 3 of the second section. In no other single respect is the power of removal affected by any substantive and direct enact- ment of this law. "But it is claimed that the Commission is empowered to prepare rules in aid of the President for carrying this act into effect, and that said rules, when prepared ami promulgated, have the force and effect of law, and that such effect is to be given to the rules under which the complainant seeks relief. "There can be no doul)t as to the power of Congress or any other legislative body to delegate to subordinate authorities the power to make rules and regulations within certain limits, which, when made, will have the force of law. Thus, corjMirations, municijial or private, may be authorized to make by-laws, and police commissioners, boards of health, and fire commissioners may be authorized to make regulations which have the effect of laws. "But if any rule prepared by this Connnission, whether published by the President or not, should have the effect of repealing or modifying an act of Congress, it would be an act of legislation, and not a regulation of a mere executive character, which it was clearly the oI)iect of this law to authorize. It is a grave question whether Con- gress could delegate to the President, or to any board of commissioners, jointh with the President, the authority to do any act which is equivalent to legislation. "I am not aware that the Supreme Court has made any delivery upon this ques- EXECUTIVE REGULATIONS IN GENERAL. 7 19 But it is not necessaiy to give further examples of regulations made tion, but there is a uniform current of authorities in the State courts against the power of any legislature so to delegate their authority. See the authorities collected in the American and English Encyclopedia of Law, volume ?>, page 698, under the proposition: "' It is an established proposition of constitutional law that the power conferred upon the legislature to enact laws cannot be delegated by that department to any other body or authority.' "One illustration was the case of a statute of Minnesota which left it to certain judges to decide whether a law should l)e submitted to the peojile (State r. Young, 29 Minn., 474), and another was a law which conferred upon the district court the power to incorporate towns (People v. Nevada, 6 Cal., 143; State v. Simons, 32 Minn., 540) ; both of which forms of legislation were held unconstitutional. "But probably all courts would agree that no law is to he construed so as to amount to ■' o.sf, p. 748, note.) Thus, corpora- tions possess the power of making- reg'ulations, including by-laws. Social clulis have the power, and their regulations are recognized by the courts as binding." We here speak of by-laws as regulations. In one sense a distinction has been made between them in the law of cor- porations, the b3"-law being held to be more usually established for the government of the internal affairs of the corporation, while the regu- lation is regarded as intended for the government of its business with the public.'' But the word regulation is here used in a broader sense and as including the b3'-law. In the case of Yturbide -". The Metropolitan Club, the court of appeals of the District of Colum])ia said: "There is no longer any question of the right of a corporation, such as that of the respondent in this case, to make by-laws, even in the absence of express statutory power, and to exercise the power of amotion, as incident to the corporation. This has been regarded as the settled law since the case of Lord Bruce, 2 Strange, 819, and the sub- sequent exposition of the whole doctrine in the case of Rex r. Rich- ardson (1 Burr., 517, 581)), by Lord Mansfield, speaking for the Court of King's Bench in 1758. In this last mentioned case, after reviewing the foruier decisions and the previous doctrine upon the subject, and prescribed. For the principal of those enacted prior to 1886, reference may be had to the first edition of this work, page 18-19, note 3. Repeated instances also occur in the statutes where, though the word 'regulations' is not emj^loyed, the same meaning is conveyed by some equivalent term or expression; as by the term 'direc- tions,' 'instructions,' 'forms,' 'requirements,' 'restrictions,' 'conditions,' 'limita- tions,' 'by-laws.' Not unfrequently a thing is required by the statute to be done in such manner, etc., as a head of a department, etc., 'may prescribe.' The 'Regula- tions for the Government of the Revenue-Cutter Service of the United States,' issued by the Secretary of the Treasury, April 4, 1894, and resting on no authority more express than is found in the terms of sections 2758 and 2762, placing this corps (con- sisting of the officers and crews of thirty-six vessels) under the general direction of the Secretary, is a striking illustration of the discretion exercised by heads of depart- ments in making regulations as to matters of detail." (AVinthrop's Military Law and Precedents, j). 18.) "The line has not been exactly drawn which separates those important subjects, which must be entirely regulated l)y the legislature itself, from those of less interest, in which a general provision may be made, and power given to those who are to act under such general provisions to till uj) the details." (Ch. J. Marshall, in AVavman r. Southard, 10 AVh. 1, 43.) '"A regidation is merely a 'governing direction.' It implies autliority on one side — subjection on the other. * * * Jt is distinguished from njntrart, which implies the right of all ])arties to stipulate for terms. * * * A regulation is an order by authority." (Hon. AVilHam I.,a\vrence, 1 Dec. First Comp., 55.) ■^ Every public assembly has the power to make and enforce certain rules for the transaction of business and tiie preservation of order. (Jameson on Constitutional Conventions, p. 463.) Passenger-carriers may prescribe reasonable regulations for the control of passengers, and em})ioyers for their employees. ^Thomi)Son on Corporations, § 937. EXECUTIVE REGULATIONS IN GENERAL, 723 showing- that the older oases had niaintaincd a doctrine that had been modified l)y the more recent cases, the Lord Chief Justice said: 'We all think this modern opinion is right. It is necessary to the good order and government of corporate bodies, that there should l)e such a power (that of amotion), as much as the power to make bj'-laws. Lord Coke says (Bagg's Case, 11 Co. 9Sr/) 'there is a tacit condition annexcutive to make regulations. Therefore, regulations made by the Secre- tary of War, determining the aimumts of the dislmrsements of the appropriation Bhould, it is believed, be regarded as made in aid of a statute. Such parts of the regulation as relate to the ymrely admiinstrative machinery for the expi-nditure of the appropriation may, however, in my opinion, be distinguished from the (juasi legislative part prescribing the amounts of the disbursements. To the former I have EXECUTIVE KEGULATIONS IN GENERAL. 725 kind is that tixing- tlie fees of civilian witnesses before courts-martial, for, although in deference to the views of the Comptroller of the Treasuiy these fees have been made to conform to those of witnesses before the Federal courts, as regulated by the Revised Statutes, this regulation is none the less an exercise of the executi^'e power in carr}"- ing out an appropriation, and has no dependence on the statute with which it has been made to conform/ And another example of such a no doubt the Secretary of War can make exceptions; to the latter I am of opinion that he can not. Regulations of this kind should, for the purposes of such inquiry as is made in this case, be classed with those made pursuant to statute, as to which I am of opinion that they should be held to have become a part of the law, and to be of the same force as the statute itself, and that, although they may l)e changed by the authority making them, they are binding on such authority so long as they are not changed, and that he can not grant exceptions to them. [See page 704, section 2, ante.'\ " It is true that in cases like the present the regulation is not actually made pur- suant to statute. The statute does not itself expressly provide for the making of the regulation, but leaves it to be done Ijy the Executive in the exercise of the constitu- tional power vested in him as commander-in-chief ami Ijy the requirement that he shall 'take care that the laws be faithfully executed.' But the regulation is none the less in aid of the statute, in the relation which I have indicated — prescribing aa essential rule for the disl)ursements to be made under the statute, and not merely relating to the administrative means of applying the rule. "This seems to me to be the sound view to take of this matter. The action of the War Department has, however, not been consistent with reference to regulations of this class — possibly because the difference between them and purely administrative regulations, having no such intimate relation with statutes, has not been noticed. With reference to the regulations made pursuant to the act of Congress relating to the examination of enlisted men for promotion, it has been held that they can not be waived in individual cases, and, on the other hand, as I am informed, the regu- lation prescribing the per dieiii allowances of civilian emi^loyees when traveling under orders has been waived in individual cases. (I understand that the right to make this waiver has been recognized by the Comptroller of the Treasury, although in a decision of the Assistant Comptroller with reference to the transportation of officer's baggage the latter seems to recognize the distinction which I have made, for he admits the right of the Secretary of War to make an exception to a regulation prescribing the method of transporting an officer's baggage, while apparently not admitting his right to make an excei)tion increasing the money allowance for it in an individual case.) "The practice of the War Department does not therefore apjiear to be uniform, but, in my opinion, its action in the matter of the regulations made in aid of the statute relating to the promotion of enlisted men is based on the correct view of this question, and, applying what was held in that matter, to the i:)resent case, I am of opinion that the exception to a regulation, asked for, would be contrary to the true conception of the force of such regulations and therefore unauthorized." As to the President's power to make regulations prescribing allowances, see United States r. Webster, 28 Fed. Cases, 509; United States r. Ripley, 7 P., 18; 24 Ct. Cls., 209. ^The follow^ing is an extract from a report of the Acting Judge-Advocate General, dated February B, 189;^, when this subject was under discussion: "In the Army Appropriations Act an appropriation is each year made f(,)r the ' com- pensation of reporters and witnesses attending upon courts-martial and courts of inquiry.' No rate of compensation is prescribed, nor is it in terms indicated by whom the rate shall be fixed; but these appropriations have from year to year been madi' with the knowledge and in recognition of the fact that the law was being sup- }>lemeiited by regulations fixing the rates of compensation. This has been done for many years, and the propriety of such regulations has thus Ijeen distinctly recognized by Congress. "To me it seems to be entirely clear that the appropriation was intended to be expended under rules ]irescribed by the head of the Department charged with the expenditure, and that the rate of comjiensation was a matter left to the discretion of the Secretary of War. The Second Comptroller does indeed refer to section 848 of 726 EXECUTIVE REGULATIONS IN GENERAL. regulation Avas that liy which tho reward for the apprehension of deserters w^as regulated, before Congress was induced to take to itself the determination of the amount of the reward. the Eevised Statutes as though it might be held to fix the compensation of civilians attending as witnesses before courts-martial, but that section relates entirely to the Federal judiciary, of which courts-martial form no part, and is no more applicable to courts-martial than any other iirovision of the title ('Judiciary') in which it is foimd. "The fixing of the rate of compensation has, it seems to me, been purposely left by Congress to the Secretary of War. It has been intrusted to his discretion, and whenever, in the exercise of that discretion, he established a certain rate, that deci- sion is legally conclusive on all. In my opinion the Second Comptroller, in announc- ing his intention not to allow payments made according to the rates established by the Secretary of War, is exceeding his authority. "The disallowance of such payments will give much trouble, and j^et I can not recommend the recognition of a right on the part of the Second Comptroller to set aside a regulation made by the Secretary of War in the exercise of a legal discretion." The power of the President to determine the amount of fees and allowances, for specified servic-es, when an appropriation for them is made, but Congress does not itself determine the rates of such fees and allowances, is beyond all question, and has been recognized by the practice both of Congress and the Executive, as well as in the decisions of the courts. In United States v. Webster (2 Ware, 46; 28 Fed. Cases, 509), Judge Ware, of the United States district court of Maine, held, with reference to an army regulation making a certain allowance, as follows: "Nor do I see how it can be overcome but by a direct denial of the authority of the Department to establish any such rule, with respect to extra allowances, by general regulations and orders. It appears to me, that it is fairly within the authority of the War Department, under the sanction of the President, to establish general rules upon this subject, which, when duly promulgated, will be binding on the rights of officers. It is not contended that an order of the Executive can control an act of the legislature, or deprive a party of a right acquired under the law. But, as has lieen remarked, the legislation of Congress can never go into all the minute detail of I'egu- lation, involved in the coi'iplicated service of the Army. Much must unavoidably be left to the discretion of the high officers, who superintend that branch of the public service; and as these matters of detail are left to the regulation of the Department, it seems to me reasonable, when officers are reijuired to perform services which do not fall within the range of their ordinary duties, that it is properly within the discretion of the Department to determine what, and whether any, extra compensation should be allowed for such extra service, taking care that the rule be uniform, and applying in the same way to all similar cases. An authority of this kind seems to me to be clearly implied, in the reasoning of the court in the cases which have been before mentioned. 'The amount of compensation,' says 3Ir. Justice McLean, 'in the mili- tary service, may depend in some degree upon the regulations of the War Depart- ment; but such regulations must be uniform, and applicable to all officers under the same circumstances.' (United States v. Ripley, 7 Pet. (32 U.S.), 25.) And in still broader terms he says, in the opinion before quoted, 'Hence, of necessity, usages have been established in every Department of the Government, which have become a kind of common law, and regulate the rights and duties of those who act within respective limits; and no change of those usages can have a retrospective effect, but must be limited to the future.' (United States r. McDaniel, /(/., 15.) If usage is to govern, in what manner does usage become established? Obviously in no other way than by the practice of the Department. Apply the remark to the case now in judg- ment. A usage of allowing extra pay, for extra services of any particular kind, is established, V)y its l)eing charged in various instances, and allowed and ordered to be paid, by the Department. It is obvious, therefore, that no usage can Ije established but by the concurrence of the Deiiartment; for no number of charges, liowever numer- ous, on the part of the officers, can ever constitute a usage, imder which any right can beclaimed, unless they have been allowed. It is the allowance which constitutes the usage." This case was carried to the circuit court l)y writ of error, but did not come toa hearing until after the decision in the case of United States r. Eliason, 1(5 Pet. (41 U. S. ), 291, made in 1842. It was then affirmed, without argument, upon the author- ity of that decision. EXECUTIVE REGULATIONS IN GENERAL. 727 It is sard that regulutions made under a statute may be referred to as a practical interpretation of the statute/ In executing tiie laws it is often necessary for executive officers to interpret and construe them, and this ma}' be done by means of reg'uhitions. Such regulations are valid and ))inding, unless declared by the courts to be erroneous inter- pretations of the law. Each new tariff act, for example, necessitates many such regulations, and we have a good illustration of this in the Treasuiy Circular of Septemlier -1, 1897, with reference to the entry of personal effects under the act of Jul}^ 24, 189T. In this circular we find the following definition of the phrase, " residents of the United States returning from aVn'oad," as it occurs in the act: "The proviso in paragraph 697 contains special provisions and limi- tations concerning residents of the United States returning from abroad. It therefore becomes necessary to define the term ' residents of the United States returning from abroad,' in order that customs officers may have a reasonable guide in the practical application of the proviso. The word 'resident' has, in law", more than one meaning, much depending upon the connection and purpose in which it is used. As used in this proviso to paragraph (597, it is held by the Department to include all persons leaving the United States and making a journey abroad, and, during their absence, having no fixed place of abode. Persons who have been abroad two years or more, and who have had, during that time, a fixed place of abode for one year or more, will be considered as nonresidents within the meaning of this law." So, Article 213 of the Naval Regulations of 1896 prescribes as fol- lows: " The title * commander-in-chief,' when occurring in naval laws, regulations, and other documents, shall be held to refer to the officer in chief command of a fleet or squadron." And the United States cir- cuit court, district of Massachusetts (Colt, J.), recognized this regu- lation as conclusive, in re Jesse G. Grain, December 31, 1897. And so it is in all the executive departments. In making regula- tions to carry out a statute it is often necessaiy to place some express interpretation on it; and this interpretation holds good until judicially reversed. But, of course, great care should be taken to avoid strained interpretations. Many systems of regulations, besides army and navy regulations, have been issued, for the transaction of the ))usiness of different branches of the Government, such as the postal, patent office, pension office, land office, Indian office, civil service, customs, internal revenue, revenue-cutter service,^ and other treasury and consular regulations, 'Ignited States r. Cottinghani, 1 Rob. (Va.), 635; Winthrop, 19, note. - The regulations for the government of the Revenue-Cutter Service are in one respect unique; they establish a penal system, including a code of penalties and a system of procedure. No other regulations have ever undertaken to go to this extreme, 728 EXECUTIVE REGULATIONS IN GENERAL. etc. But these s^'stems of I'egulations. as the}" are here called, form by no means the whole of that mass of regulation law which consti- tutes so large and important a part of our administrative law. All regulations are not collected together in systems or groups, but an enormous mass of them consists of individual regulations,^ the knowl- edge of whose existence even is ordinarily limited to the few who have to apply them to the subjects to which they relate. It is difficult to form a true conception of the vastness and importance of all this great body of executive regulation law, controlling, as it does, the administration of all the executive departments with its rules of action. And when we consider that these rules of action are in gen- eral made, construed, and applied by the same authority, thus combin- ing quasi-legislative, quasi-judicial, and executive action, we cannot fail to be very nuich impressed with the extent of the jurisdiction cov- ered by them. In what has been said only the regulation law of the Federal gov- and it maj- well be doubted whether the executive power can be legally carried so far. The regulations of the United States Military Academy do, indeed, also prescribe a system of punishments, certain of which may be impcjsed by the Superintendent, without the intervention of any trial court, but these are regulations for the control of a school, and stand in this respect on a different footing from the regulations for the government of the Revenue-Cutter Service. Moreover they are substantially based on statute, except, more particularly, in those respects in which the authority for the regulations adopted is the power to prescribe the necessary rules for a pul>lic institution peopled with persons whom it is necessary to govern and control. They are issued by authority of the President, but, had none been so issued, the Superin- tendent himself would have had the power to make such reasonable regulations for the government and maintenance of the discii^line of the institution as would not be inconsistent with statute or regulations emanating from a higher source, and he now actually has the power as to matters necessary to regulate l)ut which have not Iteen covered by prescribed regulations. The Superintendent of the Naval Academy has a very comprehensive authority in this respect, which is expressly delegated to him by the Secretary of the Navy. In the exercise of this authority he issues a complete system of " Regulations for the Interior Discipline and Government of the U. S. Naval Academy," covering subjects which, at the Military Academy, are governe discussion, includ- ing General Schotield's remarks, was pul)lished in the al)ove-mentioned report of the Joint Committee on the Reorganization of the Army (of which General Burnside was chairman), as were also the proposed articles which contained the disput(^d propositions. In the elaborate bill which was reported by the committee, and which was intended, together Avith certain unchanged chapters of the Revised Statutes, to be a "'condensed and complete military code,"" the general officers' view was adopted. On a later occasion the relation of the staff depart- ments to the General in Chief was again the sul)ject of consideration, and on this occasion the Secretarv of AVar (Mr. Lincoln) gave his views at some length on the other side of the question, and decided it accordingly.' About this time, namely. August 15. 1876, Congress passed a joint resolution to the following effect: ''Whereas the President was, by an act of Congress, approved ]March first, eighteen hundred and seventy-live, authorized to make and pu()- lish regulations for the government of the Army, in accordance with existing laws; and ^ For another discussion of the subject of the command of the Army, see an article by General Schotield in the Century Magazine for August, 1897. See also, "The Command of the Army," in Fry's Miscellanies. In Scott's Military Dictionary, published in 1864, we find the following statement: "Administration and command are distinct. Administration is controlled by the head of an executive departnient of the government, under the orders of the Presi- dent, by means of legally api>ointed administrative agents, with or without rank, while command, or the discipline, military control, and direction of military service of othcers and soldiers, can be legally exercised only by the military hierarchy, at the head of which is the constitutional commander-in-chief of the Army, Navy, and militia, followed by the commander of the Army, and other military grades created by Congress." (Title "Administration;" and see also titles "Regulations" and "Army Regulations.") Colonel Scott did not recognize the constitutional power of the President to make army regulations. In England the powers of tlie "commander-in-chief" [/. c, the commanding gen- eral of the; army] were at first much more extensive than they are now; in fact the King deputed to him all his own military powers in their full effect, and the com- mander in chief exercised the functions which are now divided between the secretary- at-war and the connnander in chief. He could frame articles of war; he could order out militia; he granted all connnissions, as well of administrative officers as of others; he issued wari'ants for payments; and lie prejiared the estimates for the establish- ment. When a secretary-at-war was ai)p()inted he was made subordinate to thecom- mander in chief; in fact the latter was independent of all control l)ut that of the sovereign, and was the sole head and chief of all military organization, administrative as well as disciplinarv. (Walton's Historv of the British Standing Armv, 1660 to 1700.) DIFFERENT EDITIONS OF ARMY REGULATIONS. 745 ^ "■Whereas by an act of Congress, approved July twenty-four, eighteen hundred and seventy-six, a commission was created to which has been referred the whole subject-matter of reform and reorganiza- tion of the Army of the United States; therefore ^^ Resolved hy the Senate mid House of Representatives of the Zhiited States of America in Congress assembled^ That the President be re- quested to postpone all action in connection with the publication of said regulations until after the report of said commission is received and acted on ])y Congress at its next session.'' On the 7th of March, 187S, a bill was introduced in the Senate to provide for a code of army regulations. The bill having been referred to the Secretary of War for such suggestions as he might deem proper, Secretary of War McCrary said that he adhered to the opinion that the President should be authorized to make and publish regulations for the government of the Army, but if it be required that such regu- lations should be submitted to Congress, to be by that body approved before being issued, he recommended early action. On the 15th of August, 1878, the clerk of the Committee on Mili- tary Affairs of the Senate transmitted to the Secretary of War a copy of a Senate resolution of June 18th, authorizing a subcommittee, for the purpose of considering the revision of the Army Regulations, and stated that he had been directed to cooperate with the War Depart- ment in every possible way and to report to the committee the revision of the regulations made under the direction of the Secretary of War. But by act of June 23, 1879 (21 Stats.. -Si), Congress disposed of the whole matter by authorizing and directing the Secretary of War to cause all the regulations of the Army and general orders then in force to be codified and published to the Army. The regulations of 1881 were the outcome of this legislation. In July, 1880, a board was convened for the purpose of examining and reporting upon the codification of the regulations made pursuant to its requirements. It consisted of GeneraLs McDowell and Meigs, Colonels Sackett, Hazen, and Upton, with Maj, A. H. Nickerson as recorder. General McDowell was, however, almost immediatel}' relieved and General Auger substituted in his stead. The board received the fol- lowing instructions, comuuinicated to them by the Adjutant General: "'In submitting the accompanying codification of the hiws, regula- tions, and orders made in pursuance of the requirements of section 2 of an act approved June 23, 1879, the Secretary of War instructs me to say that he desires the board of officers to examine the codification to ascertain whether its parts are consistently arranged; whether there are inaccuracies resulting from misinterpretation; whether there are any repetitions or Instances where the phraseology may not clearly express the exact meaning, and that there are no contradictions. 746 DIFFERENT EDITIONS OF AKMT REGin.ATIONS. Wherever these defects are discovered it will be the duty of the board to propose a substitute for the defective paragraph and submit it in its report for the Secretary's action. '•It is no part of the functions of the board to inahe regulations, but simply by a careful examination to detect errors and report what changes ma}" be considered requisite for a proper fulfillment of the law under which the codification was made. "It is the Secretary's desire that when these regulations are pub- lished to the Arm}" they shall form as perfect a code as possible and be so free from errors as not to require correction or immediate modification.'' On the 13th of September the board was dissolved. In a note at the beginning of the regulations of 1881 it is stated that "the work of codification was confided to the Adjutant General of the Arm}^" and, in fact, the codification submitted to the board by the Adjutant General (Drum) was prepared by Adjutant General Townsend. A characteristic of these regulations, and one which makes them still valuable, is that the}" give the source and authority of the individual regulations. An "abridged edition" of them was also issued. After this no revision of the regulations appears to have been under- taken until December, 1886, when a board was appointed, consisting of General Benet, Colonel (now General) Otis, Lieut. Col. R. N. Scott, and Lieut, (now Lieut. Col.) George B. Davis, "for the purpose of revising and condensing the regulations of the Arm}- and preparing a new edition of the same." Colonel Scott died two months later. The work of this board finally took the form of the regulations of 1889. There remains to be considered onl}" the regulations of 1895. General Kelton, in Decem])er, 1891, called attention to the necessity of a revision, and in February, 1892, General Schofield wrote as follows: "The need has become urgent for a new edition of the revised regulations. The need is not so much for any revision of the existing regulations as for a new pul)lication of the regulations as they now exist; that is to say, the regulations of 1889 as revised since their publication. That edition having l)een very hastily published, and hence very imperfect, it has been amended in so manv details and in some cases frequentl)', that a new publication of the regulations as they exist to-day is of vital importance. "The revision that has l)een going on during the last three years, or nearly three years, has involved very great labor and very careful consideration of the several sul)jects on the ])art of many officers, including the chiefs of bureaus, the Commanding General, and the DIFFERENT EDITIONS OF ARMY REGULATIONS. 747 Secretary of War. So iiiuch of the reg'ulations as have been so revised ought, in my judgment, not to be changed without cogent reasons. '"The revision of regulations is a very delicate work, and in past experience has generally resulted in an exceedingly imperfect code, requiring luunerous amendments. Regulations are a matter of grad- ual growth, and should be preserved as a rule in the form which has resulted from such growth. In some cases, doubtless, obsolete regu- lations may be eliminated and others may be somewhat simplified, and some which were carelessl}^ omitted in the last revision should be restored. The officer charged with the revision should be instructed to consider very carefully all such questions, consult the chiefs of bureaus of the War Department, and after obtaining concurrent views upon each question, submit it for the consideration of the Command- ing General, and finally for the approval of the Secretary of War, before incorporating it in the revised edition. "In this way, as suggested by the Adjutant General, a satisfactory work may be accomplished, ready for publication as soon as it is com- pleted and duly indexed." This revision passed through the hands of Col. (now Adjutant Gen- eral) H. C. Corbin. Maj. (now Lieut. Col.) J. C. Gilmore, and Maj. (now Lieut. Col.) J. B. Babcock, constituting a board, and afterwards through the hands of the Adjutant General and the Major General Commanding the Army. Gen. E. S. Otis also went over the work. But the preparation of this revision was finally in charge of the Assistant Secretary of War, Maj. (now Lieut. Col.) George W. Davis, and Capt. J. T. French. One of its distinguishing features is that the regulations which relate more particularly to the management of the business of the staff departments, and do not affect the Army at large, are omitted from the genei'al regulations and embodied in sepa- rate manuals. Necessarily, however, these manuals cover a wider field than this would indicate. The general Regulations, with their accompaniment of manuals, ma}^ be regarded as fornnng the Regula- tions of 1895. One of the manuals — the Manual for Courts-Martial — is not, indeed, a staff' manual at all, l)ut is a general system of rules for the administration of military justice. It is the first of the Ivind pro- mulgated by the War Department, and is an outgrowth and enlarge- ment of the directions on the subject which it was formerly the practice to issue from the headtpiarters of military departments. Regulations, approved b}- the Secretary of War, had, however, before this been issued })y several of the staff* departments for their own government. 748 DIFFERENT EDITIONS OF ARMY REGULATIONS. The regulations for the United States Militaiy Academy also ema- nate from the President's constitutional power/ ' There can be no doubt, however, that within limits, the Superintendent of the United States Military Academy, the same as any officer in control of a public insti- tution peopled with persons whose good conduct is intrusted to his charge, may also lay down rules or regulations. He does in fact exercise this power in issuing certain orders. A distinction has, indeed, been made between regulations and orders, l^ut it can not be said that there is any essential difference between regulations and gen- eral orders laying down general rules of action. Asa good illustration of this power, as vested in superintendents of institutions of this character, we may take the various Soldiers' Homes. For these certain regula- tions are prescribed by statute and others by their boards of managers, necessarily, however, leaving a very considerable residue of matters, principally relating to dis- cipline, to be regulated by the governors of the institutions. It may, of course, sometimes be difficult to decide what the limit of the poAver is, l)ut that the power exists seems clear. Without it iniljlic institutions of this kind could not Ije con- trolled, and therefore could not be managed for the purposes for which they are established. Commanding officers of military posts have this power in a marked degree — lim- ited, it is true, in their case alsQ, by statute and regulation of higher authority, but, subject to these, having a distinct, necessary, and unquestioned jurisdiction. In this case, however, as also in the case of the Superintendent of the IMilitary Academy, the power is a part of an independent system, namely, the military system. But it is the same kind of power. And it is the same kind of power that is exercised by the school teacher in the maintenance of the discipline of his school. "When no rules and regulations have been prescribed Ijy the board, the teacher is authorized to make such reasonable rules as shall best promote the welfare of his school and secure order and discipline therein. And even where rules have been prescribed by the board, the teacher may, unless expressly prohibited, make such additional rules and requirements as special cases or sudden emergencies may render necessary." (Meachem on Public Officers, 728. ) And see American and English Encyclopedia of Law, title, "Master and Servant," vol. 14, p. 858. Ship captains possess this authority in a peculiar degree. Justice Story, discussing the relation of the officers of a ship to the seamen, said: "The learned counsel for the defendant has asked the court to direct the jury, that the officers of the ship are clothed, not merely with a civil, but with a military power, over the seamen on board. In my judgment, that is not the true relation of tlie par- ties. The authority to compel obedience, and to inflict punishment, is, indeed, of a summary character, but, in no just sense, of a military character. It is entirely civil; and far more resembles the authority of a parent over his children, or rather, that of a master over his servant or apprentice, than that of a commander over his soldiers. Proi)erly speaking, however, the authority of the officers over the seamen of a ship, is of a ])eculiar character, and drawn from the usages, and customs, and necessities of the maritime naval service, and founded upon principles applicable to that relation, which is full of difficulties and perils, and requires extraordinary restraints, and extraordinary discipline, and extraordinarv promptitude and obedience to orders." (United States v. Hunt, 26 Fed. Cases, 435.) Commanders of naval vessels possess the power also, and being officers in command of public armed ships they have even greater discretion. ( Wilkes r. Dinsman, 7 How., 89.) In a greater or less degree, according to the conditions, the power to make rules of action or regulations must exist wherever there are rulers and ruled. In military commands the strictest discipline is necessary, and for the purpose of maintaining this disci])line a military jurisdiction, or military law, exists, which is quite independent and free from interference within its own special scope. But in a general sense it is certainly true that wherever the relation of ruler and ruled is legally established there must be a power of control, in which, subject to such limitations as may legally be imposed, is included the power to make regulations. INTERPRETATIOIS' AND CONSTRUCTION OF REGULATIONS. 749 CHAPTER V. THE INTERPRETATION AND CONSTRUCTION OF REGULATIONS. "'Interpretation i,s the art of finding out the true sense of any form of words; that is. the sense which their author intended to convey, and of enabling- others to derive from them the same idea which the author intended to convey." "Construction is the drawing of conclusions respecting su)»jects that lie beyond the direct expression of the text, from elements known from and given in the text — conclusions which are in the spirit, though not within the letter, of the text."^ "There can be no sound interpretation without good faith and com- mon sense. The object of all interpretation and construction is to ascertain the intention of the authors, even so far as to control the literal signitication of the words; for ver}xi it a sunt inteUk/enda ut res rtiagis valeat quam pereat. Words are, therefore, to be taken as those who used them intended, which must be presumed to be in their popular and ordinary signitication, unless there is some good reason for supposing otherwise, as where technical terms are used; quoties in verha nulla est ambiguitas^ ibi nulla expositlo contra verha fienda est.'''*^ The underh^ing principles of true interpretation and construction apply to all language, in whatever form it ma}' be used, although there are principles applicable only to its special uses, as in constitutions, statutes, executive regulations, or contracts. The rules for the inter- pretation and construction of executive regulations closelj' resemble those for the interpretation and construction of statutes. ^ 1. The first practical question which suggests itself is: Does each ^ Legal and Political Hermeneutics, by Francis Lieber, pp. 11,44. "Interpretation differs from construction in that the former is the art of finding out the true sense of any form of words: that is, the sense which their author intended to convey; and of enabUng others to derive from them the same idea which the author intended to convey. Construction, on the other hand, is the drawing of conclusions, respecting subjects that lie beyond the direct expressions of the text, from elements known from and given in the text; conclusions which are in the spirit, though not within the letter of the text. Interpretation only takes place if the text conveys some meaning or other. But construction is resorted to when, in comparing two different writings of the same individual, or two different enactments by the same legislative body, there is found contradiction where there was evidently no intention of such contradiction one of another, or where it happens that part of a writing or declaration contradicts the rest. When this is the case, and the nature of the docu- ment or dei'laration, or whatever else it may l)e, is such as not to allow us to consider the whole as being invalidated by a partial or other contradiction, then resort must be had to construction; so, too, if required to act in cases which have not been foreseen by the framers of those rules, by which we are nevertheless obliged, for some bind- ing reason, faithfully to regulate as well as we can our action respecting the unfore- seen case." (Cooley, Constitutional Limitations, 51.) ^Francis Lieber: subject, "Interpretation," Bouvier's Law Dictionary. SDevereux (Ct. Cls.), 148. 750 INTEEPRETATION" AND CONSTRUCTION OF REGULATIONS. new edition of the Army Regulations entirel}' displace the preceding one, both as to the subjects treated of and those omitted i It is a principle of statutorj^ construction that when the legislature makes a revision of a statute, and frames a new statute upon the subject-matter, and from the framework of the act it is apparent that the legislature designed a complete scheme for the matter, it is a legis- lative declaration that whatever is embraced in the new law shall pre- vail, and whatever is excluded is discarded/ And this principle is applied to codifications. The general rule seems to be that statutes and parts of statutes omitted from a revision are to be considered as annulled, and are not to be revived by construction. *^ The practice with reference to the different editions of the Army Regulations has conformed to this principle, each new edition being regarded as intended to be a substitute for the preceding one, and to displace it, both as to matter included in both editions, and matter included in the earlier but not in the later edition. It is the substitution of one compilation or system for another. ^ 2. What effect has such a new edition on existing orders relating to subjects covered by it, and on orders prescribing rjegulations not embodied in it? The former, it would seem, are displaced by the new code, but the latter not; it being the understanding — subject to which the code is made — that it does not affect orders relating to subjects not embraced in it, nor in the preceding code. Such a question, for example, is understood to have once arisen with reference to General Orders No. 100, of 1863 (Instructions for the Government of the Armies of the United States in the Field), and to have been decided in favor of the permanency of these regulations. The non-user of a statute does not repeal it, although it has been said that, on the principle that custom is of great force in the con- struction of statutes, long and uniform disuse might in some cases amount to a practical repeal. This would seem to appl}^ even more strongly to regulations, which are made and executed by the same authority. The circumstances may be such that the long-continued disuse of a regulation would be significant of the understanding of the executive authority that it has become obsolete and inoperative. 3. The effect of the revocation of an arm}^ regulation by which a preceding regulation was revoked. The principles regulating this differ somewhat from those of statu- tory construction. The latter have been thus stated: " Where an act is repealed, and the repealing enactment is repealed 1 Bracken v. Smith, 89 N. J. Eq., 169. ■^ Endlich, Interpretation of Statutes, § 202. n? Opin. Atty. Gen., 463. INTERPRETATIOISr AND CONSTRUCTION OF REGULATIONS. 751 b_y another, which manifests no intention that the first shall continue repealed, the common-law rule was (and in the absence of anj^ statu- tory declaration to the contrary, the general rule still is), that the repeal of the second act revives the first; and revives it, too, ah initio ^ and not merel}^ from the passing of the reviving act. (The revival of the original statute is also, in general, the effect of the expiration of a repealing statute by its own limitation, or of the suspension of the repealing act; and it is immaterial whether the repeal of the repealing act be express or by implication. Moreover, it extends, not only to statutes, but to the common law; so that, w^here an act superseding in any particular the common-law rule previoush" applicable is repealed, that rule is held to be revived. The doctrine stated is, however, not without exceptions, founded in the necessity of giving effect to the legislative intent. Thus, it is said that an absolute afiirmative repeal of a statute by a subsequent one will survive the expiration of the latter by its own limitation; that the repeal of a statute which was a revi- sion of, and which was intended as a substitute for, a former act to the same effect, will not revive the latter, such a result being manifestly contrary to the intent of the legislature; and that, for the same reason, the repeal of an act "amending another 'so as to read' in a given manner, which operates as a total merger of the amended act in the amending one, cannot revive the original statute.") (Endlich, Inter- pretation of Statutes, §. 475.) But with reference to army regulations it would seem to be an established usage that the revocation of a regulation or an order, by which a preceding regulation or order was revoked, will not revive these, unless there be some express evidence of such an intention. This usage is no doubt founded on the necessity of certainty. The revocation of a regulation which is simply declaratory of an established custom of the service would, however, in the absence of words indicating a different intention, doubtless be held to leave the custom in force. For example, a regulation of the Manual for Courts- Martial, which constitutes a part of the Army Regulations, says that the judge-advocate of a court-martial swears the witnesses. This is declaratory of the custom of the service, for the ninety-second article of war, which prescribes the oath to be administered. to witnesses, does not say by whom it shall be administered. Undou])tedly, the revoca- tion of the regulation would leave the custom of the service in force. 4. Expressio unius est exdusio alteriits. This rule applies in the construction of the Army Regulations, as well as in the construction of statutes. Where, for example, certain allowances are specified, other allowances for the same thing are excluded. Thus, it has been held by the War Department that the very fact that the Army Regu- 752 INTERPRETATION AND CONSTRUCTION OF REGULATIONS. lations do not provide for certain allowances claimed, raises a presump- tion that it was not the intention, when army regulations were published and promulgated by the direction of the Secretary of War, to make such allowances.^ But, apparently, even in the matter of allowances, a regulation, which has not been approved by Congress and is not made pursuant to an act of Congress, may be modified in a particular case, or the case may be taken out of its operation. Thus, it was held by the Assistant Comp- troller of the Treasury (Mr. Bowers), wath reference to the regulation prohibiting the reimbursement of Army officers who, when changing station, ship and pa}' for the transportation of their baggage, that "as the regulation was made b}' the Secretary of War, that officer has the power to amend it, or to waive its provisions in particular cases, but so long as the regulation stands as it does, no reimbursement can rightfully be made without the specific waiver of the regulation by the Secretar}^ of War, when shipments are made by officers."" It is to be observed, however, that the Assistant Comptroller did not here make any distinction between regulations made pursuant to, or in execution of, a statute — in this case an appropriation act — and other regulations. 5 In construing arnw regulations it is often necessary to consider to which of the classes named at the beginning of this work they belong; L e., those which have been approved and adopted by Congress; those made pursuant to, or in execution of, a statute; and those made by the President as commander-in-chief, but not falling under either of the other heads. («) Those which have been approved and adopted by Congress. These can not be modified or amended until the Congressional sanction has been removed. (See ante.) (h) Those made pursuant to, or in execution of, a statute. These may be modified or amended, but individual exceptions to them can not be made. (See ante.) (c) Those made by the President as commander-in-chief, and not falling under (a) or (h). These may be modified, and exceptions to them may be made. (See ante.) We are ordinarily in the habit of regarding the different paragraphs of the Army Regulations as on the same footing in this respect, that is to say, as having the same degree of immutability; but this is, for the reason stated, believed to be a mistake likely to lead to faulty action. When we are considering the power of the President to modify, or make ' Claim of Captain Morton. ''3 Comp. Dec, 305. INTERPEETATION AND CONSTRUCTION OF REGULATIONS. 753 an exception to, a regulation, we ought to know to which of the above classes it belongs. 6. Authentic interpretation and construction. "Authentic interpretation is called that which proceeds from the author or utterer of the text himself; properly speaking, therefore, it is no interpretation, but a declaration. If a legislative body, or mon- arch, give an interpretation, it is called authentic, though the same individuals who issued the law to be interpreted may not give the inter- pretation; because the successive assemblies or monarchs are consid- ered as one and the same, making the law and giving the interpretation in their representative, and not in their personal characters. Authen- tic interpretation, therefore, need not always be correct, though it has, if formally given, binding power. Still it may be reversed b}' a sub- sequent law.'^^ In 1861 and 1862 the pay of officers of the Army was made up of pay proper and certain allowances, one of which was for a certain number of servants at the rate of pay, etc. , of private soldiers. In 1861 the pay of private soldiers was increased, and in 1862 it was enacted that the legislation making this increase "shall not be so construed, after the passage of this act, as to increase the emoluments of the commissioned officers of the Army." This was an instance of authentic legislative construction. Executive construction of regu- lations is much more common, and is not limited to cases arising subsequently to the construction, but, on the contrary, is applied to existing cases. Because of this, and because there is in general no remedy in the nature of an appeal, it is incumbent on the authority construing the regulation to take great care to construe correctly. 7. Array regulations, like statutes, are not to be given a retroactiv^e effect unless their language clearly requires it. (United States v. Webster, 28 Fed. Cases, 509; United States v. Davis, 132 U. S., 334; § 491, p. 140, ante.) We must, however, make an exception to this rule in favor of curative and declaratory regulations, the former being intended to cure matters of form, and the latter being explana- tory of other regulations. But the presumption always is that the intention of the regulation is to lay down a rule for the future. If the intention is to give it a retroactive eifect, it must clearl}- appear. This is applying to executive regulations a familiar rule of statutory- construction. " It is a proposition too well settled by authority to admit of dispute, or call for extended discussion, that curative acts, especiall.v upon mat- ters of public concern, are to be allowed the retroactive effect they are ^ Lieber's Hermeneutics, p. 62. 16906— 01 48 754 INTERPRETATION AND CONSTRUCTION OF REGULATIONS. clearl}' intended to have, even though vested rights and decisions of courts be set aside by them, so long as they do not undertake to infuse life into proceedings utterly void for want of jurisdiction, and do not contravene the constitutional provisions against laws impairing the obligation of contracts and ex post facto laws, or any other provision of the particular constitution to which the legislature passing them may be subject. The purpose of these sections is merely to point out the efi'ect. upon the construction of such, and acts declaratory of former statutes or rules of law, of the presumption against an intention to legislate retrospectively, and, possibly, of a constitutional prohibition against reti'ospective operation in the particular class of cases to which the act is to be applied, coupled with the necessity of giving, if prac- ticable, a lawful and reasona))le operation to the expression of the legis- lative will." (Endlich, Interpretation of Statutes, § 291.) These principles apply, mtitatis imdandis^ to executive regulations. But it would be a violation of principles of a much higher degree of obligation, if they were to be resorted to in disregard of those men- tioned in rule 4 and at the beginning of these remarks. Such a viola- tion could not, indeed.be properly regarded as curative or declaratory. 8. The Army Regulations are, as the order of promulgation by the Secretary of AVar announces, ''regulations for the Arm3^'"' Their provisions would not relate to the business of the War Department, unless it should expressly appear that such is the intention. Thus, it was held that paragraph 679, Army Regulations, only relates to the public property in the custody of the military establishment, and does not relate to the property held by the War Department proper, which is a civil institution, ciuite distinct from the militar}", and to which, in the absence of express words to that efi'ect, the regulation mentioned does not apply. (Opin. fTudge-Advocate General. Januarv 10, 1898.) 9. Executive regulations are not in general imperative, so as to render actually invalid acts provided for by the regulations, ))ut done without a compliance with their requirements. They are in general directory only. In this respect they resemble statutor}" rules for the performance of public duties. To affect with invalidity acts done in neglect of such rules would work serious general inconvenience or injustice to persons who have no control over those intrusted with the duty, without promoting the essential aims of the legislature. In such case, they are said not to ])e of the essence, or substance of the thing required; and, depending upon this (luality of not being of the essence or substance of the thing required, compliance being rather a matter of convenience, and the direction being given with a view simply to proper, orderly', and prompt conduct of business, they seem to l)e generally understood as mere instructions for the guidance and gov- INTERPRETATION AND CONSTRUCTION OF REGULATIONS. 755 ernment of those on whom the duty is imposed, or, in other words, as director}' only. (Endlich on Interpretation of Statutes, § 436.) In general, statutes directing the mode of proceeding by public officers are deemed advisory, and strict compliance with their detailed provisions is not indispensable to the validity of the proceedings them- selves, unless a contrary intention can be clearly gathered from the statute construed in the light of other rules of interpretation, (/c/'., § 437.) A provision in a statute, rule of procedure, or the like, is said to l)e directory when it is to be considered as a mere direction or instruction of no obligatory force, and involving no invalidating consequence for its disregard, as opposed to an imperative or mandatory provision which must be followed. The general rule is that the prescriptions of a statute relating to the performance of a public dut}- are so far direct- ory that, though neglect of them may be punishable, 3^et it does not afl'ect the validity of the acts done under them, as in the case of a statute requiring an officer to prepare and deliver a document to another officer on or before a certain day. (Black's Law Dictionar}-.) Man}" statutory requisitions, intended for the guidance of officers in the conduct of business, do not limit their power or render its exercise in disregard of the requirements inefi'ectual. Such are regulations designed to secure order, system, and dispatch in proceedings. Pro- visions of this character are not mandatory unless accompanied by negative words importing that the acts shall not be done in any other manner or time than that designated. (Anderson's Law Dictionary.) As with statutes, so with executive regulations, when it is the inten- tion that acts shall be invalid unless done in the wa}' prescribed, and therefore the way prescribed is of the essence of the regulation, the regulation is imperative, and not merely directory. These rules have been applied in the construction of army regula- tions. So held with reference to paragraph 746 of the Army Regula- tions of 1889, forbidding purchases of supplies to be made from, or contracts for supplies or services to be made with, persons in the military service, that it was directory merely, and that a contract might still be legal and binding, though entered into in contravention of its terms. (See § 958, page 273, ante.) But a regulation which has been adopted by Congress, even though directory only, should not be deliberately set aside, any more than the directory require- ments of a statute. Nor should a directory regulation made pursuant to or in aid of a statute be deliberately repudiated in an individual case. Such action would be unauthorized (and destructive to sys- tem), although the thing done would not therel)y be rendered invalid. It has been held by the War De]3artment that certain regulations 756 INTERPRETATION AND CONSTRUCTION OF REGULATIONS. made for the purpose of carryino- out the law with reference to appointments from the ranks, and which prescribe requirements relat- ing to the examination of candidates, can not be set aside in individual cases. This decision is manifestly correct, whether it rests on the ground that the regulations were intended to be imperatiye, or on the ground that the Department has no authorit}^ thus, in indiyidual cases, to set aside regulations made pursuant to a statute, eyen though they be directory onl}-/ 10. When there is a doubt as to the meaning of a regulation, refer- ence may be had to the order, if any there be, on which it is based, for an explanation of the'doubtful language. This is an application of a rule of statutory construction. Thus, Justice Miller, speaking of the Revised Statutes of the United States, said: "Where there is a substantial doubt as to the meaning of the lan- guage used in the revision, the old law is a valuable source of infor- mation. The Revised Statutes must be treated as the legislative declaration of the statute law on the subjects which they embrace on the 1st day of December, 1873. When the meaning is plain, the courts can not look to the statutes which have been revised to see if Congress erred in that revision, but may do so when necessar}^ to con- strue doubtful language used in expressing the meaning of Congress." (United States v. Bowen, 100 U. S., 513.) So, w^here there is a doul^t as to the meaning of a regulation, refer- ence may be had to the antecedent history of the subject. This is not uncommonly a source of information in the construction of reg- ulations, and recourse is often had to it as a matter of historical illustration and confirmation, even when the language of the regula- tion is entirely free from doubt. 11. ''He knows not the law who knows not the reason for the law." In construing a regulation the reason for it may be taken into account, and cases excluded from it which, although within the letter of the regulation, are not within the reason for it. This also is the applica- tion of a principle of statutory construction. ."'It is a familiar rule," say the Supreme Court, "that a thing may be within the letter of the statute and yet not within the statute, because not within its spirit, nor within the intention of its makers. This has been often asserted, and the reports are full of cases illustrating its application. This is not the substitution of the will of the judge for that of the legislator, for frequently words of general meaning are used in a statute, words •broad enough to include an act in question, and yet a consideration of the whole legislation, or of the circumstances surroimding its enact- ment, or of the absurd results which follow from giving such broad ' See G. C. M. O. No. 27, Navy Dep't, 1898. INTERPKETATION AND CONSTRUCTION OF REGULATIONS, 757 meaning- to the words, niake.s it unreasonable to believe that the leg-is- lator intended to include the particular act/' ^ 12. When the punctuation i.s .such as to interfere with true interpre- tation, it should be disregarded. This rule of statutorj' interpretation is applicable to the interpretation of regulations. But the evidence of the interference should be clear. As stated by Black and the authorities cited bj^ him: "In the interpretation of written instru- ments, ver}' little consideration is given b}- the courts to the punctua- tion, and it is never allowed to interfere with or control the sense and meaning of the language used. The words employed must be given their common and natural effect, regardless of the punctuation or grammatical construction; and considerations based on the punctua- tion alone must never be allowed to violate the well-settled rule that, where it is possible, effect must be given to every sentence, phrase, and word, and the parts must be compared and considered with refer- ence to each other. Punctuation is a most fallible standard by which to interpret a writing; it may be resorted to when all other means fail; but the court will first take the instrument by its four corners, in order to ascertain its true meaning; if that is apparent on judicialh^ inspecting the whole, the punctuation will not be suffered to change it. ""If. therefore, the words of the act, taken in themselves alone, or compared with the context and read in the light of the spirit and reason of the whole act, convev a precise and single meaning, they are not to be affected b}- the want of proper punctuation or by the insertion of incorrect or misplaced marks. "^ "Punctuation in written instruments may sometimes, in cases of ambiguity, shed light upon the meaning of the parties, but it is never allowed to overturn what seems the plain meaning of the whole instrument. It may be resorted to when all other means fail.''^ 13. The Arnw regulations consist of a great number of individual regulations, derived from a great variety of sources, and reduced to words by many different persons. They, to a large extent, relate to the business of the different staff' departments of the Army, the regu- lations relating to one department often not affecting others. Words may sometimes, in consequence of this, be differently used in different connections, or, perhaps, with meanings qualified by their surround- ings. The rule of statutory construction, JSfosciter a sociis, here applies. To illustrate: Paragraph 771. of the Army Regulations of 1.S89. prescribed that affidavits or depositions might be taken before certain militar}- officers, wdthout specif j'ing in what cases. According to the language of this paragraph, taken hj itself, these officers were 1143U. S., 459. ^Black's Construction and Interpretation of the Law.-?, p. 186. ^Ani. and Engl. Enc. of Law, vol. 11, p. 521, and authorities citea. 758 INTERPKETATIOIS' AND CONSTRUCTION OF REGULATIONS. o-iven the power to take affidavits and depositions (which was held to inchide the administering- of oaths) for all purposes whatsoever; but, as the paragraph was amongst other paragraphs, and in an article, relating to propert}^ accountability, it was evidently the intention to confer the power (an excess of authority even then) only for the pur- pose of accounting- for public property in the custody of the military establishment. The meaning of the paragraph was determined b}" its surroundings. 1-t. As with statutes, so with executive regulations, contemporane- ous construction, and official usage for a long period, by the persons charged with their adminisj^ration, are among the legitimate aids in determining- their meaning. By contemporaneous construction is meant that put on the regulation at the time that it was made. As usage under a regulation is generally founded on contemporaneous construction, these, thus united, should ordinarily" be considered as conclusive; except, of course, when the question is as to a conflict between the regulation and some superior rule of action.^ In the administration of military affairs, as in other brancnes of government, precedents are of great value, and an authoritative con- struction, once given to a regulation, should thereafter receive great weight. Stare decisis^ et non quieta movere, is a maxim applicable to constructions of regulations b}- the Executive, as well as to construc- tions of law b}^ the courts. To change the accepted meaning of a regulation b}" a new construction is disturbing, and should be avoided. It is preferable to change the regulation itself when that can be done. We see it sometimes announced that the action taken in a case will not be followed as a precedent. This is scarcely more than a declara- tion of a present intention in regard to future action, and as such affects only the authority making it, and is not even legally binding on him. If the thing done be within the legal power of the authority doing it, it will be a precedent, although, perhaps, weakened l)y the circumstances of the case. Accordingly, we tind precedents of this kind cited, notwithstanding the announcement that the action taken is not to be so regarded. But it is not the object of these remarks to treat the subject of the construction of regulations at any length. All that has been attempted has been to point out a few of the most important principles. For the rest it may be said that in general the rules of statutory construc- tion will be safe guides. ^ Under the head of, "Principles governing Regulations," Colonel "Winthrop, in his work on Military Law, points out and discusses the following rules: 1. They must not contravene existing law. 2. They must not le.iiislate. 3. They must confine themselves to their subject. 4. They must be uniform. 5. They should be eciuitable. APPENDIX B. THE USE OF THE ARMY IN AID OF THE CIVIL POWER, BY 0. NORMAN LIEBER, JUDGE-ADVOOATE GENERAL, U. S. ARMY, 1898. B}" the use of the Army in aid of the civil power i« here meant its use under some power g-ranted by the Constitution of the United States, either directly or through the medium of legislation. "War powers," independent of the Constitution, whatever they ma}^ be, and whether legislative or executive, are no part of this subject/ The use here spoken of has reference to the occasions for the employment of the Army, that is, to the purposes for which it may i:)e used, and not to what it may do in carrying out the use. The occasions had in view are those of resistance to the law not amounting to war, and the sub- ject to which these observations will be more especiall}- addressed is the employment of the Army in executing the laws of the United States and in protecting their instrumentalities of government against unlaw- ful interference. The Army Appropriation Act of June 18, 1878, contained the fol- lowing provision: ""From and after the passage of this act it shall not be lawful to employ any part of the Army of the United States, as ajjosse eoinitatus^ or otherwise, for the purpose of executing the laws, except in such cases and under such circumstances as such employment of said force may Ite expressly authorized l»y the Constitution or by act of Congress; and no money appropriated by this act shall be used to pa}^ any of the expenses incurred in the employment of any troops in violation of this ^ The North American Review for November, 1896, publishes the writer's views on what constitutes the justification of the war power known as "martial law." The l)osition is there taken that martial law is defensible only as an exercise of executive military power founded in actual iiei'Cf^sity, thus disagreeing with the view, some- times advanced, that it is within the power of Congress to authorize it. 759 760 USE OF THE ARMY IN AID OF THE CIVIL POWER. section and any pev.son wilfully violating the provisions of this section shall ])C deemed g-uilty of a misdemeanor and on conviction thereof shall be punished by a fine not exceeding ten thousand dollars or imprisonment not exceeding two years or ])y both such line and impris- onment." From June 30th until November 21st, 1877, the Army of the United States was maintained without any appropriation, the two Houses of Congress having failed to agree. It would be foreign to the purpose of these remarks to comment on this significant fact in our constitu- tional histor}", but the proceedings in Congress which led to the failure of the Army Appropriation Act at the second session of the Forty- fourth Congress, and those which resulted in the above legislation, are part of the history of the subject under consideration. On the '•2'-2d of Januar}^, 1877, the President, in response to a resolu- 1:ion of the House of Representatives, made the following communica- tion : "To the House of Bejyresentatives : "On the 9th day of December, 1876, the following resolution of the House of Representatives was received, viz : " ''Resolved., That the President be requested, if not incompatible with the public interest, to transmit to this House copies of any and all orders or directions emanating from him or from either of the Executive Departments of the Government to any military commander or civil officer, with reference to the servit'e of the Army, or any por- tion thereof, in the States of Virginia, South Carolina, Louisiana, and Florida, since the 1st of August last, together with reports, by tele- gi-aph or otherwise, from either or any of said military commanders or civil officers.' '"'It Avas immediateh', or soon thereafter, referred to the Secretary of War and the Attorney General, the custodians of all retained copies of " orders or directions ' given b}" the Executive Department of the Government covered by the abov6 inquiry, together with all infor- mation upon which such '" orders or directions ' were given. "The information, it will be observed, is voluminous, and, with the limited clerical force in the Department of Justice, has consumed the time up to the present. Many of the communications accompanying this have l)een already mad(> public in connection with messages here- tofore sent to Congress. This class of information includes the impor- tant documents received from the governor of South Carolina, and sent to Congress with m}- message on the subject of the Haml)urgh massacre; also the documents accompanying my response to the reso- lution of the House of Representatives in regard to the soldiers sta- <:ioned at Petersburgh. " There have also come to me and to the Department of Justice, from time to time, other earnest written communications from persons hold- ing public trusts and from others residing in the South, some of which I append hereto as bearing upon the precarious condition of the i)ub- USE OB^ THE ARMY IN AID OF TfiE CIVIL POWER. 761 lie peace in those States. Tliese communications 1 ha^e reason to regard as made by respectable and responsible men. Many of them deprecate the publication of their names as involving danger to them personally. "The reports heretofore made b.y committees of Congress of the results of their inquiries in Mississippi and in Louisiana, and the news- papers of several States recommending 'the Mississippi plan,' have also furnished imp'^rtant data for estimating the danger to the pulilic peace and order in those States. "It is enough to say that these dift'erent kinds and sources of evi- dence have left no doubt whatever in my mind that intimidation has been used, and actual violence, to an extent requiring the aid of the United States Government, where it was practicable to furnish such aid, in South Carolina, in Florida, and in Louisiana, as well as in Mississippi, in Alabama, and in Georgia. ' ' The troops of the United States have been but sparingly used, and in no case so as to interfere with the free exercise of the right of suf- frage. Very few troops were available for the purpose of preventing or suppressing the violence and intimidation existing in the States above named. In no case except that of South Carolina was the num- ber of soldiers in any State inc^-eased in anticipation of the election, saving that twenty-four men and an officer were sent from Fort Foote to Petersburgh, Va., where disturbances were threatened prior to the election. "No troops were stationed at the voting-places. In Florida and in Louisiana, respectivel3% the small number of soldiers alread}' in the said States were stationed at such points in each State as were uiost threatened with violence, where they might be available as Sujyosse for the officer whose duty it was to preserve the peace and prevent intim- idation of voters. Such a disposition of the troops seemed to me rea- sonable, and justified by law and precedent, while its omission w^ould have been inconsistent with the constitutional duty of the President of the United States 'to take care that the laws be faithfully executed.' The statute expressly forbids the bringing of troops to the polls, ' except where it is necessary to keep the peace,' implying that to keep the peace it may be done. But this even, so far as 1 am advised, has not in any case been done. The stationing- of a company or part of a conipan}' in the vicinity, where they would be availalde to prevent riot, has l)een the only use made of troops prior to and at the time of the the elections. Where so stationed, they could be called, in an emer- gency requiring it, by a marshal or deputy marshal as d posse to aid in suppressing unlawful violence. The evidence which has come to me has left me no groiuid to doubt that if there had been more military force available, it would have been my duty to have disposed of it in several States with a view to the prevention of the violence and intimi- dation which have imdoubtedly contribated to the defeat of the election law in jNIississippi, Alal)ama, and Georgia, as well as in South Carolina, Louisiana, and Florida. "'By Article IV, section 4, of the Constitution, 'The United States shall guarantee to every State in this Union n republican form of government, and on application of the legislature, or of the executive 762 USE OF THE ARMY IN AID OF THE CIVIL POWER. (when the legishxture can not be convened), shall protect each of thein against domestic violence.' "By act of Congress (Rev. Stat., U, S., sec. 1034, 1035) the Presi- dent, in case of 'insurrection in any State,' or of '"unlawful obstruction to the enforcement of the laws of the United States by the ordinar}" course of judicial proceedings,' or whenever 'domestic violence in any State so obstructs the execution of the laws thereof, and of the United States, as to deprive any portion of the people of such State "■ of their civil or political rights, is authorized to employ such parts of the land and naval forces as he may deem necessary to enforce the execution of the laws and preserve the peace, and sustain the authority of the State and of the United States. Acting under this title (69) of the Revised Statutes, United States, I accompanied the sending of troops to South Carolina with a proclamation such as is therein prescribed. "The President is also authorized by act of Congress 'to employ such part of the land or naval forces of the United States ' * * * ' as shall be necessary to prevent the violation and to enforce the due execution of the provisions' of title 2-4 of the Revised Statutes of the United States for the protection of the civil rights of citizens, among which is the provision against conspiracies 'to prevent by force, intimidation, or threat, any citizen who is lawfully entitled to vote, from giving his support or advocac}' in a legal manner toward or in favor of the election of any lawfully qualified person as an elector for President, or Vice-President, or as a member of the Congress of the United States.' (Rev. Stat., U. S., 1989.) "In cases falling under this title, I have not considered it necessary to issue a proclamation to preclude or accompany the employment of such part of the Army as seemed to be necessary. "In case of insurrection against a State government, or against the Government of the United States, a proclamation is appropriate; but in keeping the peace of the United States at an election at which members of Congress are elected, no such call from the State or proc- lamation by the President is prescribed by statute or required by precedent. "In the case of South Carolina, insurrection and domestic violence against the State government were clearlj^ shown, and the application of the governor founded thereon was duly presented, and I could not deny his constitutional request without abandoning m}^ duty as the Executive of the National Government. "The companies stationed in the other States have been employed to secure the better execution of the laws of the United States and to preserve the peace of the United States. "After the election had l)een had. and where violence was appre- hended by which the returns from the counties and precincts ndght be destroyed, troops were ordered to the State of Florida, and those already in Louisiana were ordered to the points in greatest danger of violence. "I have not employed troops on slight occasions, nor in any case where it has not l)een necessary to the enforcement of the laws of the United States. In this I have ])een guided by the Constitution and the laws which have l^een enacted and the prt^cedents which ha\e been formed under it. USE OF THE ARMY IN AID OF THE CIVIL POWER. 763 "It has been necessaiy to employ troops occasionally to overcome resistance to the internal-revenue laws, from the time of the resist- ance to the collection of the whisky tax in Pennsylvania, under Washington, to the present time. "In 1854, when it was apprehended that resistance w^ould be made in Boston to the seizure and return to his master of a fugitive slave, the troops there stationed were employed to enforce the master's right under the Constitution, and troops stationed at New York were ordered to be in readiness to go to Boston if it should prove to l)e necessary. "In 1859, when John Brown with a small number of men made his attack upon Harper's Ferry, the President ordered United States troops to assist in the apprehension and suppression of him and his party, without a formal call of the legislature or governor of Virginia, and without proclamation of the President. '"Without citing further instances, in which the Executive has exercised his power as commander of the Army and Navy to prevent or suppress resistance to the laws of the United States, or where he has exercised like authority in obedience to a call from a State to sup- press insurrection, I desire to assure both Congress and the country that it has been my purpose to administer the executive powers of the Government fairly, and in no instance to disregard or transcend the limits of the Constitution. "U. S. Grant.'' The bill passed the House of Representatives at the second session of the Forty-fourth Congress proposed to reduce the numerical strength of the Army and to prevent its use in support of the claims, or pre- tended claims, of an}^ State government or officer, until such govern- ment should be duly recognized by Congress. The reason assigned for this was the improper use of the Army in the Southern States. Thus, Mr. J. D. C. Atkins, a member from Tennessee, said: "Had the people been allowed without Federal coercion to manage their own affairs since the war, they would have done so much more justly to all concerned and with far greater satisfaction to a very large majorit}' of the people even of the Northern States. " The disrupted condition of society which the war left among other evils as a heritage to the South, and which almost always follows civil wars from necessity, afforded a pretext for the use of the Army in those States. And as the dominant party deterrnined to tear down the old State governments and also the new ones which were set up by President Johnson and enter upon its famous and ill-advised recon- struction policy — and I only speak of it now for the purpose of a his- torical illustration — and to do this were compelled to inaugurate the rotten-borough or carpet-bag system of representation and govern- ment, which required, or they supposed it did, the presence of the Army to make it successful, time, partial success, and habit have ren- dered the use of the Army in the Southern States a seeming necessity 764 USE OF THE ARMY IN AID OF THE CIVIL POWER. to the ruling- authorities at Washington. It is to this use of the Army that I object. It is degrading to the dignity of an American soldier to make a policeman of him; it is insulting to his chivalry and patriot- ism, it is dwarfing his no])le profession to the ignoble level of a Turk- ish Janizary, who never tasted the sweet waters of liberty, but was born and bred beneath the frowning shadows of despotism and thinks it an honor to lick the hand of his master, or but touch the hem of his garment, or die for his defense. "American soldiers policemen! Insult if true, and slander if pre- tended to cover up the tj^rannical and unconstitutional use of the Armj' by protecting and keeping in power tyrants whom the people have not elected; and but for Federal military protection their governments would fall at the first breath of popular expression. The hollow insin- cerity and circumlocution which attended every step of the unconsti- tutional use of the United States Army deserves the scorching denun- ciation of every true soldier and of every lover of his country and of its Constitution. "The process has been to first stifle the lawful will of the people and set up in power these minions of despotism. This has been done by driving at the point of the bayonet the legall}^ elected legislators and ofiicers of those States from power. United States district judges have been invoked to violate the law and issue orders wholly illegal and unconstitutional, under which pretended judicial authority these unpardonable outrages upon civil liberty have been committed. In this manner these pretenders becoming the de facto governments, the President then virtuousl}^ and patrioticall}' responds to their call for troops to protect them in their infamous assumption of authority. When this point is reached the law-abiding Executive, full of devotion to the Constitution and with a heart always yearning for peace, pano- plied with magisterial power, recurs to the fourth section of the fourth article of the Constitution with infinite satisfaction, and forthwith mili- tar}' aid is afforded the men whom he, in violation of the Constitution, first created with his own usurping hand. Such has been the process. "The last section of this bill seems to me to be a very salutary one. It provides that no part of the money appropriated l)y it shall be used in any State to maintain the political power of any State government, but to leave the people of a State perfectly free to regulate their own affairs in their own way. subject to the Constitution of the United States.'' And when the bill was l)efore the Senate Mr. Bayard said: "It is not merely the cost of the Arni}^; it is the question of the ein2)loyiiu'itt of the Army. That is the cause of the deep feeling which pervades the people^ of this country to-day. and which forms the chief USE OF THE ARMY IN AID OF THE CIVIL POWER. 765 difference between the two Houses of Congress in respect to the present bill. It is not worth while to attempt to disguise it; the fact is that a widespread belief exists that the Army of the country has been em- plo3'ed and is still being used for purposes dangerous to the liberties of the country. That forms the objection to the increase of the mili- tary establishment and forms the reasons for the reduction proposed by the Representatives of the people. I only speak of that which w^e all know, which the whole country knows, of the improper uses to which the Army has been put in certain States of the Union during the last few years. '"It is now apparent that the outgoing administration tardily admit this polic}" in the use of the Army to have been a serious mistake and it seems are taking steps to abandon it. We hear something of a sim- ilar suggestion, a faint adumbration of opinion, from the incoming administration that they are in accord with these last expressions of opinion on the part of the present administration. I sincerely hope this may be so. In ni}^ judgment it would have been wisei- had the House of Representatives moved directly, not by way of lessening appropriations, but directly, for the repeal of all those war measures authorizing the use of the Army in the several States which have found place upon our statute books in the last fifteen years. The use of military force of the nation for the execution of the laws should certainly be the very last resort, and not, as of late years, the very first. I hope the day is near at hand when we shall repeal all this military legislation which has sprung up under a semirevolutionary condition of affairs, and permit us to return where the Constitution intended our administration of government should be restricted, only to enforce laws b}^ the militar}^ power as a last resort, and even when the military power was called in in aid of the civil power it was to be the militia of the States, and not the Army of the nation. * * * * * "After all, the cure for such evils must be in the public opinion of an intelligent and courageous people, and that public opinion will practically enforce itself upon the exigencies of the occasion. We know there were emergencies, ten or twelve years ago, which, thank heaven, no longer exist, and there can be no doubt that laws for which there was a pretext or a real cause at that time are no longer the meet and proper laws for a peace establishment. It is not the size of the Army, it is the use to which the Army is applied; it is the extraordi- nary laws under which the Army can be unjustly used and has been used. It is the repeal of those laws that I seek, in order that the country may be put in statu quo ante helium. It is that the use of the military as an aid to civil power should be the very last resort in a 766 USE OB^ THE ARMY IN AID (»F THE CIVIL 1H)WEK. governmetit of laws, and that, under our .system, where the laws are to be enforced in aid of the State, the State militia, and not the Army of the United States, should })e called upon." The Senate passed a substitute for the House bill, leaving- the Army on its existing footing, and omitting the provision restricting its use. The house thereupon refused to concur in the amendments, and the bill failed to become a law; the Army Appropriation Act for the fiscal year ending June 3(tth, 1878, not being passed until November 21st, 1877. Similar debates were had the next A^ear. Mr. Wm. Kimmel, a member from Maryland, then very full}' discussed the subject of the employment of the Army to execute the laws, and offered the follow- ing as an amendment to the Army Appropriation Act: ''' Pnrvlded., That from and after the passage of this act it shall not be lawful to use any part of the land or naval forces of the United States to execute the laws either as a j>o.we comitMus or otherwise, except in such cases as ma}' be expressly authorized by act of Congress" — language sub- stantially the same as that finally enacted, except in one important particular, namely, the recognition by the final enactment of the fact that there is self-acting authority in the Constitution for the employ- ment of the Army. This clause received earnest consideration in the Senate, where it was amended so as to contain such recognition. ''As a matter of course," said Mr. Windom, "you can not limit the power of the President as authorized and granted by the Constitution." The debate was an interesting one, but too long to follow in detail.^ An attempt was made to strike out the word " expressly," but that failed. But, manifestly, the clause as enacted, recognizes the Consti- tution as a direct source of authority for the employment of the Army, This is a very important consideration in the construction of the legis- ation. And another matter of great importance is also to ])e observed with reference to it. The enactment prescribes that it shall be unlaw- ful to employ any part of the Army as a posse comitatus, or otherwise, for the purpose of executing the laws, except when it is ex2)Tessly authorized by the Constitution or by act of Congress. Now, it is evi- dent that the word "expressly" can not be construed as placing a restriction on any i-onstitutional power. If authority so to use the Army is included in a constitutional power, although it be not expressly ' When the >)ill was reported from the conference committee, Mr. Hewitt, of New York, who had charge of it, said: " Thus have we this day secured to the people of this country the same great i)ro- tection against a standing army which cost a struggle of two linndred years for the Commons of England to secure for the British people." A strong expression of the feeling existing at that time. USE OF THE ARMY IN AID OF THE CIVIL POWER. 767 named, it can not, of course, be taken 'away )\y legislation.' So that, ,so far as any such constitutional power is concerned, the clause must be read as though the word "'■ expressly" were omitted. Nor, indeed, would the enactment (jualify future legislation, if it should be mani- fest that the intention of the later legislation is to confer the authority'. But the intention would have to be vevj evident, because the presump- tion would be that the later legislation is intended to be controlled by the earlier. Among the acts of Congress regarded as expressly authorizing the employment of the Army in executing the laws, was the act of Feb- ruarj^ 25, 1865, embodied in section 2002 of the Revised Statutes, forl)idding the use of troops at any place in a State where an elec- tion should be held, unless it should be necessary "''to repel the armed ^ Ex-Attornev General Miller, in a letter to Attorney General Olnev, dated July 11, 1894, said: " _ ' ' Without assuming that what I may say or think is of any special value, I beg to say that what you have done and what you have said, so faras the same has been l)rought to my attention, in connection with the current strike and labor troul:)les, has my cordial commendation and is, as I think, entitled to the approval of all good citi- zens. That the President has the authority and that it is his duty to use the whole power of the Government for the enforcement of the laws of the United States seems to me to be axiomatic. It is made his duty to take care that the laws be faithfully executed. He is made Commander-in-Chief of the Army and Navy. In my judgment, the power thus conferred is given in order that he may execute the duty thus imposed. For this reason, I have always been of the opinion, and so advised President Harrison, that the posse comitatvs statute, in so far as it attempted to restrict the President in using the Army for the enforcement of the laws, was invalid, because beyond the power of Congress; that it was no more competent by a statute to limit the power of the President, as commander-in-chief, to use the Army for the enforcement of the laws than it is competent to limit l^y statute the exercise of the pardoning or apjjointing power. Holding these views, I repeat that I have been gratifieil at the decision and vigor with which the President's power as com- mander-in-chief has been exercised, as 1 think I mav justly assume, under your advice." (H. R. Doc. 9, Part 2, 54th Cong., 2dsess., pi! 108.) Pomeroy divides the executive attributes and functions under the Constitution into three classes, viz: First, those which are completely conferred by the terms of the organic law; secondly, those which depend upon some prior statute of Congress for the opportunities and occasions upon which they may be exercised; and, thirdly, those which depend upon some prior laws of Congress, not only for the opportuni- ties and occasions for their exercise, l)ut for their number, character, and scope. And he says: "So far as the President has executive functions directly conferred upon him, he is independent of C^ongress. It was never intended that the legisla- ture should draw to itself the duty of administering the laws which it makes. There is danger, it can not be doubted, lest the Congress should trench upon the attributes of the Executive. This is not done by interfering with the class of powers first above stated (sees. 63.5, 636) . The subject-matter of these powers lies so plainly beyond the sphere of the legislature, that any assertion of jurisdiction over them is hardly to be anticipated. The tendency, if it exists at all, is to control the President in the exercise of his functions of the second class (sec. 637); or to commit those of the third class (sec. 638) to subordinates, and to limit and restrain the President in any practical exercise over those suV)ordinates, of his power to ' take care that the laws be faithfully executed.' I need hardly say that such legislation is opposed to the spirit of the organic law; and if it became general, would break down the inF THE CIVIL POWER. 769 them iifs a. posse coirdtatus only when they could ))e spared/ Having in mind the independence, and freedom from interference by the States, of the instrumentalities of the Government of the United States, it would appear that the Arm}^ could never have been subject to the summons of the sheriff. But in \dew of the act of Congress of 1878, this question is not now of any practical importance. Called forth by the use of the Arm}^ in the political aii'airs of the Southern States, the legislation of 1878 was given a very general effect, and entirely abolished its use as a posse coinitatus — a very desirable result, it is believed. Further than this, it required that when authority to use the Army in the execution of the laws is given by statute it shall be done in express terms. Legislation of this kind is found in an act of Congress of March 3d, 1807, now covered by the last clause of section 5297 of the Revised Statutes, authorizing the President, on application by the legislature, or governor if the legis- lature can not be convened, to use the land and naval forces to suppress an insurrection in any State against its government. The act of 1807 provided: "That in all cases of insurrection, or obstruction to the laws, either of the United States, or of any indi- vidual State oi' Territory, where it is lawful for the President of the United States to call forth the militia for the purpose of suppressing such insurrection, or of causing the laws to be duly executed, it shall be lawful for him to employ, for the same purposes, such part of the land or naval force of the United States, as shall be judged necessary, having first observed all the prerequisites of the law in that respect." And the act of February 28th, 1795, "to provide for calling forth the militia to execute the laws of the Union," etc., provided: "That whenever the United States shall be invaded, or be in imminent danger of invasion from any foreign nation or Indian tribe, it shall be lawful for the President of the United States to call forth such number of the militia of the State, or States, most convenient to the place of danger, or scene of action, as he may judge necessary to repel such invasion, and to issue his orders for that purpose to such officer or officers of the militia as he shall think proper. And in case of an insurrection in any State, against the government thereof, it shall be lawful for the President of the United States, on application of the^ legislature of such State, or of the executive (when the legislature can not be convened), to call forth such number of the militia of any other State or States, as may be applied for, as he may judge sufficient to suppress such insurrection. '''And * * * whenever the laws of the United States shall be M6 0pin. Atty. Gen., 163. IflOOf)— 01 49 770 USE OF THE ARMY IN AID OF THE CIVIL POWER. opposed, or the execution thereof obstructed, in an}" State, by com- binations too powerful to ))e suppressed by the ordinar}' course of judicial proceeding's, or by the powers vested in the marshals by this act. it shall be lawful for the President of the United States, to call forth the militia of such State, or of any other State or States, as ma}^ be necessary to suppress such combinations, and to cause the laws to be duly executed; and the use of militia so to be called forth may be continued, if necessary, until the expiration of thirt}^ days after the commencement of the then next session of Congress. " ^ ' Attorney General Black, in an opinion dated November 20, 1860, and addressed to President Buchanan, said: "By the act of 1807, j'ou may employ such parts of the land and naval forces as you may judge necessarj', for the purpose of causing the laws to be duly executed, in all cases where it is lawful to use the militia for the same purpose. By the act of 1795, the militia may be called forth 'whenever the laws of the United States shall be opposed, or the execution thereof obstructed in any State, by combinations too l^owerful to l)e suppressed by the ordinary course of judicial proceedings, or by the power vested in the marshals.' This imposes upon the President the sole responsi- bility of deciding whether the exigency has arisen which requires the use of military force, and in proportion to the magnitude of that responsibility w'ill be his care not to overstep the limits of his legal and just auth(jrity. "The laws referred to in the act of 1795 are manifestly those which are adminis- tered by the judges and executed by the ministerial officers of the courts for the punishment of crime against the United States, for the protection of rights claimed under the Federal Constitution and laws, and for the enforcement of such ol)ligatii)ns as come within the cognizance (jf the Federal judi.dary. To compel obedience to these laws the courts have authority to punish all who obstruct their regular admin- istration, and the marshals and their deputies have the same powers as sheriffs and their deputies in the several States in executing the laws of the States. These are the ordinary means provided for the execution of the laws, and the whole spirit of our system is opi>osed to the employment of any other, except in cases of extreme necessity, arising out of great and unusual combinations against them. Their agency must continue to be used until their incapacity to cope with the power opi^osed to them shall be plainly demonstrated. It is only upon clear evidence to that effect that a military force can be called into the Held. Even then, its operations must be purely defensive. It can suppress only such combinations as are found directly opposing the laws and obstructing the execution thereof. It can do no more than what might and ought to be done by a civil jwsse, if a civil posae could be raised large enough to meet the same opposition. On such occasions especially, the military power nmst be kept in strict subordination to the civil authority, since it is only in aid of the latter that the former can act at all." On the 15th of April, 1861, President Lincoln issued a proclamation declaring that the laws of the United States were opposed, and their execution obstructed, in South Carolina, Georgia, Ala])ama, Florida, Mississippi, Louisiana, and Texas by combina- tions too powerful to be suj^pressed by the ordinary course of judicial proceedings, or by the powei'S vested in the marshals by law, and calling forth the militia, to the number of 75,000, to suppress said combinations, and to cause the laws to be duly executed. And on the 3rd of May the President, by an assumption of power not vested in him by the Constitution, issued the following ])roclamation: " Whereas existing exigencies demand immediate and adequate measures for the protection of the national Constitution and tiie i)reservatibn of the national Union by the suj)j)ression of the insurrectionary com) )iiiati()ns now existing in several States for opposing the laws of the Union and ol)structing the execution thereof, to which end a military force in addition to that called forth by my proclamation of the fif- teenth day of April in the present year, ajipears to be indispensal)ly necessary: "Now, "therefore, I, Abraham IJncoln, President of the United States, and Com- mander-in-Chief of the Army and Navy thereof, and of the militia of the several States when called into actual service, do herel)y call into th(> service of tlie United USE OF THE ARMY IN AID OF THE CIVIL POWER. 771 This last section wus repealed l)y act of July 29, 1861, "to provide for the suppression of the rebellion against and resistance to the laws of the United States," etc., in which there was enacted legislation^ now transferred to the Revised Statutes as section 5298, viz: "Whenever, b}' reason of unlawful obstructions, combinations, or assemblages of persons, or rebellion against the authority of the Gov- ernment of the United States, it shall become impracticable, in the States forty-two tliousand and thirty-four volunteers, to serve for the period of three years unless sooner discharged, and to be mustered into service as infantry and cavalry. The proportions of each arm and the details of enrollment and organiza- tion will be made kn(nvn through the Department of War. "And I also direct that the regular army of tlie United States be increased by the addition of eight regiments of infantry, one regiment of cavalry, and one regiment of artillery, making altogether a maximum aggregate increase of twenty-two thou- sand seven hundred and fourteen, officers and enlisted men, the details of which increase will also l^e made known through the Department of War. " And I further direct the enlistment for not less than one or more than thi-ee years, of eighteen thousand seamen, in addition to the present force, for the naval service of the United States. The details of the enlistment and organization will be made known through the Department of the Navy. "The call for volunteers, hereby made, and the direction for the increase of the regular army, and for the enlistment of seamen hereby given, together with the plan of organization adopted for the volunteers and for the regular forces hereby authorized, will be submitted to Congress as soon as assembled. "In the meantime I earnestly invoke the cooperation of all good citizens in the measures hereby adopted, for the effectual suppression of unlawful violence, for the impartial enforcement of constitutional laws, and for the speediest possible restoration of peace and order, and, with these, of happiness and prosperity throughout the country." ^ The following extract from a speech of Stephen A. Douglas, delivered in the Senate. March 15th, 1861, explains the necessity for this legislation; for if Stephen A. Douglas's view was correct, the President stood sorely in need of further power: "But we are told that the President is going to enforce the laws in the seceded States. How? By calling out the militia and using the Army and Navy! These terms are used as freely and as flippantly as if we were in a military Government where martial law was the only rule of action, and the will of the monarch was the oidy law to the subject. Sir, the President can not use the Army, or the Navy, or the militia, for any purpose not authorized by law; and then he must do it in the manner, and only in the manner, prescribed by law. AVhat is that? If there he an insurrection in any State against the laws and authorities thereof, the President can use the mili- tary to put it down only when called upon by the State legislature, if it be in session, or, if it can not be convened, by the governor. He can not interfere except when requested. If, on the contrary, the insurrection be against the laws of the United States instead of a State, then the President can use the military only as a posse comitatus in aid of the marshal in such cases as are so extreme that judicial authority and the power of the marshal can not put down the obstruction. The military can not l)e used in any case whatever except in aid of civil process to assist the marshal to execute a writ. I shall not quote the laws upon this subject; but if gentlemen will refer to the acts of 1795 and 1807, they will find that under the act of 1795 the militia only could be called out to aid in the enforcement of the laws when resisted to such an extent that the marshal could not overcome the obstruction. By the act of 1807, the President is authorized to use the Army and Navy to aid in enforcing the laws in all cases where it was before lawful to use the militia. Hence the military power, no matter whether Navy, regulars, volunteers, or militia, can be used only in aid of the civil authorities. "Now, sir, how are you going to create a case in one of these seceded States where the President would be authorized to call out the military? You must first procure a writ from tbe judge describing the crime; you must place that in the hands of the marshal, and he must meet such obstructions as render it impossible for him to execute it; and then, and not till then, can you call upon the military." 772 USE OF THE ARMY IN AID OF THE CIVIL POWER. judg-ment of the President, to enfoive. hy the ordinaiT course of judicial proceedings, the laws of the United States within an}" State or Territory, it shall be lawful for the President to call forth the militia of any or all the States, and to eniploy suc^h parts of the land and naval forces of the United States as he may deem necessary to enforce the faithful execution of the laws of the United States, or to suppress such rebellion, in whatever State or Territory thereof the laws of the United States may be forcibly opposed, or the execution thereof forcibly obstructed," Of the legislation intended to invest the President with authority to make use of the Army in the execution of the laws this is the most frequently appealed to. In 1878. after the passage of the legislation of that year, above cited. Attorney General Devens gave his opinion that under section 5298 the President might use the Army to suppress "organized, armed and fortified resistance to the collection of internal revenue in Baxter County, Arkansas;"^ and in the same year the Pres- ident issued his proclamation warning all persons in the Territory of New Mexico to desist from the obstruction of the laws of the United States, which by reason of unlawful assemblages and combinations of persons in arms it had ])ecome impracticable to enforce by the ordi- nary course of judicial proceedings — such proclamation being by law required before the military forces could be used. In 1882, it appearing that the enforcement of the laws in the Ter- ritory of Arizona was "obstructed and resisted to such a degree by powerful combinations of outlaws and criminals, with whom even some of the local oflicers are alleged to be in league, that a state of lawlessness bordering on anarchy may be said to prevail," Attorney General Brewster held that the contingency was amply provided for by section 5298." In 1889, Attornej^ General Miller, in an opinion relating to resist- ance to the enforcement of the laws in Indian Territory, said that it was certainly competent for the President, under section 5298, to direct the military forces to render such aid to the marshal, upon his request, as might be necessary to enable him to maintain the peace and enforce the laws of the United States in the Territory. '* In 1892, the President issued a proclamation declaring that b}^ reason of unlawful obstructions, combinations, and assemblages of persons, it had become imprac-ticable to enforce by the ordinary course of judicial proceedings the laws of the United States within the District of Wyoming, the United States marshal being unable to execute the ' 16 Opin. Atty. Gen., 162. ^ 17 id., 333. » 19 id., 293. USE OF THE ARMY IN AID OF THE CIVIL POWER. 773 process of the courts, and commanding- all persons engag-ed in resist- ance to the laws and the process of the United States courts to disperse.* On the 8th of July, 1894, the President issued the following procla- mation : ''Whereas, by reason of unlawful obstructions, combinations and assemblages of persons, it has become impracticable in the judgment of the President to enforce by the ordinar}^ course of judicial proceed- ings, the laws of the United States within the State of Illinois and especially in the city of Chicago within said State; '■''And, whereas, for the purpose of enforcing the faithful execution of the laws of the United States and protecting its property and remov- ing obstructions to the United States mails in the State and city afore- said, the President has employed a part of the military forces of the United States; "Now, therefore, I, Grover Cleveland, President of the United States, do hereby admonish all good citizens and all persons who may be or may come within the city and State aforesaid, against aiding, countenancing, encouraging, or taking any part in such unlawful obstructions, combinations and assemblages; and I hereb}' warn all persons engaged in or in any way connected with such unlawful obstruc- tions, combinations and assemblages to disperse and retire peaceably to their respective abodes on or before twelve o'clock noon on the ninth d'AV of July instant. "Those who disregard this warning and persist in taking part with a riotous mob in forcibly resisting and obstructing the execution of the laws of the United States, or interfering with the functions of the Gov- ernment or destro3"ing or attempting to destroy the property belonging to the United States or under its protection, can not be regarded other- wise than as pul)lic enemies. "Troops employed against such a riotous mol), will act with all the moderation and forbearance consistent with the accomplishment of the desired end; but the stern necessities that confront them will not with certainty permit discrimination between guilty participants and those who are mingled with them from curiosity and without criminal intent. The only safe course therefore for those not actually unlaw- fully participating is to abide at their homes, or at least not to be found in the neighborhood of riotous assemblages. ''While there will be no hesitation or vacillation in the decisive treatment of the guilty, this warning is especially intended to protect and save the innocent." And on the 'Jth of Jul}' the President issued the following procla- mation : "Whereas, by reason of unlawful obstructions, combinations and asseml)lages of persons, it has become impracticable in the judgment of the President, to enforce by the ordinary course of judicial proceed- ings the laws of the United States at certain points and places within the States of North Dakota, Montana, Idaho, Washington. Wyoming. ^See Winthrop's Military Law and Precedents, ji. lool. 774 USE OF THE ARMY IN AID < »F THE CIVIL POWER. Colorado, and California and the Territories of Utah and New Mexico, and especiall}^ along the lines of such railways traversing said States and Territories as are military roads and post routes and are engaged in interstate commerce and in carrying United States mails: "And, whereas, for the purpose of enforcing the faithful execution of the laws of the United States, and protecting property belonging to the United States or under its protection, and of preventing obstruc- tions of the United States mails and of commerce between the States and Territories, and of securing to the United States the right guar- anteed ])y law to the use of such roads for postal, military, naval, and other government service, the President has employed a part of the military forces of the United States; ''Now, therefore, I, Grover Cleveland, President of the United States, do hereby command all persons engaged in, or in any way con- nected with such unlawful obstructions, combinations and assemblages, to disperse and retire peaceabh' to their respective abodes on or before 3 o'clock in the afternoon, on the tenth day of July instant." It deserves notice that, as appears by the proclamation of July 8th itself, the military forces were called into use before the proclamation was issued. Whenever, in the judgment of the President, it becomes necessary to use the military forces under the title of the Kevised Statutes to which section 5298 belongs, he is required, by section 5300, to issue his proclamation commanding the insurgents to disperse and retire peaceabl}^ to their respective abodes Avithin a limited time. But it might be that the object of the employment of troops would not be the dispersal of insurgents but the overcoming and arrest of persons violating and defying the laws and judicial proceedings of the United States, or the protection of the instrumentalities of the United States, such as its treasury or mails, and that the immediate use of the troops would be necessary. This suggests the important question whether there is not authority for the use of the Army in the execution of the laws other than that which is derived from the Constitution through the medium of statutes.^ ^The different acts of legislation authorizing the emploj'ment of troops in the enforcement of the laws are given in the Army regulations (Article LII). See algo Davis's Military Laws, Chapter XXXVIII, and Winthrop's INIilitary Law and Precedents, page 1347, et xrq. The act of 1S78 and the constitutional and statutory provisions understood to he excepted from its prohibition were published to the Army in a general order from the headquarters of the Army, a provision of which required that applications for the use of troops should be forwarded for the action of the President. This was sub- sequently modified by the War Department in the followins instructions to General Ord: " In an ciiKrc/rucn a commander is authorized to disregard the long comnumications through intermediate channels, and may telegrai)h direct to the Adjutant General. "The ]j()sser())iiit(itiix law is not supposi'd to aitjily to repelling invasions of foreigners against United States territory, nor to protection of T'nited States proj^erty against violence. As a citizen may defend his house against a robber, so the United States may defend its treasury, mails, etc., against lawless violence." To which (ieneral Grd added: "As it is imiiossible to protei-t United States jiroperty without ]>rotecting the offi- USE OF THE ARMY IN AID OF THE CIVIL POWER. 775 The Constitution of the United States requires that — "The United States shall guarantee to every State ^ in this Union a republican form of government, and shall protect each of them against invasion; and on application of the legislature, or of the executive, (when the legislature cannot be convened,) against domestic violence." There are here three guaranties — the guaranty of a republican form of government, the guaranty against invasion, and the guaranty against domestic violence. It is important to keep this in mind in considering who is meant by the United States, because it seems to have been too readily assumed that, with reference to each of these guaranties, '"'■ The United States'' means Congress only, and that therefore Congress must give life to each of them by legislation. In the case of Texas v. White, ^ the Supreme Court held with reference to the government set up by the executive department in Texas after the rebellion, and speaking of the guaranty clause of the Constitution, as follows: ''It is not important to review at length the measures which have been taken, under this power, by the executive and legislative depart- ments of the National Government. It is proper, however, to observe that almost immediately after the cessation of organized hostilities, and while the war yet smoldered in Texas, the President of the United States issued his proclamation appointing a provisional governor for cers in charge, in the view of the department commander the preceding paragraph authorizes the protection of an officer of tlie United States, civil or miUtary, from violence by lawless bands, while in the execution of his office." (Circular No. 18, 1878, Department of Texas.) In 1879, two officers of the Army were indicted in Texas for assisting the United States marshal with troops in arresting persons for violations of the revenue laws. ^The M'ord " State" as used here has been construed to include an organized Ter- ritory. At the time of the violent disorders in New Mexico, in 1878, the governor of the Territory applied to the President for protection, but the proclamation which was issued by the President shows that the use of troops was not based on this guar- anty, but on the power given him by the statute, to use the land and naval forces to enforce the execution of the laws of the United States, when by reason of unlawful obstructions, combinations or assemblages of persons, or rebellion against the author- ity of the Government of the United States, it becomes impracticable to enforce the laws of the United States within any State or Territory by the ordinary course of judicial proceedings. It was at that time held that the word "State," as used in the guaranty clause, does not include a " Territory," Init this view has not since then been adhered to. Thus, President Clevelaud. on the 7th of Noveml;er, 1885, issued his proclamation on the representation of the governor of the Territory of Washington that domestic violence existed in' that Territory, etc., and on the 9th of February, 1886, he issued a similar jtrociamation, also on the application of the governor of the Territory of Washington. So, also, the governor of the Territory of Wyoming, having (in 1885) telegraphed to the Secretary of War, with reference to the l)rutal attack on the Chinese employed as miners by the Union Pacific Railway Comjiany, that the county authorities were powerless, that the Territory had no militia, and tliat he had apjilied to (Tcneral Howard, at Omaha, for military aid, he was informed that before it could l)e given lie must make application to the President in the manner indicated in the Constitution. The President in these cases evidently based his action on a construction of the word "State" sufficiently broad to include inchoate States or organized Territories. See also Pasclial's Ann. Const., p. 242. - 7 Wallace, 700, 729. 776 USE OF THE ARMY IN AID OF THE CIVIL POWER. the State, and providing for the assembling of a convention, with a view to the reestablishment of a republican government, under an amended constitution, and to the restoration of the State to her proper con- stitutional relations. A convention was accordingly assembled, the constitution amended, elections held, and a State government, acknowl- edging its obligations to the Union, established. ""Whether the action then taken was, in all respects, warranted by the Constitution, it is not now necessary to determine. The power exercised by the President was supposed, doubtless, to be derived from his constitutional functions, as commander-in-chief; and. so long as the war continued, it can not be denied that he might institute tem- porary government within insurgent districts, occupied by the National forces, or take measures, in any State, for the restoration of State government faithful to the Union, employing, however, in such efforts, only such means and agents as were authorized by constitutional laws. "But, the power to carry into effect the clause of guaranty is pri- marily a legislative power, and resides in Congress. ' Under the fourth article of the Constitution, it rests with Congress to decide what gov- ernment is the established one in a State. , For, as the United States guarantee to each State a republican government. Congress must nec- essarily decide what government is established in the State, before it can determine whether it is republican or not.' "This is the language of the late Chief Justice, speaking for this Court, in a case from Rhode Island,^ arising from the organization of opposing governments in that State. And, we think that the principle sanctioned by it may be applied, with even more propriety, to the case of a State deprived of all rightful government, by revolutionary vio- lence; though necessarily limited to cases where the rightful govern- ment is thus subverted, or in imminent danger of being overthrown by an opposing government, set up by force within the State. "The action of the President must, therefore, be considered as pro- visional, and, in that light, it seems to have been regarded by Congress." The period to which this decision relates was not one of normal con- ditions. It was a period following a war. And the localit}' to which it relates had been a State in rebellion. Under these circumstances, the immediate restoration of the Constitution to its full force was, doubtless, impossible. The power exercised by the President might, therefore, be justified on the ground of necessity — the necessity of establishing some temporary government — and this seems to have been in the minds of the Supreme Court. But their decision does not go to ' Luther v. Borden, 7 Howard, 42. USE OF THE ARMY IN AID OF THE CIVIL POWER. 777 the extent of .sayino- that under other conditions the President would not, in the absence of any action by Congress, have had devolved upon him a duty under the guaranty clause of the Constitution. That "the power to carry into effect the clause of guaranty is primarily a legislative power" is not questioned, but that ''The United States,"'' as that designation is used in the guaranty clause, means Congress onh", and can never under anj^ circumstances mean the President, is believed to be a quite untenable position, and does not seem to have been intended by the Supreme Court. The fact that the power is vested primarily in Congress is not equivalent to saying that it is vested exclusively there, and that therefore the President can have no power under this clause of the Constitution, even though Congress -should fail to legislate. Moreover, the Supreme Court, in the case of Texas v. White, was discussing the power of the President only as to one of the three guar- anties — the guaranty of a republican form of government, and if we were to construe the language of the court to mean that Congress alone has jurisdiction, it would become a question whether we should apply the same principle to the guarant}" against invasion and domestic vio- lence. These three guaranties are in the same clause, and "The United States" are required to furnish them all. But it can not be said, nor would it be practicable, nor as to the guaranty against domestic vio- lence historically true, that the guaranties against invasion and domes- tic violence are exclusively in the hands of Congress. To hold that would be to destroy the value of these guaranties. They are not limited in time to the sessions of Congress, but are intended to be effective at all times. Who, then, is to furnish the guaranty when Congress is not in session i And, further, the power to furnish the protection guaranteed involves the power to command, which the President, as commander-in-chief, has over the military forces. Congress can not exercise this power, and therefore, in order that it shall be exercised, "The United States" must be held to appl}^ to the President, as w^ell as to Congress. In the case of Luther v. Borden ^ it was said that it is not a judicial, ])ut a political, question whether a certain government is the dul\^ constituted government of a State, and that under the guaranty clause of the Constitution it rests with Congress to decide what government is the estalilished one in a State, and that as to that part of the clause which relates to domestic violence it also rests with Congress to deter- mine upon the means proper to be adopted to fulhll the guarantv. It was held to be a political and not a judicial power. Congress might, ^ 7 Howard, 1. 778 USE OF THE ARMY IN AID OF THE CIVIL POWER. it was said, if it had deemed it advisable, have placed it in the power of a court to decide when the contingency had happened which required the Federal government to interfere. But Congress thought other- wise, and no doubt wisely; and by the act of February 28, 1795, pro- vided, that "in case of any insurrection in any State against the gov- ernment thereof, it shall be lawful for the President of the United States, on application of the legislature of such State or of the execu- tive, when the legislature can not be convened, to call forth such num- ber of the militia of any other State or States, as may be applied for, as he may judge sufficient to suppress such insurrection,'' — thus giving to the President the power to decide whether the exigency has arisen upon which the Government of the United States is bound to interfere. There was no question in this case as to whether, in the absence of any action by Congress, a duty might not under the guaranty clause devolve on the President. As one of the ways in which a republican government, once established in a State, may be endangered or set aside. Judge Cooley mentions the hostile action of some foreign power in taking military possession of the territory of the State and setting up some government therein not established b}' the people themselves. And in this connection it is to be remembered that the second guaranty is against invasion. But Congress has not authorized the President to employ the Army in repelling invasion. It has authorized him to call forth the militia, but has remained silent as to the Army. Can it be for an}' other reason than that he already has the power? Would it not have been an absurdity for Congress to have given the commander- in-chief of the Army permission to use it to repel invasion?^ By the Constitution, said Mr. Justice Grier, in the Prize Cases (2 Black., 635), Congress alone has the power to declare a national or foreign war. It cannot declare war against a State or any numl)er of States, by virtue of an}^ clause in the Constitution. The Constitution confers on the President the whole executive power. He is bound to ' If, indeed, the use of the Army were to be limited to such purposes as might be v its legislation, but. if it should fail to legislate, would the constitutional obligation of the United States be any the less ? And if the President has the actual power to give this constitutional protection, will it not, in case of the failure of Congress to furnish it, rest with him to do so? His power and dut}" seem clear, but he must of necessity exercise his discretion in determining the existence of the conditions demanding this protection. He can not delegate his discretion to the legislatures or executives of States, and thus become a volitionless instrument in their hands. But the guaranty clause of the Constitution is not the only consti- tutional provision which clothes the Executive with the power to use force in the execution of law. If his power were limited to w^hat this clause empowers the Federal government to do, it would be inade- quate for some of the purposes for which it may be required. It is a guaranty to the States of a republican form of government and against invasion and domestic violence, but it does not vest the Federal execu- tive with the power to enforce the laws of the United States. This power, if it exists at all as a power derived directly from the Consti- tution, must be found elsewhere in that instrument. By the Constitu- tion, the "executive power is vested in a President of the United States of America," whose duty it is made to " take <^are that the laws be faithfully executed." Can it be said that the duty thus imposed is lifeless, without the help of Congress, because the Constitution has not given him a corresponding power? In the Neagle case^ the Supreme Court say: "The Constitution, section 8, Article II, declares that the President ' shall take care that the laws be faithfully executed,' and he is pro- vided with the means of fulfilling this obligation by his authority to commission all the officers of the United States, and, by and with the advice and consent of the Senate, to appoint the most important of them and to fill vacancies. He is declared to be commander-in-chief of the Army and Navy of the United States. The duties which are thus imposed upon him he is further enabled to perform l^y the recog- nition in the Constitution, and the creation by acts of Congress, of executive departments, which ha^'e varied in number from four or rive to seven or eight, the heads of which are familiarly called cabinet ministers. These aid him in the performance of the great duties of his office, and represent him in a thousand acts to which it can hardly be supposed his personal attention is called, and thus he is enabled to 1135 U. S., 1. USE OF THE ARMY IN AID OF THE CIVIL POWER. 781 fulfill the duty of his g-reat department, expressed in the phrase that ' he shall take care that the laws be faithfully executed. ' "Is this dut}' limited to the enforcement of acts of Congress or of treaties of the United States according- to their express terms ^ or does it inchide the rights, duties, and obligations growing out of the Consti- tution itself, our international relations, and all the protection implied b}' the nature of the government under the Constitution?" And, illustrating these remarks, the Supreme Court refer to the Martin Koszta case and ask. Upon what act of Congress then existing can anyone la}^ his finger in support of the action of our Goveriunent in this matter? and. Who can doubt the authority of the President to protect the mail, "whether it be by soldiers of the Army or by mar- shals of the United States?'' and. Has he no power, in the absence of legislation by Congress, of protecting the public lands from depredation ? The court say that they can not doubt the power of the President to take measures for the protection of a judge of one of the courts of the United States, who, while in the discharge of the duties of his ofiice, is threatened with a personal attack which nvciy probabl}- residt in his death, and that the}^ think it clear that where this protection is to be afi'orded through the civil power, the Department of Justice is the proper one to set in motion the necessary means of protection. "That there is,'' say the court, "a peace of the United States; that a man assaulting a judge of the United States while in the discharge of his duties violates that peace; that in such case the marshal of the United States stands in the same relation to the peace of the United States which the sheriff of the county does to the peace of the State of Cali- fornia; are questions too clear to need argument to prove them." And in Ex parte Siebold,^ the same court said: "It is argued that the preservation of peace and good order in society is not within the powers confided to the Government of the United States, but belongs exclusively to the States. Here again we are met with the theory that the Government of the United States does not rest upon the soil and territory of the country. We think that this theory is founded on an entire misconception of the nature and powers of that Government. We hold it to be an incontrovertible principle, that the Government of the United States may, by means of physical forc(\ exercised through its official agents, execute on every foot of American soil the powers and functions that belong to it. This neces- sarily involves the power to conunand obedience to its laws, and hence the power to keep the peace to that extent." The Supreme Court was not here speaking of the President's power '100 U.S., 394. 782 USE OF THE ARMY IN AID OF THE CIVIL POWER. to use the Arm}' in aid of the civil power in the execution of the laws. But, it being his dut}' to take care that the laws are faithfully executed, does not what the court say lead us to the recognition of his power to resort to the other means which the Constitution has placed in his hands for enforcing obedience to the laws of the United States when the civil power fails? "The power and duty imposed on the President to 'take care that the laws are faithfully executed,' necessarily carries with it all power and authoritv necessary to accomplish the object sought to be attained."' "Where the law directs a thing to be done without saving how, that implies the power to use such means as may be necessary and proper to accomplish the end of the legislature."' In the case of Logan v. United States,^ the Supreme Court held that a citizen of the United States, in the custody of a United States marshal under a lawful commitment to answer for an offense against the United States, has the right to be protected by the United States against lawless violence; that this right is secured to him b}' the Con- stitution and the laws of the United States; and that a conspiracy to injure or oppress him in its free exercise or enjoyment is punishable under section 5508 of the Kevised Statutes. The court said that every right, created b}", arising under, or dependent upon, the Constitution of the United States, mav be protected and enforced by Congress by such means and in such manner as Congress, in the correlative duty of protection, or of the legislative powers conferred upon it by the Con- stitution, may in its discretion deem most eligible and best adapted to attain the oljject; that in the case at bar, the right in question did not depend upon any of the amendments of the Constitution, but arose out of the creation and establishment by the Constitution itself of a national government, paramount and supreme within its sphere of action; that any government which has power to indict, try and punish for crime, and to arrest the accused and hold them in safe-keeping until trial, must have the power and the duty to protect against unlaw- ful interference its prisoners so held, as w^ell as its executive and judi- cial officers charged with keeping and trying them. And the court cite the decisions in the Neagle and Sie})old cases, in the former of which, sa,v the court, "it was held that, although there was no express act of Congress authorizing the appointment of a deputy marshal or other officer to attend a justice of this court while traveling in his circuit, and to protect him against assault or injury, it was within the power and duty of the Executive Department to protect a judge of any of the courts of the United States, when there was just reason to believe that he would be in personal danger while executing the duties 'U. S. Cir. Court, in the Neagle case, 39 Fed. Rep., 833. '^Attorney General Black, 9 Opin., 519. ^144 U. 8., 263. USE OF THE ARMY IN AID OF THE CIVIL POWER. 783 of his office;" and in tlie latter of which cases it was held "to be an incontrovertible principle, that the Government of the United States may, by means of physical force, exercised through its official agents, execute on every foot of American soil the powers and functions that belong to it." And, again, the Supreme Court say: ''If all the inhabitants of a State, or even a great body of them, should combine to obstruct interstate commerce or the transportation of the mails, prosecutions for such offences had in such a communit}- would be doomed in advance to failure. And if the certainty of such failure was known, and the National government had no other way to enforce the freedom of interstate commerce and the transportation of the mails than by prosecution and punishment for interference there- with, the whole interests of the nation in these respects would be at the absolute mercy of a portion of the inhabitants of that single State. ''But there is no such impotency in the National government. The entire strength of the nation maj" be used to enforce in any part of the land the full and free exercise of all national powers and the secur- ity' of all rights entrusted by the Constitution to its cares. The strong arm of the National government may be put forth to brush away all obstructions to the freedom of interstate commerce or the transporta- tion of the mails. If the emergencv arises, the Arm}- of the nation, and all its militia, are at the service of the nation to compel obedience to its laws. '"But passing to the second question, is there no other alternative than the use of force on the part of the executive authorities when- ever obstructions arise to the freedom of interstate commerce or the transportation of the mails? Is the Arm}' the only instrument by which rights of the public can be enforced and the peace of the nation preserved ? " ^ And Justice Brewer, delivering the opinion of the court, then pro- ceeds to the consideration of the power of the courts to remove or restrain obstructions to the passage of interstate commerce and the carrying of the mails. So, when the enactment of 1878 was under discussion in the Senate, Mr. Edmunds said: "It is a rather singular statute to pass, to sa}^ that the Arnn' of the United States shall not be used for the purpose of executing the laws — that is, of course, the laws of the United States — under any circumstances unless specificallj' authorized by an act of Congress or the Constitution. Now take the Constitution first; the Constitution says that the President of the United States shall be com- mander-in-chief of the Arm}' and Navy; it says in the next place that iJn re Debs, 158 U. S., 581. 784 USE OF THE ARMY IN AID OF THE CIVIL POWER. he shall take care that the hiws are faithfully executed; that i.s, all laws. Then the question at once arises whether under the Constitution of the United States, saying no more, it being the duty of the President to take care that the laws ai'e faithfully executed and he being com- mander-in-chief of the Army, the Constitution does not expressly authorize him to use the Army whenever power is lawfully to be required to execute the laws,'' And President Cleveland, replying, July 5th, 1894, to Governor Altgeld's protest against his use of United States troops in Chicago, said: "Federal troops were sent to Chicago in strict accordance with the Constitution and laws of the United States, upon the demand of the Post Office Department that obstruction of the mails should be removed, and upon the representations of the judicial officers of the United States that the process of the Federal courts could not be executed through the ordinary means, and upon competent proof that conspiracies existed against commerce between the States. To meet these conditions, which are clearly within the province of Federal authority, the presence of Federal troops in the city of Chicago was deemed not onl}" proper, but necessary, and there has been no intention of thereby interfering with the plain duty of the local authorities to preserve the peace of the city." The course pursued at this time, under instructions from the Attornej'^ General, was to file a bill in equity for an injunction against any com- bination in restraint of interstate commerce, or interference with the performance of the duties of railroads as common carriers under the interstate commerce act, or conspiracy to obstruct or retard the pas- sage of United States mails or the operation of the regular trains carry- ing them, that might exist, and, when such restraining oi'der was not enforcible by the marshal in the ordinary' manner, to enforce it by the military power of the Government, on certification of the facts to the authorities at AVashington. Troops, when thus used, were not under the marshal, nor a part of the marshal's force or posse, but were a sub- stitute therefor, and were under the command of the military officer in charge, to be used for the purposes named. ^ But it may happen that the use of troops will be required in antici- pation of forcible resistance to the law, which, if it should reach tliat stage, they might be employed in putting down. Their mere presence, for the purpose of overawing the lawless and preventing the conmiis- sion of the unlawful act, may be very desirable. It is, of course, better to prevent the crime than to wait until it is committed and 'See correspondence relative to the Chicago disorders, pubUshed as^ an Appendix to the Annual Report of the Attornev Cieneral, for 1896. H. R. Doc. No. 9, i)art 2, 54th Cong., 2d yes^H., ])p. 20, 24, 19,'^, etc. USE OF THE ARMY IN AID OF THE CIVIL POWER. 785 injury Is done. Unquestionably the Government has a right to pro tect itself in this wslj. It would, indeed, be absurd to say that although, when the execution of the laws is obstructed by organized resistance too powerful to suppress by the ordinary course of law, the Army may be used in aid of the civil power, nevertheless it may not be used in such a way as, by its presence, to render unnecessary a resort to force against lawbreakers. Is the Government so impotent that it must wait for the crime to be couimitted, its instrumentalities obstructed, its propert}^ destroyed, before it can act? May it not pro tect its instrumentalities and property against a threatened danger, by the simple presence of the military power ^ It has often happened that the presence of a military force has had this effect, and it does not seem possible to doubt that it may lawfully be used for such pur- pose. We are not here speaking of its active use in aid of any civil process, but simply of the protection which the mere fact of its pres- ence gives to instrumentalities and property of the United States which the United States has the right to protect. This right of pro- tecting by the presence of troops undoubtedly exists, equally with the right to use active force when the resistance to the law makes it nec- essary. It is an exercise of the same power — the power to take care that the laws are faithfull}^ executed — which the Supreme Court recognized in the Neagle case as authorizing the use of means, not expressly provided by statute, for the protection of its justices travel- ing on circuit. The power to use the Army to give protection by its presence is, indeed, inseparable from the power to protect by active force. It would not exist without the latter. In a recent (1897) case troops were used at the Tongue River Indian Agency in Montana, for the purpose of escorting a sheriff with an Indian prisoner, charged Avith murder, from the agency to the railway, some distance off, there being reason to fear that the settlers in the neighborhood would take him from the sheriff" and lynch him. This was done by the military connnander on the spot, without any express authority for such use of the troops. It was a case where the presence of the troops, or a show of force, was used to protect a prisoner, who had surrendered to the militar}' authority and had been transferi'ed to the civil authority, against a great danger, and until it was past. Who will say that the military commander exceeded his authoritj^ ? ^ ^ The Army Regulations prescribe that, if time will admit, applications for the use of troops must be forwarded for the consideration and action of the President, but in case of sudden and unexpected invasion, insurrection, or riot, endangering the public property of the United States, or in case of attempted or threatened robbery or inter- ruption of the United States mails, or other equivalent emergency so imminent as to render it dangerous to await instructions requested through the speediest means of communication, an officer of the Army may take such action before the receipt of instru('tions as the circumstances of the case and the law under which he is acting may justify. 1 miH) — 01 —.50 786 USE OF THE ARMY IN AID OF THE CIVIL POWER. It was at one time suggested to the Attorne}^ General that if the mob in Chicago should again seriously interfere and prevent the enforce- ment of the United States laws, martial law should be proclaimed. But he, evident!}', did not believe that this could be done under the existing circumstances, although he seems to have been of the opinion that the United States could proclaim martial law if the governor of Illinois should invoke Federal aid and thus put the United States in complete control of the situation.^ ""Martial law," however, is not anything that is provided for by the Constitution. It is founded in necessity, attendant on the fact of war. When opposition to the laws of the United States amounts to war, there will be a justification for martial law in the locality of the war or where it is necessary. But when the opposition falls short of war, the use of the military power under the authoritj- of the Constitution and the laws would be limited, as it was in 1894, to the purpose of removing the particular obstruc- tion which has sprung up, and enforcing the laws obstructed. "Mar- tial law " means much more than this. When martial law prevails, the civil power is superseded by the military power; the military power becomes supreme; the safeguards of the Bill of Rights of the Consti- tution are for the time being set aside; and the civilian may be tried by military commission. This would not be the military power acting in aid of the civil power. Nor would the conditions existing in 1894 have been a justification for it. Only a condition of war would be. "When the regular course of justice is interrupted by revolt, rebellion, or insurrection, so that the courts of justice can not be kept open, civil war exists, and hostilities may be prosecuted on the same footing as if those opposing the Government were foreign enemies invading the land."^ But when the military power is acting under the Consti- tution in aid of the civil power, and the opposition to the law is not of such a character that war exists, the civil power is still supreme, and the rule of war can not be applied.^ ^ See page 77 of the publication named in note 1, p. 784, ante. 2 The Prize Cases, 2 Black, 668; Ex parte MilHgan, 4 Wall., 2; also North American Review, November, 1896, on The Justification of Martial Law. ^ But, although the rule of war can not be applied so as to displace the civil power under such circumstances, these circumstances may give rise to emergencies justify- ing an exercise of power for which there would otherwise be no justification. When the Pennsylvania militia were called out in 1892 for the suppression of the Home- stead riots, the understanding between the sheriff and the commander of the troops was that the troops would support the sheriff in the nature of a posse comitatus, but the commander was to retain command of them, to employ military methods in put- ting down opposition to the sheriff, and to use them in his own way; and he reserved to himself full liberty, subject to the approval of the commander-in-chief, to take such action in cases of emergency as circumstances might warrant. (Annual report of Major General Snowden, commanding Division, N. G. P., 1892.) In the charge of the Chief Justice of Pennsylvania to the jury in the case of Com. V. Hawkins and Streator, generally spoken of as the lams case (lams being a militia- USE OF THE ARMY IN AID OF THE CIVIL POWER. 787 Remarking on a passage in Russell on Crimes, where it is said that for private persons to make use of arms in suppressing riots would seem only proper against such riots as "savour of rebellion,'' Finlan- man who had been punished without trial, on account of an exclamation he had made showing his sympathy with the rioters, and had thereupon prosecuted the military oflBcers who had caused him to be so punished), he held that, under the cir- cumstances, the relation between the officers and the soldiers under their command " were governed by the same rules that would prevail in case of actual war," the only difference being one arising out of the difference in surroundings, and which in the case at bar made it the duty of the jury to determine whether the officers order- ing the punishment were actuated by improper motives; but that the jury had noth- ing to do with the question whether war actually existed between the armed body and the inhabitants surrounding them. The trial resulted in the acquittal of the defendants. Commenting on this case, the commanding general of the Pennsylvania militia remarked, in his annual report for 1892, that, while it had been hoped that the court would affirm a plea to the jurisdiction, the result was highly satisfactory, since a full trial in open court showed the features of the case to have "been greatly exaggerated in the community, and resulted in a verdict of acquittal at the hands of a jury of the county, and "the law as laid down justifies an officer in an emergency, in time of riot or rebellion, actual war, as this was, in using extreme measures to preserve dis- cipline, when not actuated by malice but honestly exercising a conscientious judg- ment. ' ' The facts in the lams case would, under conditions admitting of a calmer examin- ation, perhai3s not have been held to create an emergency justifying the action taken, and the statement that the troops "were governed by the same rules that would ]»revail in case of actual war" seems to be an unnecessary view to take of the matter, and may be a misleading one. But that such conditions may produce emergencies justifying what would otherwise be arbitrary can scarcely be douljted. The instructions given for the use of troops in certain localities in Alaska, in 1898, seem to be based on this principle. Instructions, of date, February 9, were as fol- lows: "The troops are sent to the localities named in the interest of good order, and of the safety of the persons and property there and in the vicinity of those places, which the troops are expected to conserve. The force should be used with kind- ness and consideration and within the measure of the strict necessity of the occasions as they may arise. The President relies upon the firmness and wise discretion of the officers in command to accomplish the objects for which the troops are sent, with kindness and humanity, and the use of their forces lawfully and as little as is compatible with the duties assigned them." Other instructions, of date, March 19, were as follows: "The Secretary of War has information that a mob has taken possession of the White Pass road built by George A. Brackett, of ^Minneapolis, and others. He desires that their rights be protected and mob violence suppressed." The parts of Alaska where the troops were to be used being unprotected by an organized local civil government, it was evidently deemed necessary, in order that the localities named should not be handed over to lawlessness, that the government having jurisdiction over the territory should use the only means at its disposal to prevent the commission of crime. It must be regarded as a temporary measure, based on necessity, to which the legislation of 1878 was not applied. The remarks of Mr. Justice Woodbury, in his dissenting opinion in the case of Luther ('. Borden (Howard, 78-83), are of interest in this connection. At the time of the riots in Idaho, in 1892, the governor applied to the President for the protection guaranteed by the Constitution, and also issued a proclamation declaring the county, which was the locality of the trouble, to be in a state of insur- rection and rebellion. Military aid was furnished by the President, and for a time the locality was under predominant military rule, although the civil power was not in fact entirely displaced. It was regarded as an enforcement of martial law, based on the fact, proclaimed by the governor, of the existence of insurrection and rebel- lion, that is, war. (Similarly in the case of the Coeur d' Alene Labor Troubles of 1899. See H. R. Eeport 1999, 56th Cong., 1st sess. ) But when the domestic violence does not amount to insurrection or rebellion, the State's invocation of aid to suppress it 788 USE OF THE .\RMY IN AID OF THE CIVIL POWER. son says that it brings the question to the verge of martial law, and recalls to mind the phrase used by the Attorne}" General in the case of the Lord George Gordon riots, when he advised the Crown to declare the tumults rehelUons, in order to allow of the recourse to military force in attacking the rioters wherever they Avere found, and whether or not engaged in felonious outrage, which alone would justify it at common law. This, says Finlanson, shows the point of contact between the scope of common law and martial law, the one dealing with mere riot, and the other with rebellion so formidable as to amount to war and to require measures of war.^ What was advised by the Attorney General on the occasion of the Lord George Gordon riots was actually done by the governor of Idaho, during the riots of 1892, when he, by proclamation, declared a county, where the lawlessness existed, to be in insurrection and rebellion. Owing, however, to our dual system of government the principles controlling this subject are in a great measure peculiar to this country. With the suppression of ordinary riots, not interfering with the exe- cution of the laws of the United States, nor with the processes of the Federal courts, nor with the mails nor the property ^ of the United would not justify a resort to martial law. This seems to have been understood and observed during the riots of 1877. Whether the domestic violence does in fact amount to insurrection or rebellion may sometimes be a very delicate and difficult question to decide, although in Ex parte Milligan (4 Wall., 127), the Supreme Court declared that martial rule can never exist where the courts are open, and in the proper and unobstructed exercise of their jurisdiction. If correctly reported in the newspapers, General Gobin, the commanding general of the militia sent to Hazleton, Pa., in September, 1897, in consequence of the troubles arising out of the miners' strike, declared that, in spite of the warrants issued for the arrest of the sheriff's deputies for the shooting of miners, no constables, nor any civil authority, would be permitted to arrest them; that the sheriff is an executive officer, whose duty is to preserve the peace; that he, General Gobin, and the troops, were subordinate to the sheriff, being engaged in helping him to perform that duty; and that, under these circumstances, he would not permit interference with the sheriff's officials. "In spite of this fine distinction," wrote the reporter, "the commander's decision on this point is accepted as superseding the civil authori- ties by the military power." This goes to show the legal difficulties that may arise. A publication on "The Organized Militia of the Unitecl States in 1897," by the Mili- tary Information Division of the Adjutant General's Office, contains an account of the use of the militia on this occasion. For an interesting discussion of "The Status of the Militia in Time of Riot" see two articles on that subject in the Albany Law Journal of August 3d and 10th, 1878, by William M. Ivins. A majority of the States have express provisions in their constitutions or statutes for calling out the militia "to execute the laws;" in others the power is given, although not in this specific language, some copying the Constitution of the United States in this respect, making the executive conmiander-in-chief, and requiring him "to take care that the laws be faithfully executed." * Review of the Authorities as to the Repression of Riot or Rebellion, by W. F. Finlanson, p. 25. ^ "Your right to take such measures as may seem to be necessary for the protection of the pubHc property is very clear. * * * The right of defending the public property includes also the right of recapture after it has been unlawfully taken by another." (Attorney General Black to President Buchanan, 9 Opin., 520, 521.) USE OF THE ARMY IN AID OF THE CIVIL POWER. 789 States, or, in general, with their instrumentalities of government,' the Federal government has in the first instance nothing to do. It is only when called on in the manner prescribed l)v the Constitution that it can interpose its power for the suppression of such domestic violence. As at Chicago, the existence of the two governments, Federal and ' In a letter to the Secretary of War, dated July 5th, 1894, the Attorney General said : "I have the honor to acknowledge the receipt of copy of telegram to the Adjutant General of the United States Army, from Brigadier General ^lerritt, commanding the Department of the Dakota. The telegram shows that on the Northern Pacific Railroad, west of Fargo, no trains are running; that employees engaged by the com- pany refuse to work unless adequate protection is afforded them; that the protection of the United States courts as now afforded does not, in the opinion of such employ- ees, secure them against danger, and that in consequence of the circumstances above mentioned mail connnunication with Forts Keogh and Custer has been interrupted since June 25, and the commanding general is unable to make the usual l)imonthly payments to his troops or to ship supplies to the military posts on the line of the Northern Pacific. " By section 3 of the act of July 2, 1864 (13 Stat., 365), incorporating the Northern Pacific Railroad Company, it is declared that certain described public lands are granted to the company 'for the purpose of aiding in the construction of such railroad and telegraph line to the Pacific coast, and to secui'e the safe and speedy transportation of the mails, troops, and munitions of war, and pul)lic stores over the route of said line of railway.' "By section 11 it is further enacted, 'That such Northern Pacific Railroad, or any })art thereof, shall be a post route and a military road subject to the use of the United States for postal, military, naval, and all other Government service, and also subject to such regulations as Congress may impose restricting the charges for such Govern- ment transportation.' "By section 20 of the same act Congress reserves the right to alter, amend, or repeal the act 'the better to accomplish the object of this act, namely, to promote the public interest and welfare by the construction of such railroad and telegraph line and kee}>ing the same in working order and to secure to the Government at all times ( but particularly in time of war) the use and benefits of the same for postal, military, and iither purposes.' "These provisions make the road of the Northern Pacific a military road of the United States. Being such, the power of the President, as commander-in-chief of the military forces of the United States, to keep the road unobstructed and available for militar\- purposes can not be doubted, and may i^roperly be used to remedy the mis- chiefs stated in General INlerritt's telegram." And the following letter was sent by the commanding general of the Army to the commanding general of the Department of the Columbia: "In view of the fact, assul)Stantiated by communications received from the Depart- ment of Justice, from military official reports, and from other reliable sources, that, l)y reason of uidawful obstructions and condjinations or assemblages of persons, it has become impracticable, in the judgment of the President, to enforce by the ordinary course of judicial proceeding the laws of the United States and to prevent obstruc- tions of the United States mails and interruptions to commerce l)etween the States, the right guaranteed by section 11 of the act approved July 2, 1864, constituting the Northern Pacific Railroad 'a post route and military road, subject to the use of the United States for postal, military, naval, and all other Government service,' you are directe'. J. : Navigability of, 1778. Beer: Introduction into Indian country, 1500. Behavior, of members of court-martial, 87 A. W. Bid, for lease, 1591. Bidders. (See Contract.^.) Bigamy: Officer, 1.39. To the prejudice, etc., 159. Blake case: Ruling in, 1207-1209. Board, examining: Approval of findings, 1323. Report of physical disability, 2108. Retirement on report of, 2207, 2208. Board of Investigation: As distinguished from a court, 529. Authority and scope of, 528. In case of a civilian, 529, 530. Record of, as evidence, 1291. Board, retiring: (See Retiring board.) Approval of finding by President, 2194, 2196, 2206. Causes of incapacity, 2195, 2196, 2203, 2204, 2208. Disability, 2192, 2195-2196, 2203, 2204, 2207, 2208. Evidence, 2197. Existing incapacity of officers, 2204. Findings of, 2194, 2195, 2206. Hearing, 2197. Jurisdiction of, 2103. Limitations as to, 2193. Moral obliquity, 2103. Board of officers: Payment of reporter for, 2173. Board of Ordnance and Fortifications, member- ship, 1S91. Board of supervisors, San Francisco, 1829. Board of survey: Can not be sworn or administer oath, 532 May receive affidavits, 533. Not a court, 531. Opinion of, not a criminal finding, 531. Proceedings of, as evidence to prove loss of property, 5, note. Bonds: (See Contracts.) Acceptance of, 548. 806 INDEX. Bondt« — Continued. Affidavits, justifications of sureties, 5S9, 540, 551, 553. Assignment of, to creditors of contractor, 573. Authentication of copy of charter, etc., 584. Authority of officials to be shown, 582, 583, 5S5, sso. Authority to execute can not be delegated, 580, 581. Biennial examination of, 600. Capacity of institution, 5S4, .592. Certificate, as to sufficiency of surety on bond, 539. Certified copies of, 949, 951. Contract for personal services, .5(16. Contractor's — Consent to sue sureties on, 948. Disposition of money collected upon. 968. May be dispensed with when to interest of Government, 499. Corporate name, 579,581. Dating of, 513. Disbursing officers, page 150; note 537, 538, 541, 542, 556-558. Disbursing officers of Army, as to sufficiency of, 596. Dispensing with contractor's, 499,570. Execution of, 534, 564, 575, 578-581. Before contract, 564. By corporate officials, 575, 578, .579, 580, 581. Extension of, 549, 602. From old office to new, 602. Form of, 556, note. Giving of, not a prerequisite to receiving pay, page 150, note. Governor, how empowered to give, 594. Guaranty, or bidder's bond, .569-571. Institutions not incorporated, 587-589. Insurance clause, 593. Labor and material, 570. note. Laches not imputable to United States, 550. Material alteration in, effect of, 555. Material modifications. 563, 571, 572. New, by disbursing officer, 5.56. Oath, administration of, 540, 553. Obligation — Of bidder after acceptance, 568. To be unconditional, 576. Of indemnity, 598, 1890. Official bond of State required, 594. On contracts, payment withheld tintil fur- nished, 950. On issuing arms to colleges. 837. Ordnance furnished Volunteer Homes, .595. Penalty in excess of amount for which bond is authorized to be given, .591. Personal, when proper, 578, 581, 587-589. President may require, 541. Promotion, effect of on, 557-560. Revival of expired, 549. Seals, 5.34, 544, 547, 501. Signing and sealing of, by (-orporation, .544, .547, 580. Bonds — Continued. State as principal in, 589. Subscribing witnesses, 54.5. Surety — Acceptance of, 577. Army officer as, 536. Certifi(^ate as to sufficiency of, 539. Dispensing with, 577, 590. Division of responsibility between nld and new, 556, 557. Justification of, .537, 539, 540, 551, 553, .577. Married woman as, 550. Member of Congress as, .574. Member of family as, 562. Obligation of, 535, 548. Releasing of, 549, 554, .5.56, 565. Withdrawal of, 554. Surety companies — Acceptance of on, 596-599. Financial statement of, 600. Foreign, 601. Papers required to be filed by, 599. To respect law of war, 1571. Wife of insane officer, 1517. Boom: Construction of in navigable waters, 1784. Bounty: Continuous .service, 604. Desertion, as atTecting right to, 605, 1396. Distinguished from pay and allowances, 603. Forfeiture of, 1396. Honorable discharge a prerequisite to, 605. Local, not forfeited by desertion, 1064. Promotion, as affecting right to, 606. Service in civil war, right to, for, 607. Breach of arrest: By officers, 65 A. W., 170-173. To the prejudice, etc., 159. Breach of coiitriu-t, 936: By United States, 917. Breach of faith: To the prejudice, etc., 159. Breach of peace : In arresting deserter, 1071, note. Breakwaters: Permit for in navigable waters, 1774. Brevet rank; An incident to full rank, 608. Assignment to duty according to, 611, 612. Confirmation of brevet appointment, 610. Not entitled to precedence according to, 609. Bridge : Acceptance of franchise, 624. Alteration of — Secretary of War to initiate proceedings, 638. When franchise in hands of receiver, 639. Approval of, by Secretary of War, 615-618, 620- 623, 629, 631. At Rock Island, use of, 628. Authority of State to erect, 614. Closing of, during repair, 641. INDEX. 807 Brldare— Continued. Company, authentication of charter or article of incorportion of, 623. Con.solidation of companies, 622. Conservation of navigable waters, right of, 613. Extension of time for completion of, 627. Franchise, assignment of, 629-631. Legal commencement of construction of, 620. Mandatory statute as to time of commence- ment of construction of, 626. Map of location and plan of, acceptance of by company, 62-J. Navigable waters — Not wholly within a State, 613-615. Of a State, when rivers are, 614. Of the United States, when rivers are, 614. Practice of War Department concerning, 615. Title to soil under, 613, 1488, note. Wholly within a State, 613-616. Navigation- Obstruction, 615, note, 617, 632-635, 638-640, 1774. Power of Congress to legislate in regard to, 613, 616, Notice to alter—, 632-634, 636-640. Hearing of owners, 633, 634, 636, 637, 640. Rule of War Department, 622, 623, 624. Secretary of War alone empowered to deter- mine whether an obstruction, 635. Temporary structure, 619. Unrestricted authority to construct railroad includes authority to bridge navigable streams en route, 625. Brigade: What constitutes, 192, 198. Brigade, separate: What constitutes, 192, 193, 194, 195, 196, 198. Buildings: (See Public buildinfis.) Civil establishment, hire, 2302. Erection of, on public property, 2088-2089. Hire of, for Army, 2302. Of a permanent nature, construction of, 4sl. Ownership of— On land illegally occupied, 2100. On land occupied jure belli, 2098. On leased lands, 2099. On United States lands, 2098. Burial of liiiiiates of volunteer homes, 1770. Burial expenses: (See Funeral expenses.) Contract surgeons, 388, note. Of civilian employees, 452. Of retired officer, 2114. Burglary: Death sentence for, confirmation of, 105 A. W. Definition of, at common law, 642. In time of war, insurrection, etc., 58 A. W., 88. Offenses not clearly burglary, how charged, 642. Cadet: (See MiHtary Academy.) Amenability to trial, 654. Appointment — A&e, 652. After discharge, 655. After resignation, 653. Cadet — Continued . Appointment— Continued. Provisional, 653. Residence, 643-650. State redistricted, 648. Time before admission, 649. Unemancipated minor, 643. Discharge of, without honor, for demerits, 1134. Execution of sentence of suspension, 2325. High school, detail of clerk of War Department to instruct, 804. Name changed in register, 657. Naval, 654, note, 658. Nomination, by Congressman, 646,647. Not a commissioned officer, 30. Pay of, under suspension, 2416. Punishment, by Superintendent of Academy, 656. Residence, 643-650. Service, retirement, 2205. Suspension from Military Academy of, 2416. Uniform, contracts for purchase of, 862. California, State of: United States property exempted from taxation 2434. Camp followers: How punishable, 161, 162. Camp retainers, 63 A. W.; 161. ('anada: Deserters into, 1877. Canals, rules, etc. : For navigation of, 1493. Caneellation of contract, 849, note, 934. Cancellation of deed, 1045. Canteen: {See Post exchange.) Taxation of goods sold in, 2430, 2431, note, 2432 Capital crimes: Jurisdiction, 148. Matter of aggravation in charge, 714. Captured property: Disposition of real and personal, 659. Flags, 664. Impre.ssment, 661. Prize money, 666. Recaptured, right of owner, 662. Salvage for, 662. Smithsonian Institution, 665. Status in civil war, 660. Stores, 9 A. AV.; 3. Withheld from United States by civilian, 663. Cashiering, 1196. Cemeteries, national. (See National cemeteries.) Certificate as to surety on bond, 539. Certificate, false, 13, 60 A. W.; 110, 124. Certificate of discliarge not necessary to discharge, 4 A. W., note. Certificate of merit: Additional pay, G71. Civilian, 667. Discharged soldier, 667. Forfeiture of pay for, 1409. General service clerks and messengers, 671. How and to whom awarded, 668. 808 INDEX. Certlflcalc of merit— Continued. Pay for, layment on, 1110. Payment by, 1924. (iierokee Nation, 1513. INDEX. 809 Chlrkaniauga and Chattanooga Xatlonal Park, 681,2304. Chief Musician: Amenability to trial, 734. Reduction to ranks, 735. thU'f of Kniflneers: Authority to grant leaves of absence, 1597. Court apjiointefl by, 212. Chief of Ordnance: Court appointed by, 212. Disposal of ordnance property, 1862. Returns of stores, etc., to, 1861. Chief of Staff Corps: Residence of. 2177. Chief Signal Officer: Court appointed by, 212. Child: Competency of, as witness, 1306. Church: License for erection of, 1615. Citizens: Trial of, by courts-martial, 58. Cltlxenshlp: (See Naturalization.) Effect on promotion of enlisted men, 2073. Enlistment and discharge does not constitute, 736. Forfeiture of, as incident to conviction of de- sertion, 1061. Inhabitants of Alaska, 400. Loss of, not incapacitating witness, 1298. Minor native-born, 737. Requirement for, under Revised Statutes, 736. Restoration to, 1272, 1273, 1867, note, 1872. Right to acquire by military service, 401, 421. Service in Navy, 402. City office: Officer holding, 1817, 1818, 1829. Civil authorities: Arrest by, 59 A. W.; 94-106. Application, 95, 100, 10:'.. Civilian, on reservation, 103. In time of war, 105. Laws of the land, meaning of, 96, note. Offenses, 96. While on furlough, 97, note. Delivery of deserter necessary to payment of reward, 1071, 1082, 1083. Officers entitled to reward for arrest of desert- ers, 1087, 1088. Return to, of soldier under bail, 98. Surrender— Of deserter to, 1081. Of prisoner to, 98. Of .soldier to, 100. Warrant to enter and search dwelling hou.se for deserter, 1071, note. Witness, subpoena of by, 104. Civil court: Retired officer ordered to remain within juris- diction of, 2215. Civil court — Continued. Trial of partisans by, 20.56. Trial of soldier by, 2318. Civil disability: Offenses committed in time of war. etc., 93. Civil duties: Detail of officers to perform, 4sii, A\)\. Civil employees of Government: Admission of, to Hot Springs Hospital, 14.54. Witnesses before civil courts, 2486. Civil employment: Dishonorable discharge no disqualification for, 1149. Engineer officer, 1817, 1818, 1827-1829, 1832. Civil liability in olteylng orders of superior officer, 23, note. Civil life: Appointments from, 432, 433. Construction of term, 432, 433. Civil office: (See O^ce.) Adjutant-general District of Columbia militia, 1830. Defined, 1817. Diplomatic or consiilar, 1825, 1826. Distinction between office and employment, 1816. Eligibility retired officer to hold, 1813, 1823, 1824, 1826. Enlisted men liolding, 1S19. In a Territory, 1824. Retired enlisted men liolding, 1820. Civil rights: Pardon to restore, 1272, 1273. Civil suit or process: (See Attachment and Proc- esii.) Amenability of military to, 738-760. Cession of jurisdiction affecting, 740. Contempts, 749, 750. Debts of officers, 755, note. Divorce, 748. Enjoining persons working under United States contract, 744. Enlistment while serving as juror, 757. Against officer representing United States, 752. Against officers by creditors, 755. Judgment against officer for act performed in good faith, 746. Jurisdiction of courts-martial affected by, 742. Jurisdiction over offenses on U. S. transport in harbors, 769. Liability of officer to trial for State penal of- fenses, 754. Liability of United States for damages to third parties through public improvements, 7.53. Obstruction of service of process by military force, 751. Officer — Indictment of United States court against, 745. Injunctions against, 743, 758. Property of, exempted from attachment, 738. 810 INDEX. tivil suit or process — Continued. On military rcstTvation, 1699. Process, use of army in executing civil, 487, 490, 493. Release by officer of United States civilian pris- oner, 745. Remedy for acts of soldiers against private property, 747. Reservation in Territory, 741. Responsibility of United States for acts of sol- diers against property of civilians, 747. Restrained by martial law, 1G41, 1644. Summons served on officer on board .United States transport, 760. Surrender of military prisoner to civil author- ities, 7.56. Civil war: Extra pay to certain volunteer officers of, 1346. ClTillans: Acting as aid-de-camp, status of, 399. Acts committed against, to the prejudice, etc., 158. Appointment of — As second lieutenant, 415. As captain by special authority of Congress, 412. Arrest of — By civil authority, on reservation, 103. By Superintendent of Military Academy, 520. By the military without warrant, 519. On land to which exclusive jurisdiction has been ceded to the United States, 521. As judge-advocate of court martial. Board of investigation, to inquire into matters concerning, 529, 530. Clerks, advances to, 1927. Employees — Burial expenses of, 452. Compensation as auctioneer, 2284. Erroneous payment of, 2386. In Indian wars, trial of, 164, 165. In military service, contracts, 896, 959. Jurisdiction over- After war, for offenses dtiring war, 166. In Indian wars, 164. In time of peace, 165, 167. In time of war, 161-166. Medical attendance of, 448,449. Not liable to charge of desertion, 1099. Sale of quartermaster supplies to, 2392. Sale of subsistence supplies to, 2392. Trial of, 162-166. Employed in improvement of rivers and har- bors, 1495. Expen.ses incurred by, in apprehending de- serter, 1072, 1089. Habeas corpus, 1438, 1439. Held as United States convict after termination of enlistment, 1460. Paymaster's clerks, 1970. Penalty for waste, etc., of property of, 55 A. W. Phy.sician, not serving with a military force, etc., 388. tivilians— Continued. Relieving enemy, 58. Reparations for injury to person and Droperty of, 54 A. W. 78-86. Restoration of, as officer, 1869. Tailor, stoppage of pay in favor of, 27, note.. Teamsters, cook for, 28. Trial by military courts, 2346. Use of liquor by, 2288. Witness — Compulsory attendance, 2400, 2478. Summary court, compensation, 2406. Claim : Act done in violation of law not a legal basis for, 1080. Against deceased soldiers, 1922. Assignment of, 766, 767. Authority to reopen, 761-764. Breach of contract, 770. By bank, to refund money paid out, 788. By heirs of disqualified persons, 775. Compensation for expenses in collecting wit- ness fees, 790. Conflicting, 766. Damages — For inilawful acts of soldiers, 783. To dwelling by guns of United States war- ship, 780, 1582. Decision upon, 2295. Disbursing officer's claim for amount of funds stolen, 782. Discharged soldier, for pay during imprison- ment and trial, 786. Effects ol officer stolen from United States store- house, 793. False, 60 A. W.; 107, 108, 122. For arrest of deserter, 794. For artificial limb, right to prosecute, 524. For assistance given by militia to Indian agent, 1728. For loss of private property, contract surgeon, 387. For mileage, revival of, 2305. For reporting proceedings of courts, 1558. For service as clerk by member of court-martial , 799. For services as counsel to assist judge-advocate, 982, 983. Implied promise by United States, 776. Infringement of patent by United States, 772. Injury to— Persons employed on public improvements, 791. Private improvements on public lands, 770. Inspection of United States horses at Honolulu, 797. Interest on, when payable, 768. Letters as a waiver to, 881. Loss of wages by arrest and trial, 770. New evidence, 2295. Occupation of private buildings, 770. Officer's baggage lost on railroad, 787. INDEX. 811 Claim — Continned. Pay for holiday by per diem employee, 792. Payment by appropriation of Congress, 765. Property — By loyal owners during civihvar, 776. Destroyed by Army, 770, 771. Destroyed incidental to military occupation, 778, 1582. Lost on United States hospital ship, 796 Private, taken for public use, 774. Prosecution by power of attorney, 2037, Quartermaster stores, under act of July 4, 1864, 777. Reargument upon, 2295. Relief for accountability by ofticers, 789. Reopening of, 2295, 2296. Resulting from torts of officers or agents of Government, 784, 785. Services as attorney for accused officer, 795. Services to enlisted man by counsel in civil proceedings, 974. Southern Claim Commission, 781. Transfers and assignments of, 903. Under act of July 4, 1864, 777. Unliquidated damages, 769-773. Vessel of enemy in hostile country, 779. Wrongful arrest and imprisonment as deserter, 770, 786. Clerical compensation. 453, 474. Clerical errors In maklnc: Itlds, 869, 872. Clerks: Absence without leave, 800. Acceptance of fees as notary, 807. Annual leave, 803. Certificate of merit, 671. Civilian — Advances to, 1927. In military service, contracts, 896, 959. Claim of officer for service as, 799. Compensation for services as acting chief clerk, 840. Detail of, from Record and Pension Bureau in 1894, 802. Detail of, to instruct High School Cadets, 804. Eligibility of, for appointment as a post non- commissioned staff officer, 811, 2019. Extra duty pay to enlisted men detailed as, 1332, 1338. Finding or sentence divulged to, by members of courts-martial, 798. Leave of absence for indefinite period, 806. Leave of absence of, in Ordnance Department, 812. Of officers, expenses of, when ordered before court of inquiry, 813. Paymasters', 1970. 1971. Power of department commander over dis- charge and salaries of, 808. Rations for, 810. Resignation of, after discharge, 805. Sick leave of — , 803. For sickness in family, 801. Clerks — Continued . Status of certain, employed as armed force to protect property, 815. Transportation of, for duty with troops in field, 814. Transportation, subsistence, etc., 809. Trial of, 162. Two offices at same time, 843. Close arrest: Breach of, by officers, 170, 172, 173. Clothing: Accountability for, 10 A. W. Allowances, 816-828, 1864, 1902, 1961. Contracts for, 888. Embezzlement of, 60 A.VV. Forfeiture of allowance of, 818, 819, 1382. Gratuitous issue of, to prevent contagion, 823. Illegal purchaser of, proceeding against, 2274. Illegal sale, etc., of, by .soldiers, 2274, 2275. Increase in, to cover loss in campaign, 828. Issued to soldier, 11. Larceny of, 60 A. W.; 113. Misappropriation of, 60 A. W.; 116. Money, forfeiture of, 1132. Of soldier discharged without honor, 825, 826. Overdrawn, 826. Penalty for lo.sing, spoiling, etc., 17 A. W. Prisoners' right to, 821, 822. Property of soldier in, 824, 2276. Qualified property in, 6. Receiving in pledge, etc., 60 A. W. Reimbursement for loss by casualty, 817. Right of soldier under sentence to, 816, .819, 820. Sale to States, for use of militia, 2104. Title of .soldier to, 824, 2276. Collegres: (See Bonds.) Bond on issuing arms to, 837. Established, within meaning of act of Sept. 26, 1888, 831. Issue of arms for use of, 831-837. Meaning of term under sec. 1225, Revised Stat- utes, 830. Officers detailed at, 829, 2211. Penalty envelopes, 1975. Returns of ordnance stores, 835. Services with high school of officer detailed at, 832. To which arms may be issued, 833, 834, 836. Collusion, to the prejudice, etc., 1.59. Colonel: Sons of Veterans, United States of America, 1834. Columbia River: Removal by United States of fish nets, etc., from, 1711, 1781. Command: Different corps joining, 122 A. W. Neglect to assume, to the prejudice, etc., 159. Unauthorized absence from, 32 A. W.; 374. Commanders, corps: Courts appointed by, 72, 81 A. W.; 191. Commander, department: Absence of, 185, 190. 812 INDEX. Commander, department — Continued. As accuser or prosecutor, 72 A. W.; 186-188, 190. Supervision of inferior courts, 213. Commanders, regimental: Court appointed by, 81 A. W. Commandina: General of Army: Dismissals, confirmation of, 338. Cuniuianding ofHrer: Allusive language to, 14, 143. As counsel for accused, 988, 989. Disrespect to, 20 A. W.; 14, 15, 143. Not to be interested in the sale of victuals, etc., 18 A. W. Order of, 1853. Superior officer distinguished from, 20. Commands, independent, summary courts, 2405. Commercial Intercourse iritli enemy, 60, 61. Commissary-Weneral of Subsistence: Penalty envelope, 1977. Commissary sergeant: Appointment of, 838. Commission: Acceptance of, 408. Change of date of, 2071. Date from which it takes effect, 408. Date of commencement of pay, 408. Dating back, etc., 413, 417, 2363. Issue of new, 2071. Member of river, 1827. Of ordnance officer, 1863. Of southern claims, 781. Qualification of enlisted men for, 421, 422, 425. Rank determined by, 2122. River. (See Siver commvisioni<.) To enlisted man as auctioneer, 1336. Vacating, 1812-1815, 1822, 1824, 1825, 1827, 1831- 1833, 1835. Volunteer, acceptance, 2454. Commissioners, boards of: National Soldiers' Home, 2330. Commissioner: Witness, compulsory attendance before, 2480. Commissioned officers. (See Officers.) Arrest of, 503. Reduction to the ranks, 2148. Residence of, 2179. Stoppages, 2374, 2375, 2381-2384, 2386. Term officer as used in Articles of War, means, 16. Vacating commissions, 1812-1815, 1822-1825, 1827, 1831-1833, 1835. War-service as included in computing period for retirement of enlisted men, 2217. Communications. (See Letters.) Confidential, copies of, 2298. Privileged, 1303. Commutation: Of quarters, contract .surgeons, 389. Of rations, absence without leave, 1070. Of sentences, 347, 348, 2229, 2235, 2243. Retired enlisted men, 2226. Company Ituliery or post-exchange funds: Payments from, not extra-duty pay, 1339. Company bakery or post-excliange funds — Cont'd. Stoppage of pay to reimburse. (See Company fund.) Company commander : Delegating authority to noncommissioned of- ficer to receive complaints, 839. Company fund: Forfeiture for benefit of, 1384. Not public money, 2083. Stoppage of pay to reimburse, 1384, note, 1424, 1426, 1427, 2384. Compensation. (See E.vtra duty pay.) For extra services — As counsel to assist judge-advocate, 982. Officer receiving pay from a State, 842. Soldier not entitled to, while employed as acting assistant surgeon, 841. To clerk for acting as chief clerk, 840. Two offices at .same time, 843. For property taken for public use, 844, 845. For services prior to muster-in, 1839. Ordnance sergeant as timekeeper, 1865. Property taken for public use, 1868. Reporter, 2170, 2173. Witnesses for courts-martial, etc., 2173. Computation of time: Reenlistnient, 2159. Condemnation of lands, l.=>61, 2262, 2307. Condemnation proceedings, 1246, 1247. Condemned stores: Sale of. (See Sates.) Sales, disposition of proceeds, 2102. Conduct of officers and soldiers in quarters, etc. : To be orderly, .55 A. W. Conduct of prisoners: Time allowance for, 356. Conductors, etc. : Trial of, 162. Conduct prejudicial to good order and milllary discipline, 62 A. W.; 148-160, 1361-1363: Alleging previous trials is not pleading an of- fense, 152. Assault with intent to kill, 149. Capital and other crimes, 148, 149. Crimes, disorders, etc., 148, 149, 151. Crimes not capital, 149,153. Criticism of official report, 150. Drunkenness, how charged, 151. Embezzlement — Defense, 155. Defined, 1.54, note, 155-1.57. Illegal payment of public money, 157. Instance of, 149. Not accounting for public money received, 156. Finding of, under charge of conduct luibecom- ing, etc., 1361-1363, Forgery, 149. Larceny, 148, 149. Misappropriation of property, 149. Murder, robbery, etc., 118, 149. Offenses- Chargeable as, 1.59. INDEX. 813 Conduct prejudicial to trood order and military discipline — Continued. Offenses — Continued. Committed against civilian.^, 158. Not cliargeable as, KiO. Specification, objectionable forms of under charge of, 152. Conduct unbecoming an officer and a srentleman, (il A. W.; 123-117: Abusive language to commanding officer, 143. A.ssaulting. beating, etc., wife, 140. Bigamy, 139. Defined, 123, 132. Disgraceful or disreputable, essential to, 123. Drunk, disorderly, etc., 129,130. Failure to support wife and children, 141. False representations by officer, 134. Fraud, attempting to induce officer to join in, 125. Fraudulent divorce proceedings, 141. Gambling with enlisted men, etc., 131. Loaning money at exorbitant rates, 137. Need not be scandalous and infamous, 123. Neglect of pecuniary obligations, 133, 135, 136, 138. Pay accounts, duplication of, 145-147. Perjury, attempting subornation of, 125. Promise or pledge on honor, violation of, 128. Report, etc., false official, 124, 125. Sentence, 142. Uniform, drunk, disorderly, etc., in, 129-131. Vote, attempting to corrupt officer as to, 126. Confession as evidence, 1299. Confluenient: (See Imprisonment and Solitary confincmcvt.) Breach of, by officers, 65 A. W.; 170-173. Dismissal of officers for breach of, 65 A. W. ; 170. Duration of, 70 A. W.; 177. Duration of unreasonable, 177. Escape from, when not desertion, how charged, 169. Forfeiture for the same period as, 1385, 1386. Good conduct in, 356, 1482-1484. In penitentiary—, 97 A. W.; 288-300. For larceny, 291. For purely military offenses, 288-290, 296. Lex loci, 97 A. W.; 297, 298. Mitigation of, 299, 300. Not sentenced to, 295. Terra of, 294. Not implied by suspension, 2421. Not involved in status of suspension, 2414. Of enlisted men. 66-70 A.W. _ Of officers, duration of before trial, 71 A. W.; 179. Of sdldicrs, 66 \. W.: 175. Conflrniations: Of dcatli sentences, 105 A. W. ()f field officers' sentences, 110 A. W. Of sentence of dismissal, 1197-1199. In time of peace, 106 A. W.; 336, 337. In time of war, 107 A. W.; 338. Of sentences, 109 A. W. Sentences of general officers, 108 A. W. Synonymous with approval, 336. Conflicting evidence, 2232. Congress: Altering of record of service, 2147. Can not add to or detract from pardoning power, 1880. Disposition of property by, 666, 666. Member of, not to be interested in contracts, 896. Remitting court-martial sentence, 1880. Revoking court-martial proceedings, 1880. Source of general relief, 2163. Congressmen : Nominations of cadets by, 646, 647. Conscription. (See Draft.) Conservation : Of navigable waters, right of, 613. Right of, over improvements to navigation, 1780. Constitution : Cession of jurisdiction, 672, 673. Power of President to dismiss from Army, 1203. Construction of l)arraclts, quarters, etc. : Of a permanent nature, 481. Constructive enlistments, 1255, 1256. Constructive pardon, 351. Consular service: Appointment in, 1826, 1826. Contempt of court, 86, 118 A. W.; 240-233, 749, 7.50. Contemptuous words, 19 A. W.; 1.3. Contingent expenses: Meaning of term, 452, note. Contingencies of the Army: Appropriations for, 444, 446, 447, note, 448, 451- 456. Continuance: Absence of witness, 276, 277. Courts-martial, 93 A. W.; 275-280. Grounds for, 276-280. To procure counsel, 280. Continuous service: As entitling to bounty, 604. Contract: Acceptance of — Building by occupancy, 916. Proposal does not bind United States to enter into, 879. Proposal does not constitute, 879. Advertising — , 846, 847, 849, 864, 866, 858, 862-865, 908, 2365. Exceptions to the rule requiring, 860-864. Affidavits taken in the execution of, 967. Aggregation of several river and harbor works in one contract, 890. Aiding contractor in the performance of, 916. Aliens competent to bid on, 405. Appropriations — , 437, 470, 955. Placing of, to credit of another department, 955. Approval of expenditure after it is made, 863. Articles purchased for trial, 849. Assignments — Assignee, 903, 905, 960. By operation of law, 904. Constructive ratification of, 900. For benefit of creditors, 903. 814 INDEX. Coiitraft — Continued. Assignments — Continued. In bankruptcy, 903. Need not be express to invalidate, 902. Of, renders it not void but voidable, 900. Prohibited, 897-902, 906. Receiver, 906. Attachment of money due contractor, 941. Authority to make, delegation of, 965. Bidders, 850-852, 855, 869-«72, 874, 875, 878, 879. Bids — , 851, 855, 867-874, 876. Acceptance of, after period named in guaran- ties, 874. As to requirement of guarantors, 873, 877. At variance with advertisement, 868. Clerical error in, 869, 872. Received after time stated in advertisement, 867. Release of guarantor, 876. Right to reject, 855, 869. Surety not liable upon withdrawal of, before acceptance, 870, note. Withdrawal of, before acceptance, 870. Withdrawal of, on account of error, 869, 871, 872. Bonds — Certified copies — , 949. Authentication of, 951. Contractor's, disposition of money collected upon, 968. Payment withheld until furnished, 950. Breach of — By the United States, 917. Terms of, 936. By army officer for personal gain, 960. Cancellation of, 849, note, 934. Can not be varied by parol evidence, 933. Certified check in lieu of guaranty, 878. Civilian employees in military service, 896, 959. Civilians in public service, purchases from, 896, 959. Claim for breach of, 770. Clause to protect United States against infringe- ment of patent, etc., 885. Clothing, 888. Compensation for additional work, 854,925. Convict labor, employment of, 953. Current fiscal year, 888. Deceased contractor, representatives of, 901, 9frl. Delivery of material, 943. Dispensing with contractor's bond, 570. Emergency, 846-848, 853, 854, 863, 864. Enlistment, 1166, 1180, 1251, note, 1252, 1254, 1255, 1157, 1262, 1414, 1416. Entered into — On credit, 888. With guarantor, 875. Errors in bids on, 869, 871, 872. Execution of bond before, 564. Extension of, 858, 907, 910, 911, 962. Extra work, 854, 925. Failure of bidder to enter into, within time specified by guaranty, 875. Contract — Continued. Final payments, 963. Forage — , 888. Best quality of locality, 964. For necessary supplies, 888. For personal services, 566, 860. For purchase of cadet uniform, 862. For supplies, etc., 2301. For use of ferry, etc., for an indefinite term, at a fixed compensation, not legal, 886. Fraud on part of bidder, 855. Fuel, 888. Governed by law where made or at place of performance, 550. Guarantors, 873-878. (juaranty, certified check in lieu of, 878. Guaranty, Secretary of War may not waive omission of, 877. Immediate delivery, 846, 853, note, 880. Implied or informal, 8-54, note, 879, note, 880. In absence of appropriation, 888. In advance of appropriation, 889, 891, 892. In excess of appropriation, 886, 887, 892. Injunction against officer making payment under, 743. Italian labor, employment of, 954. Justifications of sureties, 537, 539, 540, 551, 553. Labor and material, 945, 947, 949-952. Labor employed by contractors. Secretary of War no control over, 953. Lease — At a certain rent, for an indefinite term, not legal, 886. For a number of years, at a nominal sum, legal, 886. Written notice of renewal of, 882. Letter- Containing proposals, 866, 879, note, 881. Material ordered by, 884. Liability of United States for preventing per- formance of, 935. Liens, 945-947, 952. Limitation clause in appropriation act confined to fiscal year to which it pertained, 893. Liquidated damages, 918, 921-923, 937, 939. Locality, 964. Lowest bidder, 850, 852, 855, 869. Made in absence of appropriation, 847. Material and labor, 945, 947, 949-952. Member of Congress not to be interested in, 895. Mistake by bidder, 869, 871, 872. Modifications of, 563, 571, 572, 856, note, 857, 858, 907-911. No statute requiring guaranty or bidder's bond, 569. Not necessary to embody requirements of eight- hour law in, 1237. Not to depart from advertisement, 856, 857. Not to extend beyond fiscal year, 886. Obligation of bidder after opening of bid, 567. Open market — Purchases—, 859, 862, .864, 865. Reports, 859. INDEX. 815 Contract — Continued. Oral agreement, 880, 883. Partner, authority of, to execute, %6. Payment to members of firm of contractors, 942. Penalties. 918, 919, 9'JO, 9J1. Percentage can not be retained under new, 924. Permanent appropriation, use of unexpended balance of, 894. Persons in the military service, purchases from, 896, 956-959. Power of attorney to receive moneys coming due on, 899. Printing for headquarters of military depart- ments. 852. Proposal — Acceptance of, does not bind United States to enter into contract, 879. Acceptance of, does not constitute contract, 879, 880. Rejection of, 855. To be accompanied by guaranties, 877. Purchase and completion of work by Govern- ment, 913. Purchases, patents, 1885, 1886, 1888, 1890, 1891. Quarters, 888. Recovery upon quantum meruit, 854, note, 879, note. Release — From due performance of, 926, 927, 928, 929, 930, 931. From pecuniary liability, 918, 921, 922, 923. Of rights of United States under, 932. Relief from losses suffered by contractor, 926-928, 931, 932. Requiring for their validity the approval of the Secretary of War, 956. Rescinding of. 849, note, 934. Reservation as to rejection of bids, 855, 869. Retired officer, 957. Return of deposits on, 961. Revised Statutes, 846, 848, 849, 853, 859, 861-86.5, 869,879,880-882,884, 886-890, 892, 894, 895,897, 899-901, 903, 904, 906. 940, 945, 951, 955, 968. River and harbor work, 2301. Emergency, 863. Secretary of War without authority to release guarantors, 876. Set-off, 937, 938, 939. Subcontractors, 944-946, 948, 949. Subsistence, 888. Substitution of new man as contractor, 927, 945. Supplemental, 773, 908, 909, 911-917, 928, 929. Supplies— For Quartermaster's and Subsistence depart- ments, 850. For War Department, etc., 849. Methods of purchasing, SSO. Sureties- Assent of, to material changes, 908. Not liable upon withdrawal of bid before ac- ceptance. 870, note. Withholding of funds to indemnify, 952. Termination of, by su])plemental, 913, 914, 917. Contract — Continued. Terms of, can not authorize what statute law prohibits, 389. Transfers of, 897-901, 903. Transportation, 888. Unliquidated damages, 763, 769, 917. Use of amounts reser\'ed in payment for work not yet appropriated for, 891. Volunteer officer, 957. When contractor bound by, 931. Withdrawn after acceptance, 879, note. Withholding money — Due to satisfy debt due another department, 937. Until balance due be mutually agreed upon, etc., 940. Without guaranty valid, 877. Work done by hired day labor, 861. Written, 879, 880, 881, 882, 883, 884. Contract surgeons, 63 A. W.; 384-391: (See Acting assista7it or contract surgeons.) Act of May 12, 1898, 389, 390. Amenability to military jurisdiction in time of war, 384, 385. Authority to employ, 385, 388, note. Burial expenses, 388, note. Can not be compelled to remain in sersice after expiration of contract, 391. Civilian physician not serving with a miUtary force, etc., 388. Commutation, 389. Duty, pay, etc., 385. EnlLsted man employed as, 386. Entitled to purchase fuel from Quarterma.s- ter's Department, 390. Entitled to witness fees, etc., 384. Have no military rank or status, 384. Mileage, 388, note. Xot eligible for medal of honor, 1656. Not eligible to detail on courts-martial, 384. Xot enitled to benefit of act of March 3, 1885, 387. Xot military officers, noncommissioned offi- cers, or privates, 384, 385, .388, note. Xot subject to military orders in general, 384. Contractors: (See Contract.) As to constructions of eight-hoiu- law for, 1237, 1238. Attachment of money due, 941, 1432, 1434. Bonds, dispensing with, 570. For personal services, not in general required to give bond, 566. ConTalescents, Hospital Corps, 145:5. Conveuinsr authority, 1009, 2227. Conventions. Mexico, 1832. Conveyance, right of way, 2267. Convict labor. 953. Convicts: Delivery at penitentiary, 1472, Unexecuted punishment, 1869, note. 1870, 1871. Convicted felons, enlistment of, 1258, 1259, 1273. Conviction : Approval of, 1062. 81 G INDEX. ConTictloii — Continued. Disapproval of, 1062, 1074. Cooks: Enlistment of Japanese as, 1282. . Extra-duty pay, 1340. For civilian teamsters, 28. Pay of, while in arrest, 1969. Copies: Bonds and contracts, 949, 951. Charges against oflflcer, what constitutes service of, 180. Charges, officer entitled to, 71 A. W.; 180. Orders and papers, authentication of, 1312. Records, etc., as evidence, 1293-1295, 1309, 1310, 1312, 1313, 1316. Records of trial, furnishing of, 114 A. \V.; 359- 365. Copyright : Compilation from public records, by official, 970. Drill regulations by officer, 969. Validity of, when officer acts officially, 971. Coroner, right of, as affected by cession of juris- diction, 689. Corporation: Authentication of charter, etc., of, 623. Nature and power of, 2120. Corps ; Command of, when serving together, 122 A. W. Judge-advocate, duties of, 1.555, note. Corps commander: Court appointed by, 81 A. W, General court-martial appointed by, 72 A. W.; 191. Correction : Of record — By reviewing authority, 2230,22.56. From day to day, 2258. Revision, 2249-2252, 2254-2258. Correspondence witli enemy, 46 A. W.; 62. Counsel: Application for, by officer to prosecute claim, 976. Assignment of, to defend officer, 975. Authority for employing, 983. Civil, at expense of United States, 991. Claim for, by accused, subordinate to interest of service, 985. Claim of, for services to enlisted man, 974. Claim of officer for services as, 795. Commanding officer as, 988, 989. Compensation of, 982, 983. Detail of officer as, by post commander, 988. Duties of, 990. Eligibility of officer to act as, 987-989. Employment of, by Attorney-General, 972, ,>73, 978. Interviews with the accused and \vitnes.ses, 986. Power of courts-martial to assign, 987. Qualification of, for practice before War Depart- ment, 981. Right of accused to, 984. To assist judge-ad vocte, 982, 983. To defend Indian, 979. Counsel — Continued. To examine title to lands, 980. To prosecute suit for enli.sted man, 977. Counterfeltins:: .Signature, 60 A. W.; 109. County offlee: Army officer holding, 1817. Courts: Authentication of copies of records, 1845, 1846. Civil, restrained by martial law, 1641, 1644. Evidence — Copies of records, etc., as, 1845, 1846. Discharge of .soldiers, 1843. General or special orders, 1843. Muster rolls, 1843. Official papers, 1843. Privileged communications, 1843. Liquors, in Indian country, to decide nature of, 1500. Military, determination of sentences, 2308,2309. Provost, in civil war, 1577. Regimental, limitation of prosecution, 318. Summary — (See Summary court). Of claims, 769, 770, 774, 776, 781, 782. Call for information or papers, 2306. Improper payment of mileage, 2305. Limitation of jurisdiction, 781. Of inquiry — Authentication of proceedings, 120 A. W. Cases where not ordered, 366. Compensation for witnesses of, 2173. Compensation of expert witnesses, 2483. Composition of, 116 A. W. Contempts of court, 118 A. W., note. Copy of record, 364. Defined, 366, note. Expenses of clerk of officer ordered before, 813. Militia, 1735. No limitation regarding, 318. Oath of members and recorder, 117 A. W. Opinions — Dissenting, 370. Nature called for, 371. Not sentences, 369. Of, 119 A. W.; 369-371. On legal questions, 371, note. Ordered by inferior commander, 367. Procedure of, 368. Proceedings as evidence, 121 A. W.; 372. Reopening of action on proceedings of, 2296. Right to challenge, 368, note. When and how ordered, 115 A. W.; 366-368. Witnesses, 118 A. W. United States, writs of habeas corpus, 1443. Cowardlee, 42 A. W.: Or fraud, publication of officers for, 100 A. W.; 301, 302. Court-martial: (See Courts-martial general.) Accused — As witness before, 2461. Not entitled to trial by, 1062, 2441. Acquittal, disapproval of, 2245. INDEX. 817 t'ou rt - III iirtlal — Con tin nod . Acting assistant or contract surgeons not eligi- ble to detail on, 384. Adjournment of, ISIS. Adjournment sine die, 1004. KiOft. (See Ad- journment.) Admission of evidence after plea of guilty, 198S- 1993. After discharge for offenses committed before discharge, 1027. Amenability — For offenses while in confinement awaiting trial, 1030. Of persons to, 102fi, 1027. To trial for desertion committed during prior enlistment, 1028. Amendment of record, 2242, note, 2254. Animadversions by, upon others than accused, 1015. Appointment of—, 72-74 A. W.; 182-192. By accuser or prosecutor, 72 A. A'.; 186-189. By corps commanders, 191. by the President, 72 A. W.; 182, 189. Demand for, 183. In absence of commander, 185, 190. In time of war, 73 A. W. Objection to, 186. Approval of sentence, 104, 109 A. W: 323-335, 2227-2229, 2236, 2237, 2239-2244. (See Ap- proval.. ) Attachment, witness, 2479-2481. Authentication of— Action of reviewing authority, 2233. Proceedings, 1524. Authority — And function, 992-1023. And qualifications of president, 2043-2046. Over accused or witness, 997. Post commander to refer cases for trial, 2003. Presiding officers, 2044. To exclude persons, 1013. Behavior of members. 87 A. W. Calling of witnesses by, 1000. Challenges—, 88 A. W.; 234-255. Affect on proceedings or sentence, 247, 1007. Excuse of member by, 1007. Grounds for, 23.5-243, 252-254. Judge-advocate, 248, 255. Number, 248, 250. Relief of member without, 249, 251. Time for, 246. Charge quashed or struck out by, 990. Civil official — Execution of attachment by, 2481, note. Service of subpoenas by. 2471. Civilian— As jtidge-advocate, 1528. Members of, 1038. Witnes.s, compensation, 2173, 2406. Claim for services as counsel for accused officer, 795. Claim of member for services as clerk, 799. Court- martial — Continued. Class of offenses punishable by, 1024. Collection of debts by, 1023. Communications from convening authority to, 1009. Commutation of sentence by reviewing autiior- ity, 2229, 2235, 2243. Competency of — .ludge-advocate as witness, 2463. Member as witness, 2463. Reviewing authority as witness, 2464. Wife of accused as witness, 2462. Witnesses, rules governing, 2460. Confinement in penitentiary — , 97 A. W.; 288- 300. For larceny, 291. For purely military offenses, 288-290, 296. Term of, 294. Confirmation of sentence, 109 .\. W. Conflicting evidence, 2232. Congress remitting sentence of, 1880. Congress revoking proceedings of, 1880. Contempts—, 86 A. W.; 230-233. Punishment for, 2482. ("ontinuance— , 93 A. W.; 27.5-280. Absence of witness. 275, 277. Grounds for, 27.5-280, To procure counsel, 280. Convened by Secretary of War, 1021. Convening authority, 2227. Correction of record — By reviewing authority, 2230. On revision, 2249-22.52, 22.54-22.58. Counsel for accused, 984-991. Criminating questions, 2474. Death sentence, reviewing authority, 2227. Delegation of authority by reviewing author- ity, 2234. Demurrer, 1995, note. Depositions—, 91 A. W.; 256-273. Admissibility of, 256, 258-263. By whom taken, 264-265. Compensation for execution, 2484. Effect of United States and State laws, 272, 273. Execution of, 269. Fees, 270, 271. Of agents, 261. Of foreign witnesses, 260. Of high officials, 257. Procedure on taking, 269. To identify accused, 266, 267. Waiver and estoppel, 268. Designation of penitentiary by reviewing au- thority, 2240. Detail of officer on two courts at same time, 1017. Determination of sentence, 2079. Disapproval of sentence by reviewing authority, 2227, 2229, 2230, 2234-2236, 2238, 2245. Discharge affecting juri.sdiction, 1027, 1028. Dishonorably discharged soldiers serving con- finement, triable by, 1485, 1486. Discretion as to sentence and punishment, 2313. 1()906— 01 -52 818 INDEX. < ourt-m;ii-ruii— ( 'f)iitiiiiu-i]. Dissolution of, 1006, 2257. Depositions, not admissible in capital cases, 25f;. Duty of members as to votinj?, 2309. Eflfect of escai>e of accused during' trial, 1014. Effect of i)rocess of a State court, 742. Effect on. of appointment of fruardiaii over offi- cer for habitual drunken ncss, 1040. Eligibility of medical officers to serve on, 1659. Erroneous statement of regiment or corps of members, etc., 1859. Evidence — Not taken on revision of record, 22oS. Pertinency of, 2473. Records of courts of inquiry as, 121 A. W'.: 372. Statement of accused, 2352, 23.53. To impeach witness, 372. Excessive punishments, 2318, 2324. Expenses of trial by, stoppage, 2380, 2385. Express disapproval by reviewing authority, 2229. False .swearing, 1985. Fatal defect in proceedings, 2242. Field officer's court, 80; 110 A. W. Finality of executed sentence, 2323. Findings, change of by reviewing authority. 2239. Furnishing list of witnesses, 2465. High official as witness, 2469. Hours of ses.slon, 94 A. W.; 281-284, 2397. In closed session, judge-advocate excluded, 1547, 1548. Indicating president unnecessary, 1860. Inferior, sentence in excess of legal limit, 2324. In militia, 1735. Inquiry. (See Courts.) Insane person incompetent as witness, 2460. Judge-advocate— (See Jud[ifi-a(l vacate.) Duties of, 90 A. \V. Excused by, 1008. Jurisdiction — , 2404. Nonterritorial, 1041. Over civilians, 1031-1034. Over offense against officer separated from service before trial, 1037. Over offenses committed in foreign country, 1041. Over per.son of officer or soldier, 1035. Legal nature of, 992. Locality of trial, 1025. Meeting without transaction of business, 2141. Member — Acting as judge-advocate, 1526. Civilian as, 1038. Divulging finding or sentence to clerk, 798. Excused by, 1007. Excused to act as counsel for accused, 987. Joining in recommendation, 2134. Militia and army officers together on, 1735. Mitigation of sentence—, 2294, 2312. By President, 2040. By reviewing authority. 2229, 2235, 2243. Modification of action of reviewing authority, 2235, 2236. ( on rl- III art in I — Continued. ' Notice of action of reviewing authority. 2244. Oath— Of judge-advocate, 85 A VV.; 274. Of members, 85, 225-229. Of witness, 92 A. W.; 274. Officer, reviewing authority, 2227. Officers subject to detail on, 1022. On what court regular officers may sit, 77 A. W.: 21.8,209. Opinion of judge-advocate, 1536. Order- Convening, dated Sunday, 18.57. Dissolving, 1860. Of promulgation not necessary to validity, 1860. Promulgating sentence, 2236, 2237 2241-2244. Reassembling for revision, 2250. Ordinary correction of record from day to day, 2258. Pardon, 2229, 2235, 2243. Pardon and mitigation, 112 A. W.; ,341-358. Pardon as affecting jurisdiction of, 1998. Pay under sentence of, 1896, 1919. Paymaster's clerk, 1970. Plea and statement of accused inconsistent, 1990, 1992. Plea in abatement, 1995. Plea of guilty, withdrawal of, 1994. Polling of votes, 1011. Power of, statutory only, 1018, 1019. Power of, to compel accused to criminate him- self in, 1020. Presence of accused on revi.sion, 2252. President bound by vote of majority, 2046. President, reviewing authority, .2227. Previous convictions, 2047-2054. Procedure of, 993. Proceedings, affidavits affecting, 187, note. Promulgation of action of reviewing authority, 2235-2237, 2241-2244. Prosecution, closing argument, 2355. Prosecutor, 90 A. W.; 2078. Protest by minority, 2079. Punishment, adding to, by reviewing author- ity, 2230. Punishments prohibited, 2314. Qualifications of president, 2043. Recall of action of reviewing authority, 2235, 22;?6. Recess if noted in record, 2136d. Recommendation of accused to clemency, 2132, 2135. Recommendation of punishment in orders, 995. Reconsideration of action by revlewiiig au- thority, 2241. Reconvening of, for revision, 2249-2251,2254-2257. Record of, 2136-2146. (See Record ) Referring of charges to, 998. Refusal of, to proceed with trial, 996. Regimental. (See Regimental courts. ) Remarks of, concerning witnes.ses, 1016. Remission of sentence by reviewing authority, 2229, 2235, 2243. INDEX. 819 Court-martial — Continued. Repijrters for. 1>I3, 216S-2173. Re>p>onsibility of, in regard to record of, 2140. Restoration to citizenship, 1872. Reviewing authority. President as, 2010. Re\"ie\ving oflBcer. statement of accused, 2353. Revision of record, 2231, 224^22-52, 2254-2258. Revocation of action of reviewing authority, 2243. Senior member a,s president, 2043. Sentence — Affected by finding, 2312. Death. % A. W.; 285-287. Dismissal. 1^9, 1852. Excessive. 2313, 2314. Extension of service, 2316. In excess of limit, reviewing authority may reduce. 2237. In time of war, etc., 58 A. W.; 90, 91, 93. Xull and inoperative. 1^516. Of, not invalidated oy keeping accused ironed during trial, 2441. Remis-sion, 2;?13. 2314. To deposit pay, 1913. When irre-versible. 2041. Session clo.^ed to public, 1012. Sitting on Sunday. 1010. Statement of accused. 2352-2356. Statement, written, of members as to meaning of sentence, 2255. Stoppage of expenses attending trial, 2380. Subpoenas for witnesses. 2471. Summons of -svitness. 2468-2470. Suspension of officer's pay. 101 A. W. Suspension of one case and trial of another, 1003. Testimony — After close of case, 1001, 1002. After plea of guilty, 994, 1002. High official, how taken, 2469. Modification. 2472. Xot to be taken on revision, 22.53. Trial by, after expiration of term of service, ia29. Trial for same offense by military and civil court. 1036. Trial of citizens by, .58. Vote of court, 1364, 24-56. Voting, order of, 95 A. W. Witness — At preliminary inve.stigation, 2477. Attached, punishment for contempt, 2482. Attachment to compel attendance, 2479-2481. Ci%-ilian, 231, 2:32. Compensation, 2484, 2485. Compensation of expert, 2483. Competency, 2473. Compulsory processes, 2478. Discharge from attendance. 2473. Execution of attachment, 2481. Fees or compen.«ation, 384. 247.5-2477, 2485. When sentence beyond Executive control, 2041. Withdrawal of recommendation, 2133. Cuurt-martial. erarrison. 82 A. W.: 214-218: Detail of self. 215. Juri.sdiction. 83 A. W.; 219-224. Oath of members, 84 A. W.: 225-229. Place appointed. 216, 217. President of court as revi#ring authority, 218. Sentences. 220-224. Supervi.sion of. 213. Courts-martial, sreneral: Accused can not take advantage of error of, when, 1308, note. Acquittal, effect of, on forfeiture, 1062. Acquittal of charge of desertion, 1093, 1359. Acting assistant or contract surgeon entitled to witness fee, etc.. 384. Adjournment of, 203. (See Adjournment, ) Affidavits as evidence, 1292. Aids-de-camp eligible as members of, etc., 396. All defendants equal before the law, 1049. Appeal, 407. Appointment of—. 72-74 A. W.; 182-192. Absence of commander, 185, 190. Affidavits affecting, 187, note. By accuser or prosecutor, 72 A. W.; 186-189. By commander of separate brigade, 73 A. W. By corps commander, 191. By division commander, 190. By President, 72 A. W.: 182, 189, 2038, 2039. Demand for, 183. Discretionary, 183, 184. In time of war, 73 A. W. Objection to, 186. Approval of sentences. 104-108 A. W.; 2294. Arbitrary rejection of statement of witness. 136.5; note. Arrest not essential to trial by, 502. Authenticated copies of records as evidence, 1312. Authority to convene, 72 A. W. Can not direct as to collection of fine. 1371. Composition, 75-79 A. W., 199-211. Convened by Secretary of War, 2039. Conviction of absence without leave on charge of desertion, 1093, 1359. Copies of records of. as evidence. 1309. Copy of record, pariy entitled to, 114 A. W.; 359- 365. Copy of report of Judge-Advocate-General on, 362. Death sentences, confirmation of, 105 A. W. Defense to charge of desertion. 10.58. 10-59. Disapproval of conviction, 1062, 1065, 1074. Discharge of retired enlisted man by, 2218. Disclosing findings or sentence, to the prejudice, etc.. 159. Dishonorable discharge restricted to, 2402. Dismissal of officers, 99 A. W. Disposition of proceedings, 113 A. W. Documentary evidence, 1294, 1312. (See Eri- dence. ) Effect of approval or disapproval of conviction 1062, 1065. Empowered to adjudge dismissal. 119»5. 820 INDEX. €ourts-marthiU sreneral — Continueil. Evidence obtaiiu'd by subpoena duces tecum, 1295, 1296. Finding, 1352-1368. Fine imposable only as a punishment by, 1369. Fine to pay cast of i#tendance of witnesses, 1372. Judge-advocates, appointment of, 74 A. W. (See Jndfie- Advocate. ) Jurisdiction of, 87, 89, 1647, 2404. Latitude in introduction of evidence, 1285. Legality of, 186. Limitation of prosecution, 103 A. W.; 314-322. Manslaughter, murder charged as, 148. Marine and Regular Army officers associated on, 78 A. W. Membets of—, 75 A. W.; 199-209, .507. Active officers only, 199, 200. Arrest of, 507. Chaplains, 199. Less than five, 201-204. Less than thirteen, 207. Relieving, 205. Military commission compared with, 1677-1679. Military offenses not felonies and misdemean- ors, 93. Murder, jurisdiction, 148. Not empowered to accept bail, .527. Oath of members, 84, A. W.; 225-229. Offences committed in time of war, etc., 58 A. W.; 93. Officers triable by, 79 A. W.; 210, 211. Orders convening, 2294. Physical restraint of accused, 1047. Presence of accused at trial by, 1048. Proceedings to Judge-Advocate-General, 113 A. W. Provocation not a defense, 10.50, 1051. Punishment in foreign country by, 92. Recording votes of individual members, 136S. Records of, omission in, 196. Refusal of witness to testify, to the prejudice. etc., 159. Reporter, extra-duty pay, 1345. Requisite number officers not at post, 76 A. W. Rules of evidence, 1285, 1286. Sentence of death, 96 A. W.; 28.5-287. Sentences of dismissal, confirmation of, 106, A. W.; 336-338. Sentence of, expressly slopping amount of reward, 1075. Surrender of prisoner under sentence of, 98. Testiratniy of insane person, 1307. Tie vote, 1364, 2456. Todetinitely fix amoinit of forfeiture, 1379. Trial— For offen.se within jurisdiction o »(/,<.) Acc(iuntal)ility of, for payments on false vouch- ers, 1123. Attachment of money in hands of, 14.31, 1432. Bonds, 596. Claim for funds .stolen from, 782. Disbursing agents, defalcations of, 1127. Disbursement of appropriation under direction of Secretary of War, 1125. Gambling, 1430. Inspection of di.sbursements of appropriations, 1128. Legal remedy to recover for payments on false vouchers, 1124. Liable for amount paid on forged voucher, 1410. New bond, .556. Penalty envelope, 1980. President may require bonds of, .541. Public moneys in public depository, how drawn, 1126. Who are, 1129. Discliarge : (See Dismissal. ) Affecting trial for desertion committed during prior enlistment, 1028. After restoration to duty, 1144. Allowance due and to become due, 1919. Amenability after, 1166, 1167. Amenability to trial before notice of, 1039. Amendment of rolls and records by authority of Congress, 1151. Army,, restoration to, after, 1869,1870. At expiration of term, when awaiting sentence of court-martial, 1156. Before expiration of term of enlistment. 1262, note. Board to determine facts witli respect to char- acter to be given on, 1187. By order, 1131, 1136. By purchase — Application, 1172, 1175. Authority to grant, 1170, 1174. Desertion after making deposit, 1175. Disposition of money paid upon, 1173. Refunding of money paid upon, 1174. When service not honest and faithful, 1170. By sentence — ' At a date to be fixed by reviewing authority illegal, 1147. Effect of remission on, 1870. Execution of, 1146. By way of favor — Application, 1171. Authority to grant, 1171. Travel allowances, 1171. Certificate of, 1132, 1152, 11.53, 1161, 1164, 1174-1179. Certificate not necessary to discharge, 4 A. W., note. Character, 1130, 1158, 1187. Classification, etc., 1130. Date of, 1154, 1155. 824 INDEX. Dlsi-harsre— Continued. DatiiiK from muster-out, 1759. Doserter's release, 1159. Desertion does not operate as a, 1157. Duplicate certificates of, 1177, 1178. Dishonorable — A complete expulsion from Army, 1167. Accruing interest stopped by, 1052. By sentence of military commission, 1694. Can be given only by sentence of court-mar- tial, 1130, 1164. Commutation of, 347, 348. Does not terminate any particular enlistment, 1167. Executing of sentence of, 1155. Forfeiture of pay, etc., 1878, 1380, 1389, 1392, la93, 1397, 1402, 1403, 1405. Forfeiture of travel allowances by, 1168. For fraudulent enlistment, 1423. Given as a punishment, 1167. Imposition by summary court, 2402. Involved in .sentence, 1164. Military commission may adjudge, 1165. No disqualification for civil emplojinent under U. S., 1149. Practice to specifically adjudge, 1164, note. Prima facie evidence that service was not honest and faithful, 1268. Remission of, 350, 3.51. Retained pay, 1168, 1937. Executed, revocation of, 1140, 1143, 1150. Enlisting without, 1418, 1419. Evidence of, 1152, Final statements no part of, 1157. For disability, etc., delegation of power to, 1184. Fraudulent, 109. From national guard, enlistment not a, 1281. From service, 1879. Given by mistake, 1140, 1141. Habeas corpus. (See Habeas corpus.) Honest and faithful service, 1266-1268. Honorable — After remission of sentence, 1870. As a prerequisite to bounty, 605. By acceptance of resignation, 2191. For dismissed volunteer officer, 2445. Terminates enlistment to which it relates only, 1166. To dismissed officer, 1200, 2368. How made and by whom given, 4 A. W. Insane soldier, 1162. Interest of public paramount to right of parent, etc., 1258, note. Issuance of duplicate certificate of, 2363. Non-commissioned officer may retain warrant on, 2150. Notice of, 1152, note, 1153, 1157. Obtained by fraud, 1140, 1142. Of clerk of War Department, application for resignation after, 805. Of deserter who again enli.sted, 1145. Of enlisted men for disability, etc., 1184. Disc liarire— Continued. Of men enlisting during the war, under G. O. 40, A. G. ()., 1.S98, 1186. Of minor — Awaiting trial or sentence, etc., 1181. Emancipated, 1189, 1190. Evidence of age, 1188, 1191. For fraudulent enlistment, 1182. Upon application of parents or guardian, 1180, 1181, 1188-1191. Summary, while in confinement, effect of, 1477. Of retired enlisted men — By executive order, 2218. By sentence of courts-martial, 2218. Of soldier absent in desertion when volunteer armies were disbanded, 1160. Of soldier after dLsbandment of volunter army, 1161. Of son of slave under name of his father 117^. Operating as a remission of forfeiture, 1392. Order purporting to revoke, illegal, 1140. Pay to date of, 1895. Publication of sentence of, does not operate as a, 1157. Reappointment of dismissed officer, 1883. Rejection of drafted man not a, 1226. Not retroactive, 1851. Right of soldier to, 4 A. W. Sale of clothing by soldier after, 2276. Sending of insane prisoners to Government Hos- pital for the Insane after, 1163. Soldier can not' be arrested as deserter after, 1076. Soldier can not discharge himself, 1157. Statement of character no part of, 1158. Subsistence to place of enlistment, 1919. Substitution of honorable for dishonorable, etc., 1140, 1150. Summary—, 1130, 1131, 1135, 1148. A discharge without honor, when, 1130. For fraudulent enlistment, 1414, 1423. Of officer, 1130. Pay and allowances, 1423. While serving sentence, 1477. Suspension or revocation of order directing, 1140. Title of soldier to clothing, 2276. Upon habeas corpus, 1085, 1107, 1180, 1183. Upon reduction of Army to a peace basis, 1185. Volunteer enlisted men, 2452. Waiver of trial by, 1027. While in ccmfinement under sentence—, 1148. At expiration of term of service, 1148, note. Without character, 1138, 1139. Without honor—, 1130 After acquittal by court, 1137. At expiration of service, for di.sciualilication for service, etc., 1169. Clothing allowance with, 825, 826. INDEX. 825 Dlscharifc— Continued. Without honor — Continued. Does not forfeit clothing money, except for fraudulent enlistment, 1132. Forfeiture of retained pay incident to, 1132. Forfeiture of travel allowances not an inci- dent of, 1132. For fraudulent enli-stment, 1275, 19.30. For refusing to obey orders, 1133. Fraudulent enlistment, 1419. 1420. Not a punisliment, 1132. Of cadet, for demerits, 1134. Of minor, for fraudulent enlistment, 1182. Of officer, for absence without leave, 1135. Of officer, for unfitness caused by his own fault, 1135. Service not honest and faithful, 1267. Upon remission of sentence, 1132, note. Where record of trial was fatally defective, 1132, note. Disriplliiary punisliment: Arbitrary, 1195,1855. Prior to trial and sentence, 1875. Unjustifiable—, 1192-1194. Amenability to trial for, 1192, 1193. Violent, 1192, 1193,1194. Dlseloshisr wati'hnord, 44 A. W. Dislionoriilile discharsre. (See Dtschar(je.) DisniisNal: (See Discharge.) Approval, revocation of, 1202. Army, restoration to, 1809, 1870. A.s afl'ected by promotion, 1211. By appointment — And confirmation of succes.sor, 120tj-1209. Of successor by Governor of State, 1208. By department or army commander, 1206. By order — As distinguished from sentence, 1203. Constitutionality of law authorizing trial subsequent thereto, 1218, note. Construction and operation of the law author- izing trial subseqtient thereto, 1218-1224. Does not disqualify for appointment to office, 1212. Of the President to cancel muster-in of offi- cer. 1210. Revocation of, 1214-1216. Statute atithorizing dismissed officer to apply for trial, not retroactive, 1218. Subsequent trial of officer, etc., 1218-1224. Taking effect of, 1204. By Secretary of War the act of the Presi- dent, 1205. By sentence — , 1196-1202. Cashiering, 1196. Confirmation of, 1197-1199. Legal disability, 1201. Notice of. 1197. Taking effect of. 1197, 1198. Courts-martial empowered to adjudge, 1196. Dating back of, can not deprive of pay, 1213. De facto officer, 1215, 1216. Executed .sentence or order of, 1199, 1200, 1202, 1214-1216. Dismissal — Continued. Exclusive of other punishment. 174. Forfeiture, 1393. Officer, 99 A. W. Honorable discharge, etc., in lieu of, 1200. In time of peace- Confirmation of, 106 A. W.; 336, 337. Form of confirmation, 337. In time of war, confirmation of, 107 A. W; 338. Of member of court during trial, 1666. Of regular and volunteer officers by President, 1210. Of unassigned officer, 1217. Order confirming sentence, 1849. Order purporting to revoke executed order of, 1214-1216. Pay to date of, 1895. Power of, as vested in the President, 1203. Ratification of irregular confirmation, 337, note. Reappointment of officer, 1883. Remedy for officer after, 2323. Remission and mitigation of, 341. Restoration of dismissed officer, 1199, 1200, 1202, 1214-1216. Ruling in the Blake case, 1207-1209. Sentence of—, 1849, 1852. Commutation to suspension, 2419. Illegal, 1199. Suspension of. 111 A. W.; 339-341. Volunteers, restoration after, 2445. Without authority, 1206. Disobedience, etc. : Of noncommissioned officer, how charged, 21. Of orders — Held not lawful, 24. Of superior officer, 21 A. W.; 22-30, 1853. What consists in, 25. Of unlawful order not mutiny, 32. Disorders, etc. : Who may quell, 24 A. W. Disiiuallflcation: To hold office— A punishment, 1225. Dismissal by order does not attach, 1212. Removable by pardoning power, 1225. Sanctioned by precedent in the Army, 1225. Disrespect to commanding- ofBcer. 20 A. W.; 14, 1.5, 143. Disrespectful words, 19, 20 A. W.; 13, 15, 143. District of Columbia: Adjutant general of, 1830. Appointment in volunteer regiment, 1813 Arms, etc., issued for militia of, 1739. Bond of guardian, 1517. Martial law existing in 1863, 1(543, 1685. Right of official of, to enter military reserva- tion within, 1705. Divine service: Misconduct at, 52 A. W. Division commander: General courts-martial appointed by, 73 A. W.; 190. 826 INDEX. Division: What constitutes, 192. Divorce: rroccediuss, false, 141. Docuiuciitary evidence, 1298. 1294. 1309-1317. Donations: Of coiulennieil eannoii for liettysburg battle- lield, 461. Of land, etc., authority to accept, 1491. Of money to the United States, 4H2. To post exchange, 2009. Doui>le compensation: Extra-duty pay, 1329. Draft : Enrollment, 1226, 1227. E.xempting provisions of the law, 1232. Failing to report to board of enrollment, 1114. Men failing to report become deserters, 122G, 1230. Muster-in not necessary. 1226, 1229, 1231. Object of, 1228. Of deserter at large, 1118. Rejection of drafted man not a discharge, 1226. Reporting at rendezvous, 1226, 1230. Substitute, muster in of, not necessary, 1231. Druiilveiiness: .\dmissibility of as a plea, 1233, note. As an excuse for crime, 1233. As evidence of criminal intent, 1233. At hour of duty, 44. Before entering on duty, 43. Cause for retirement, 219(). From drug prescribed by physician, 1234. Of officer while absent from his company, 46. Off duty, officer in uniform, how charged, 129, 130. Officer engaging in tight, how charged, 130. On duty — , 38 A. W. How induced, 51. Nature of, 49, 50. Of medical officer, 48. Of po.st commander, 47. Punishment for, .53,54. Specification indefinite, 712. While officer of the day, 45. To the prejudice, etc., how charged, 151. rpon arrival at post, 46. When not on duty, how charged, 52. Drill reiruliitions: Copyright of, by officer, 969. Drill, of militia: Not in power of President, 1733. Drivers, etc. : Trial of, 162. Drummed out of service: Sentence to be, involves dishonorable dis- charge, 1164. Duels, 26, 27, 28 A. W.; 35,159: Inciting to challenge to, to the prejudice, etc., 1.59. Duty: Conniving at hiring to do, 37 A. W. Detached, commutation of rations, 1959. Drunkenness on, 38 A. W.; 47-51,53,54,712. Duty— Continued Extra or special, extra-duty pay, 1339. Hiring to do, 36 A. W. Soldiers off, 1866. Termination of arrest by placing on, 505. Dum]iiiii.' done in naviiralile waters, 1786, 1787, 1794. Duplication of pay accounts. 145-147, 1892, 1893. Duration of confinement. 70 \. W.: 177. Dwelling: (Sec Warrant.) Private, entrance into, by military authorities to effect arrest, 613. Easement: (Conveyed by deed, release of, 1045. Effects of deceased officers: Accountability for, 127 A. \V.; 373. Inventory of, 126 A. W. Effects of deceased soldiers: Accountability for. 127 A. W.; 373. Inventory of. 126 A. W. Effects of officers stolen from United States, storeliouse: Claim for, 793. Eight-hour law: Allowing men time, with pay, to vote on elec- tion day, 1243. As to embodying requirements of, in contracts. 1237. Construction and operation of, 1236-1245. Construction of levees on Mis.sis.sippi River a public work, 1236. Duty of enforcing, 1237, 1245. Extraordinary emergency, 1239, 1240, 1242. Laborers or mechanics, construction of term. 1241, 1-244. Proprietorship in or jurisdiction over thing con- .structed not neces.sary to operation of, 1236. Public works of the I'nited States, construction of term, 1235, 1236. Suspension of operation of, 1240. Violations of, 1245. Ejectment after revocation of li(^ense, 1609. Emancipated minor: Discharge of, 1189, 1190. Embezzlement, 60 A. W.; Ill, 114, 115, 117-121, 149. 154-157, 2081, 2083: Defense, 166. Defined, 1,64, note, 1-56, 1.66. 157. Evidence of, 114, 120. How charged, 111. 119. Illegal and tmauthorized payments from public funds, 167. Illegal withdrawal of public funds from a de- pository, 1.64. Not accounting for public money received, 156. Of public property made a felony by civil stat- ute, 121. Public money, 2081, 2083. To tlie prejudice, etc., 149, 1.54. Trial for, after separation from .service, 117, 118. Emergency: (See Contract.) Fund. 4-56. I'nder eight-hour law, 1239, 1240, 1242. Eminent 1. Civilian, in military service, contracts, 896, 959. Of Record and Pension Bureau, War Depart- ment, detail of, in 1893, 802. Of United States, compensatir)n for invention, 845. Per diem, claim for pay for holiday, 792. Eniployiiieiit of rftlrtMl oiillstetl men, 2219, 2220. Ennny : Commercial intercourse; with, 60, 61. Correspondence with, 46 A. W.; 62. Giving intelligence to, 46 A. W.; 63. Harboring, 45 A. \V. Intercourse with, prohibited, 156V. Meaning of term, 59. Misbehavior before, 42 A. W., 56. Protecting, 45 A. W. Public, testimony of, 1297. Relie^^ng— , 45 A. W.; 58, 60, 61. By citizens, 58. By military persons, 58. Trading with, 60, 61. Engineer corps or officer: Appointment of otlicer on International Com- mission, 1832. Assignment of officers on Debris Commission, 1249. Detail of sergeants in battalion, 1248. Disposition of charts of the lakes by, 12.50. Employment of officer by State or municipal- ity, 1817, 1818, 1829. Establishment of harbor lines, 2272. Examination for promotion, 1319. President of American Society of Civil Engi- neers, 1828. With civil commission, 1827, 2272. Engineers, Chief of: Authority to grant leaves of absence, 1597. Court appointed by, 212. Eniflneers, etc. : Trial of, 162, 163. English liuiguagc: Ignorance of, 1875. Enlisted men: (See Enlisfmcnt.) Absence without cause, 1841. Absent from special muster, 1841. Accrued pay of, 1895. Acquitted by United States court, transporta- tion, 1967. Age, 12-58, note, 1276, 1283. Allowance for quarters and fuel, 1956. Appointment — As commissary-sergeant, 838. As post quartermaster-sergeant, 2018. KnIIsted men — Continued. Appointment — Continued. As .second lieutenant, after marriage or dis- charge, 428. Amenability of, to .suit or process of Territorial courts, 741. Amenability to .suit for divorce, 748. Arrest of, for offenses committed before enlist- ment, 106. As auctioneer, 2282. As reporters, extra pay for. 2172. Certificate of merit, 667-671. Citizenship of aliens, 736. Clothing allowance to, 816-828. Commissioned as officer, travel pay, 1921. Commutation of rations, 1860, 1862, 1957, 19.59. Compensation — As cook, no part of pay, 1969. For services as acting assistant surgeon, 841. Counsel — To defend in civil suit, 978. To prosecute civil suit, 977. Contempt of civil court, 749, 750. Deceased, effects of, 127 A. W.; 373. Deposits with paymaster, 1913. Detail as clerk for court martial, 798, note. Employed as contract surgeons, 386. Employment of, in United States Engineer De- partment, 1929. Examination for appointment as second lieu- tenant, 1321. False swearing by, 1985. Final statements, 1347-13.51. Forfeiture allowances by sentence, 1961, 1962. Forfeiture of pay of, 1902,1903,2401. Fugitive from justice, 1876. Furloughs, 1428,1429,2074. Habeas corpus. (See Habeas corpiis.) Holding civil office, 1819. Hospital Corps, 1447, 1449-1451. Improperly held in irons, 1875. Issue of duplicate discharge to, 2363. Marriage of, 1638. Must be citizens to be eligible for promotion, 403, 421. Obeying illegal order, 1853. Order, notice of, 18.50, 18.52. Pardon of deceased, 1866, note. Patronizing gambling houses, saloons, etc., order forbidding, 1856. Pay- After expiration of enlistment, 1895. And allowances, 1896, 1928, 1969, 2283. Awaiting result of trial, 1896, 1914, 1931. For certificate of merit, 1932. How deprived of, 1896. Prior to enlistment or muster-in, 1895. Reduction of, 1262. Reenlisted, 1911, 1912. Physical disqualification for appointment, etc., 427. Physical examination for appointment, 429. Promotion to officer, 2073, 2074. 828 INDEX. Enlisted men — Continued. Qualifications for examination, etc., for com- mission, 421, 422, 423, 425. Redress of wrongs of, 30 A. W. Restoration to service, 1841. Retention of residence by, 2179. Retired — Discharge of, 2218. Certificate of merit, 609. Retirement, 2216-2226. Right to claim discharge upon reduction of Army, 1185. Sale — Of intoxicants by, 2290. Of intoxicants to, 2287. Service, extension by sentence, 2316. Serving sentence, requisition for, 2176. Stoppages, 2374-2381, 2384-2385, 2387. Taxation of, 2179. Transportation of remains of, 479. Transportation to place of enlistment, 1919. Trial of— After separation from service, 118. By civil courts, 2318. By military and civil court for same offense, 1036. Volunteer, discharge, 2452. War-service, 2217, 2222, 2223. Wives of — As laundresses, 1638. In post, 1638. Enlistment: (See -Deserters; Discharge; Minors.) After dishonorable discharge, does not revive amenability, etc., 1167. After notification of discharge, etc., 75. Age, 1258, 1276, 1283. Alien minor, 1270, 1271. Arrest for offenses committed before, 106. Articles of War not read, 1875. As affected by reduction of pay, 1262. As to disqualifications for, 1421. Conditional, 1284. Constructive, 1255, 1256. Contract of, 1251, note, 1252, 1254, 1255, 1257, 1262. Convicted felons, 1258, 1259, 1273. Cooks, 1282. Deserters, 1258, 1260. Discharge — Before expiration of term of, 1262, note. Dishonorable, does not relate to any particu- lar, 1167. Of deserter from second, 1145. Discretionary power of Secretary of War as to honest and faithful service, 1266-1268. Docs not operate as discharge from National Guard, 1281. Evidence of, 47 A. W.; 1251, 1252, 1253. For three years or during the war, 1263. Fraudulent—, 62 A. W. ; 1260, 1275, 2221, 1412-1123. Collusion in procuring, 159. Discharge or trial of minor for, 1182. Forfeiture of clothing money, 1132. Forfeiture of travel allowances, 1132. Not void but voidable, 1414, 1415, 2221. E 11 1 1 stm eiit — Continued . ray under, 1930. Services under, purpose retirement, 2221. Furloughs, 1428, 1429. Habeas corpus, 1438, 1440. Honest and faithful service, 1266, 1267, 1268, 1272- 1274, 1275. In contravention of statutes and regulations, 1257-1260, 1275. In enemy's army by prisoner of war, 1095. In Marine Corps not .service in Armj', 1276. Indian—, 1269. Minor, 1265. Prisoner, 1280. Insane persons, 1268, note. Intoxicated persons, 1258 note. Last preceding term of, 1278. Liability incurred in former, stoppage, 2376. Married men, 1267. Minor—, 1258 note, 1875. Not void but voidable, 1258 note, 1264. Misrepresentations at, as to pardon, 1875. Naturalization, 1271. Not void but voidable, 12.58, 1259, 1260, 1275, 2221. Oath of, 2 A. W.; 1251. Of deserter from the Navy, 1422. Of deserters, 1120. Of person convicted of felony, 1695, note. On Sunday, 1261. Original, 1276, 1283. Pardon, 1272, 1273. Penalty envelope, 1976. Persons over age, 1258. Previous, pay under, 1897. Prohibited, 12.57, 125S. Reenlistment within three months, etc., 1279. Retained pay as to army service men, 1936. Second, stoppage of balance of forfeiture upon, 1391. Service of deserter, after expiration of, 2315. Soldier can not himself avoid contract of, 1180. Suspension of contract of, 1262, note. Term of, 1269. Termination of, by honorable discharge, 1166. Time of peace, 1277. Transportation to place of, 1919. Trial of deserter after expiration of, 69. Unlawful, penalty for, 3 A. W. Upon remission of sentence to penitentiary, 1274. Validity of, 1257, 1258, 1261, 1276, 2221. Voidable, not void, 1258, note, 1264, 1275, 2221. Without discharge, .50 A. W. Enrollment: Distinguished from muster-in, 1752. Entrance into private dwelling to effect arrest, 513. Envelopes, penalty, 1973-1981. (See Penalty enve- lope.) Equipments: Embezzlement of, 60 A. W. Larceny of, 60 A. W.; 113. Misappropriation of, 60 A. W.; 116. Receiving in pledge, etc., 60 A. W. Erie anil .Atlantic basins, New Yoric Harbor: Status of, 1786. INDEX. 829 Error: (Sec Mistake.) Correction of, in record, 2136 I: 2143, 2144. Error of court: Accused can luit take advantage of, 1308, note. Escape: A.s proof of desertion, etc., 1057. From confinement, when not desertion, how charged, 159. Killing of .soldier attempting, 1634, 1635. Of prisoners, permitted by officer, 69 A. W. Officers and soldiers, pardon of, 1876. Use of irons on prisoners to prevent, 1465, 1466. Estimates : Additional, for improvement of rivers and har- bors, 1494. Appropriations made in conformity with, 434, 435, 481. Establishnieiit of iiiilltiir)- reservations, 2294. Estoppel: (See C/aim.) In reopening claim after accepting reward under it, 763. Evideiiee: Accused person testifying in own behalf, 1300. Admission of, after plea of guilty, 1988-1993. Affidavits, 1292. (See Affidavit.) As set forth in record, 2136 h. Child, competency of as witness, 1306. Confession, 1299. Conflicting, 2232. Copies of records, etc., 1293-1295, 1309, 1310, 1312, 1313, 1315, 1845, 1846. Criminating questions, 1308, 2474. Descriptive list as, 1314. Deserter as witness, 1298. Documentary, 1293, 1294, 1309-1317, 1845. Error, accused can not take advantage of when, 1308; note. Expres.sions of opinion, 1289, 1290. Extenuating circumstances, 1301. ■ General or special orders, 1843. Insane person, competency as witness, 1307. Introduction of — After cIo.se of case, 1001, 1002. After plea of guilty, 994, 1002. Judicial notice, 1294. Letter written by accused, 1316. Matter of — In specification, 714. Not subject of plea, 1996. Morning report book as, 1313. Muster rolls, 1293, 1311. 1843. New, character of, 2295. Not tiikcn on revision of record, 2253. Of enlistment, 47 A.W.; 1251-1253. Of illegal sale of arms, etc., by soldier, 2275. Official papers, 1843. Orders and papers, authentication of copies of, 1312. Orders, printed official copies of, 1294, 1312. Pardon does not add to competency of witness, 1298. Evldeiiee — Contiiuicd. Parol, contract can not be varied by, 933. Patents, deed.s, etc., to lands, on file in War De- partment, copies of, 1309. Pay accounts, copies of, 1315. Pay rolls, 1311. Pertinency of, 2473. Presumption of law, 1302. Privileged communications, 1303, 1843. Previous convictions, 2047-2054. Proof of handwriting, 1316. Public enemy, testimony of, 1297. Record — Of board of investigation, 1291. Of courts-martial as, 121, A. W.: 372. Of courts-martial, authenticated copies, 1309. Refreshing of memory of witness, 1304. Rules of, 1285, 1286. Secondary, 1314. Statement — Of accused, 2352, 2353. ot service as, 2049. Subpoena duces tecum, 1295, 1296. Telegrams, 1295, 1296. Testimony — Given on a previous trial, etc., 1291. Latitude in introduction of, 1285. To sustain perjury, 1982. Wife, competency as witness, 1305. Witnesses, 1285-1287, 1288, note, 1289, 1297, 1298, 1304-1308. Examination: Act of October 1, 1890, construction of, 1322. Assistant surgeons, for promotion, 1318. Before muster-out, 1760. Board of — Approval of findings of, 1323. Retirement on report of, 2207, 2208. Candidates for promotion, 421-423, 429. Enlisted men, for appointment to commission, 1321. Failure to pass, 1321. For appointment.s — Limitation as to number of, 429. Physical, 429. For Ordnance Corps, 1863. Promotion — Officers, 1318-1320. While under sentence, 1320. Exclinnife funds: Loss, stoppage of pay, 2384. Exchange, post. (See Po^t cxchaiKje.) Stoppage of pay to reimburse, 1384, note, 1424, 1425. Executed order or sentence of dismissal, 1199, 1200, 1202, 1214-1210. Executed sentences: (See Pardon and Sentence.) Indemnification on account of, 1869. Of forfeiture, 1394. Executive: Advances authorized by, 1927. Authority to make regulations, 494 and note. Authority to modify regulations, 496, note, 499. 830 INDEX. ExecutlTe — Continued. Discharge from service, 1879. Discharge of retired enlisted men by, 2218. Dismissal by, 1898. Jurisdiction limited by Congress, 500. Pardoning power, 18C6, note, 18(57, 1868, 1869, note; 1870-1873, 1878-1882. Quasi conditional pardon of, 1882. Relief by, 2162-2163. Withdrawal of charge by, 1882. Executive Departnieiits: Accounting for ordnance stores, 1861. Arms and ammunition, issues, 2096. Authentication of official papers. 1846. Disposition of personal property of United States, 2090. Issue of arms and ammunition to, 1861. Land for interments, purchase, 2107. Old material, condemned stores, etc., 2282. President represented by heads of, 2294. Transfer of property, 2091. Executive Mansion: Appropriation for lights for grounds of, etc., 465. Expenditures on lands over wliich jurisdiction has not been ceded, 471. Extension of appropriation, 470. Extenuating circumstances as evidence, 1301. Extra duty pay: ' Acting hospital stewards, 1448, note. Artificer, 1329. Arti.sans, 1338. Clerks, enlisted men detailed as, 1332, 1338. Commission as auctioneer, 1336. Company, bakery or post exchange funds, 1339. Constant labor for not less than ten days, 1336, 1338. Cooks, 1340. Cuba, Philippine Islands, Hawaii, and Alaska, 1344. Day, length of, 1329. Double compensation, 1329. Enlisted men as reporters, 2172. For work while on leave of absence, 1332. Forfeiture of, 1383. Laborers, 1338. Mechanics, 1338. Men on quarterma.ster duty at West Point, 1335. Messenger and typewriter, 1337. Omission of provision for, from appropriation, 460. One day's service as auctioneer, 1336. Packers, or chief packers, 1331. Prohibited, 1343. (iuartermaster's department, 1342. Keporter of courts-martial, 1345. School teacher, 1333, 1338. Signal service, 1330. Teamsters, 1338. Telegraph operator to private telegrapli com- pany, 1334. Time of peace, 1342. Extra duty pay — Continued. Time of war. 1339, 1341, 1342. Twenty per centum increase of pay, 1343. Extra pay of A'olunteers: Medical storekeeper, appointed inider act of May 20, 1862, 1346. Of certain officers under act of March 3, 1865. 1346. Extradition: Jurisdiction, 1326. Offense, where committed, 1326. Philippine Islands and Cuba, 1328. Requisition — By inferior commander, 1325. By Mexico, how made, 1324. Under treaty— With Great Britain, 1327. With Mexico, 1324, 1325. Failing to retire to camp, etc. : At retreat, 35 A. W. False accusation : By officer, how charged, 125. False alarms, 41 A. W. False certificate, 13, 60 A. W., 110. False claims, 60 A. W.; 107, 108, 122. False muster: Penalty for, 5, 14 A. W. False oath. 60 A. W. False official report, etc. : By officer, how charged, 124, 125. False receipt. 60 A. W.; 110. False representations: By officer, 134. False returns, .s A. W.; 1, 2. False statements: Evidence of embezzlement, 120. Farriers: Indian scouts as, 1510. Federal courts: Witness fees, 2485. Federal office: Included in civil, 1817. Fees: As notary, of War Department clerks, 807. As witness, claim for, 790. For administering oath, 1801. Of deponents, 270, 271. Felony: Desertion not a, 1298. Enlistment of person convicted of, 1258, 1259, 1273, 1695, note. Military offense not a, 1695. Ferry: License for landing of, 1604. Field officers' court, 80, 110 A. W. Files: (See Liin.i of rank or files-) Lo.ss of rank or, 1626-1632. Final payments: On contracts, 963. Final statements: .Uiiena))ility for certifying to, when erroneous, 1348. indp:x. 881 Fiiiul stiitt'iiiciits — Contiiiui'd. . Assif47. Mayhem : In time of war, insurrection, etc., 58 A. W.; 88. Mochaiilrs: Civilian, in military service, contracts, 896,959. Extra-duty pay, 1338. Medal of honor : Application of the law regarding, 1657. Not awardable to contract surgeon, 1656. Personal award necessary, 1655. Medical attendance: General service clerks and messengers, 1968. Of civilian employees, 448, 449. Medical cadets: Service of, 1908. Medical department: {See Acting assistant or Con- tract surgeons and Assistant surgeon.) Hospital steward, transportation expenses, 1966. Promotions in, 2076. Medical ofBcer: As county physician, effect of, 1817. Attendance of physician in lieu of, 1660. Duties of, regarding families of officers and sol- diers, 1661. Effect of law of State on practice of, 1661. Eligibility for court-martial duty, 1659. Malpractice by, 159. Responsibilities of, 1658. Members of Congress: Not to be interested in contracts, 895. Medical storekeeper iu civil war: Extra pay, 1346. Member of court: Absence of — During taking of evidence, 1663, note. To be explained by, 1662. Acting as judge-advocate, 152C. Active officers only eligible, 199, 200. Additional, affecting the validity of proceed- ings, 1663, 1664. As interpreter, 1518. Authority to excuse, 1008. Behavior of, 87 A. W. Civilian, 1038. Dismissal of, during trial, 1666. E^^cuse of, from court, 1007. Expiration of service during trial, 1666. Marine and regular officers together as, 78 A. W. Presence of, at revision of sentence when absent during trial, 1665. Promotion of, during trial, 1666, note. Relative rank of accused with, 79 A. W.;210, 211. Relief of, without challenge, 249, 251. Relieved but remaining on court, 166S. Relieving of, 205. Requisite number not at post, 76 A. \V. Resignation of, during trial, 16()6. Retiring of, during trial, 1666, note. Return of absent, 1662, 1663, 1665. Meml»er of court — Continued. To be accounted for in record, 2136 d. When less than five, 201-204. When less than thirteen, 207. When witness, 1667. Memory: Refreshing of, by witness, 1304. Merit: {See Certificate of merit.) Certificate of, forfeiture of pay for, 1409. Mess fund; Public money not available for, 2082. Messengers: Certificate of merit, 671. Extra-duty pay, 1337. power of department commanders in regard to discharge and salaries. 808. Transportation, subsistence, etc., for, 809. Mexico Boundary Commission: Detail of officer as member, 1832. Mexico: Extradition, 1324, 1325. Mileage: Allowance of, 1945-1948. Appropriations, 444, 445, 447. Contract surgeons, 388, note. Leave of absence terminated by order, 1669. Officer ordered to attend own trial, 1672. On detail as Indian agent, 1075. Reporter of court-martial and assistants, 1676. Retired officer, 2212, 2213. Return delayed by order, 1673. Revival of claim for, 2305. Traveling without troops, 1675. When station changed during leave of absence, 1674. Military Academy: Arrest of civilians by superintendent of, 520. Execution of sentence on cadets, 2325. Pay and allowances of professor, 2066. Pay of cadet under suspension, 2416. Professor of, 1812. Punishment of cadets, 656. Service at, computation of for retirement, 2205. Suspension of cadet, 2416. Military commission: Challenge to members, 1679. Civil offenses not within jurisdiction, 1692. Classes of offenses within jurisdiction of 1680. Composition of, 1678. Constitution of, 1678. Death .sentence, 1679. Detail of members of courts-martial on, 1017. Dishonorable discharge by sentence of, 1165, 1694. Duration of jtirisdiction, 1691. Effect on, of appointment of provisional gover- nor, 1687. Enumeration of offenses triable by, 1682, 1683, 1684. Indians, when and where triable by, 1684, note, 1086. Jurisdiction—, 1680-1692. As concurrent with courts martial, 1688,1089. INDEX. 841 Alilltury coniniUslon — Continued. Jurisdiction — Continued. Over offon.se committed before initiation of military government, 1681. Under reconstruction laws, 1690. Limitation to prosecution, 1679. Oath, 1679. Offen.ses excepted from, where triable by crim- inal courts, 1685, 1686. OfTenses only triable by courts-martial, 1688. Origin of, 167V. Persons triable by, 1680. Procedure of, 1679. Sentence of, 1693, 1694. Spies, trial of, 1689. Statutory juri.'sdiction of, 1688, 1689. Women triable by, 1680, note. Military courts. (See Courts-martial.) Military duty: Not to be imposed as punishment, 2315. Military establishiiieiit: Government of, 2:294. Public property held by, 2286. Military fori-e. (See Army and Appendix B.) Military goveriiiiient. (See Laivg of War, Martial Law, and Jurisdietion.) Customs fund, 480. Military headquarters: Posts of stations, destruction of official papers at, 1844. Military jurlsdlctiou. (See Courts Martial.) Amenability of inmates of National Volunteer Soldiers' Home to, 2344. Military offense: Defined, 1695. Not felony or misdemeanor, 93, 1695. Not territorial, 169. Military prison: Board of government of, 1698. Disposition of articles of prison labor, 1697. Proceeds of prisoners' labor, 1696. Military prisoners. (See Prisoners.) Military record. (See Record of service.) Military reservations. (See Reservations.) Military stores: (See Stores.) Improvement of rivers and harbors, 1496. Accountability for, 10 A. W. Penalty for loss or damage to, 15 A. W. Military storelit'eper : Status, 2077. Promotion of, 2077. Military tribunals. (See Courts-martial.) Militia: (See Volunteers.) Acceptance of, without formal muster in, 1726, 1745. Appointment of officers of, 1734, 1736. Appropriation for arms, etc., for. 1738, 1739, 1741. Arming of, by State, 1748. Arms, etc., issued for u.se of, 1737, 1738, 1741. Assistance given by, to Indian agent, 1728. Authority of President over, 1723, 1724. Calling out of, 1723-1725, 1727, 2450. Court-martial of, 1735. Mllltia— Continued. Courts of inquiry in, 1735. Disposition of unserviceable property issued to, 1740. District of Columbia, arms, etc., for use of, 1739. Drilling of, not in power of President, 1733. Formation and status of, 2449, 24.50. Hawaii, arms, etc., issued for u.se of, 1739. Holding office in, 1816, 1830. Law of State not limiting power of President, 1732. Maintenance of, 1734. Muster in, acceptance of militia equivalent to, 1726, 1745. Muster in of, in Territories, 1743. National Guard, status of in, 1729-1731. Officers of, to compose military courts, 1838. Pay of, 1744. Power to order — Into another State, 1749. Out of the country, 1749. Rank of officers, 124 A. W. Report of State regarding, 1742. Soldier of, refusing to obey order calling out, 1732. Status of, in United States service, 1746. Subject to Articles of War, 64 A. W. Territories, arms, etc., for use of, 1738, 1739. Transcript of history'of, furnished to State, 1747. Trial of officer or soldier after .separation from service, 118. Volunteers distinguished from, 1744, 2450. Mining: On military reservations, 2088. Minors: Age, 1258, note. Alien, enlistment of, 1270, 1271. Alien, naturalization, 1271. Awaiting trial or sentence, application for dis- charge of, 1181. Can not himself avoid contract of enlistment, 1180. Discharge of, on habeas corpus, 1085, 1107, 1180, 1438, 1442. Discharge or trial of, for fraudulent enlistment, 1182. Discharge upon application of parents or guardian, 1180, 1181. Enlistment not void but voidable, 12.58, note, 1264. Emancipated, discharge of, 1189, 1190. Evidence of age of, 1188, 1191. Indian, enlistment of, 1265. Native-born, a citizen of United States, 737. Penalty for enlistment of, 3 A. W. Public interest paramount to right of i)areut, 1094. 1181, 1258, note. Unenianripated, residence of, 043. 2180, 2181. Misappropriation, etc. : Of property — , 60 A. W.; 107-122, 149. Trial for, after separation from service, 117, 118. Mlsbeliavior before tbe enemy, 42 A. W., 56. 842 INDEX. Miscellaneous receipts: (See Scceipti^.) Funds covered into Treasury as, 2102, 2282. Misconduct: At divine service, 52 A. W. Forfeiture of pay for, 1380. To the prejudice, etc., 159. Misdescription in cliarge, 706, 730. Misnomer: (SeeJVawiC.) In charge, 706, 730, 1995. In record, 2144. Mississippi levees: Construction of a public work, 1236. Mississippi River: Improvement of, 2263. Mississippi River Commission: Allotment of funds by, 2270. Disposition of maps prepared by, 2269. Missouri River Commission: Traveling expenses, 2271. Mistalie: (See Error.) By bidder on contract, 869, 871, 872 Discharge given by, 1140, 1141. Mistalcen identity, 1067. Mitigation amounting to substitution, 353. Mitigation of sentences, 112 A. W.; 341-358, 2229, 2235, 2243. Modification of action unishmcnt, 1855. Dissolving courts-martial, 1860. Executive, retired enlisted men can not be discharged by, 2218. For trial, meaning of words, 314. Illegal, 1853. Invalid and inoperative when not properly authenticat<'67-1869, 1870-1873, 1878-1882, 204C. Extent of power, 344. False representations at enlistment, 187.5. Fine, 1869. Fugitive from iustice, 1876. General grounds for remission of unexecuted punishment, 1875. Honorable discharge, 1870. Inconsi.stent duty, 1873. Indian scout, 1875. Investing Secretary of War with power to, 1880. Judge-Advoeate-General, recommendations by, 1875. Military offenders, 1874, 1876. Minor at enlistment, 1875. Misrepresentation at enlistment, etc., 1875 Mitigation, 112 A. W.; 341-358. Not retroactive, 1117, 1879. Officer- Grounds for, 1875, 1876. Promotion under sentence, 1873. Of loss of rank or file, 1628, 1631, 1632. Pay forfeited, 1869, note. Political offender, 1878. Power of, not delegated, 342. Power of unchangeable, 1880. President empowered, 1866, note. Previous good character, 1875. Promotion while under sentence operates as, 1320. Quasi conditional, 1882. Reappointment of dismissed officer, 1883. 16906—01 54 Pardon — Continued. Record of efficiency in service, 1875. Remission, as distinguished from, 1477, 1867, note, 2164. Remission, executed punishment, 1876. Removal of disability of volunteer officers not a, 2167. Restitution of funds or property, 1874. Restoration — Executed forfeitures, 1879. To Army, 1869. To citizenship, 1867, note, 1872. Soldiers.jgrounds for, 1875, 1876. Unexecuted punishment, 1869, note, 1870. Unreasonable confinement prior to promulga- tion of sentence, 1875. Unwarranted or excessive sentence, 2229,2236, 2243. Voluntary return of deserter, 1875. Withdrawal of charge, 1882. Park commissiouer: City of Philadelphia, 1817. Parole: Disposition of prisoner of war on, 2061. Evidence, contract can not be varied by, 933. Status of prisoner of war on, 2064. Violation of, by prisoner of war, 2058, 2859. What duty may be performed by prisoner of war on, 2460. Partner: Execution of contracts by, 966. In a contract, payments to, 942. Pass: Absent on, in line of duty, 1625. Patent: (See Invention and Inventor.) Assignment of, to United States, 1888. Board of ordnance and fortification, 1891. Claim for infringement of, by United States, 772. Clause in contract to protect United States against infringement of, 885, 1890. Compensation for use of, 1887. Conditions governing purchase price, 1885. Deeds, etc., to lands, on file in War Department, copies of, as evidence, 1309. For invention by employee of United States, 845. Government a tort-feasor in permitting the use of an infringed, 1886. Liability of United States for use, 1887, 1889. Proving priority of invention, 1884. Royalty, a legal lien, 1885. Royalty for use by United States, 1884. Use of, 1884, 1886. Use of, with knowledge or consent of patentee, 1884. Pay: (See Pay and alloivances and Stoppage.) Accruing during unauthorized absence, 37.5, 378. Acting assistant commissary, 1910. Acting judge-advocate, 1854. Additional, upon reenlistment, 1911, 1912. Advances, 1927. Aids-de-camp, 398. As distinguished from allowances, 1894. Assignment of, 145-147, 1892, 1893, 1923. 850 INDEX. Pay— Continued. Back, appointment with, 417. Bounty us distinguished from, 603. Can be forfeited by sentence of court-martial, 1896. Certilicate of merit, additional, 671. Certificate of merit, forfeiture of, 1409. Commissioned officer, date of commencement of, 408. Contract surgeon, 385. Deposits with paymasters, 1913. j:xtra, to volunteers, '24.'i'2. Extra duty. (See Exlra-dutij jx^'J-) Fine a.s distinguished from stoppage of, 1370. For extra services, 840-843. Forfeiture of— (See Forfeiture.) By enlisted men, 2401. By sentence of suspen.sion, 2417. For desertion, 1002, 1063. Incident to desertion, 1376. In general, 1062, 1063, 1376-1409, 1869, note, 2401, 2417, 2422. Restoration of, 1869, note. Under suspension, 2422. Indian scout arrested and detained by civil authorities, 517. In hands of third person, attachment of, 1431. Insane officer, 1.517. Legal duration of, 1895. Medical cadets, longevity pay, 1908. Military, garnishment of, unauthorized, 1431, 14&3. Militia, 1744. Jlounted, 1909, 1925, 1926. Officer- Awaiting orders, 1906. Can not be affected by summary dismissal, 1213. Dropped for desertion, 1895. For support of wife, 1517. Reduction of, 1202. Restored to rank, back pay of, 1895, note. Retired, 1823, 1895, 2199. Separated from service, 1895. Suspension of, 101 A. W. Or soldier, in arrest, 18%, 1928, 1969. One year's, retired officer, 2198. Ordnance sergeant as timekeeper, 1865. Prior to appointment, enlistment, or muster-in, 1895. Reduction of, 1905. Remittance by mail, 1972. Remittance without authority, 1972. Restoration of, forfeited, 1869, 1879. Retained—, 1378, 1934-1940. Forfeiture of, 1378, 1934, 1935, 1937. 1938, 1940. Retired enlisted men, 2225. Retired officer—, 1823, 1K95. Service, 2199. Rights of i)ri.soners of war to, 2062, 2063. Rolls as evidence, 1311. Sergeant of the line, 1929. Status of, while in arrest, 509. I'ay — Continued. Stoppage—, 12, 27, 1073, l:«4, note, 1424, 142.5, 1841, 1900,1904,2334. For ab.sence without cau.se, 1841. For reward, as distinguished from piniish- ment,1073. lu favor of tailor, 27. Removal of, 2334. To reimburse post exchange and other funds, 1384, note, 1424, 1425. Suspended officer, 2415. Taxation of, 2425. Time of reenlistment, increased, 21-54, 21.59. To date of discharge, 1895. To guardian, 1900, 1933. Travel- Acting hospital steward, 1447, 1448, note. Forfeiture of. 1378. Upon discliarge for fraudulent enlistment, 1930. Volunteers affecting muster-out, 1762. Voucher, .signing before due, 4. When beginning, 1895. While awaiting sentence, 1896, 1914, 1931. While under arrest by civil authorities, 515-517. Withholding, 1901, 1905. Pay account : A.ssignment of, 145-147, 1892, 1893, 1923. Copies of, as evidence, 1315. Duplication of, 107, 14.5-147, 1893. Liability of a.ssignee, 1892. Not negotiable paper, 1892. Presenting, before publication of sentence, 108. Pay and allowances: (See Pay.) Absence without leave, 1902. After term of enlistment, 1895. Artificial limbs, travel allowance to procure, 1949. Can not be forfeited by dating back discharge, dismissal, etc., 1895. Certificate of merit, 671, 1409, 1932. Change of station, 1920, 1945, 1946, 1948, 1949, 1952, 1953. Commutation — Fuel, 19.56. (Quarters, 1915, 1916, 1941-1944, 1956. Rations, 1957-1960. Creditors decea.sed soldier, 1922. Deposits with paymasters, 1913. Deprived of, by civil process. 1899. Detention of, while under charges, 1895. Dishonorable discharge for fraudulent enlist- ment 1423. Dismissal by President does not deprive of, 1898. Distinction between, 1S94. Due under previous enlistment, 1897. During leaves of absence, 1593. Enlisted man — Commissioned as officer, 1921. Quarters and fuel, 195t5. Forfeiture of, 1381, l:j,83, 1397, 1398, 1403, 1897, 1902, 1934, 1937, 1938, 1940, 1961, 1962. Korfeiture, clothing supplied, 1%1. Fuel to officers, 1917, 1918. INDEX. 851 Pay and allowances — Continued. Fuel and light, material for, 194-1. General-service clerks, 1939, 1960, 1964, 1965, 1968. General-service messengers, 1939, 1960, 1964, 1965, 1968. Hospital steward, transportation, 1966. Hovi' deprived of, 1896. How paid, 1923. Indian scout, 1939. Interment of deceased officers, 1954, 1955. Medical treatment and attendance, when not an allowance, 1968. Mounted, 1909, 1925, 1926. Officer.? — Awaiting retirement, 1952. Detailed as college professors, 1915. Engaged upon civil works, 1916. Family of, fuel allowance, 1918. Transportation — Of baggage, 1948, 1950, 1951. Officers' horses, 1952, 1953. Soldier acquitted by U. S. court, 1967. To place of enlistment,1919. Travel allowance, 1919-1921, 1945-1951, 1963- 1967. Upon summary discharge, 1423. Veterinarians, 1920. While in arrest, 1969. Paymaster: Appointment from civil life, 433. Assignment of pay, 1923. Double payment of pay account, 1892, note. Payment by check, 1924. Payment of troops, 1924. Paymaster's clerk: Civilian, no part of army, 1970. Liability to military jurisdiction, 1970. Paymaster, retired, not entitled to, 1971. Status of, in navy, 1970, note. Payments: By mail, 1972. Money lost in transitu, 1972. On false vouchers, 1123, 1124. On forged voucher, accountability, 381, 1410. Responsibility of person remitting, 1972. To members of firm of contractors, 942. To officers, 1923. To troops, 1924. Without authority, 1972. Peace, time of: Dismissal, 99 A. VV.,106 A. W.; 336,337. Extra-duty pay, 1342. Reenlistment,2166. Penalty envelope: Use of, by — College authorities, 1975. Disbursing officer, 1980. Ex-officers, 1977. Public creditor, 1980. Public officer, 1974-1976, 1980. Retired enlisted men, 1981. State adjutants-general, 1978. State militia, 1979. Penalty envelope — Continued. For return information, 1975-1977, 1979,1980. On matters pertaining to the muster-in of vol- unteers, 1978. Statement on, 1973. Penitentiary: (See Confinement.) Change of confinement to, 1469. Confinement in—, 97 A. W. ; 288-300. For larceny, 291. For purely military offenses, 288-290, 296. Lex loci, 97 A. W. ; 297, 298. Mitigation of, 299, 300. Not sentenced to, 295. Term of, 294. Delivery of prisoners to, 1471. Designation of, 14-59, 2240. Enlistment upon remission of sentence to, 1274. Erroneously designated in sentence, 352, note. Meaning of term, 292. Mitigation of sentence, 345. Sentence to, involves dishonorable discharge, 1164. Status of military prisoner in, 293, 300. United States, status of, 1470. Pensioners: Taxation of, 2429. When disabled while — On furlough, 1620-1623. Serving or awaiting sentence, 1617, 1624. Perjury: (SeeOaM.) Attempting subornation of, how charged, 125. By recruit, as to age, 1987. Evidence to sustain, 1982. False swearing—, 1985, 1986. Defined, 1986. Material testimony, 1983. Remitting sentence when evidence of, not suf- ficient, 1984. Permanent appropriations, 437, 464, 894. Use of unexpended balance of, 894. Permits : (See License. ) To construct docks, etc., authority under, 1785. Person and property: Reparation for injury to, 54 A. W.; 78-86. Personal services: Contracts for, 860. Persons servins with armies in Held: Forfeitures against, 162. How punishable, 161, 162. In Indian wars, trial of, 164. Instances of, 162-164. Jurisdiction over — After war, 166. In time of peace, 165. In Indian wars, 164. Subject to order.i, etc., 63 A. W. Philadelpliia: Park C! )mmissioner, 1817. Philippine Islands: Extradition, 1328. War service in, retirement, 2223. Photographs of fortifications: Contrarv to law of war, 1578. 852 INDEX. I>li.v>l<-iil 0. Ehlistetl man to officer, 2073, 2074. Examinations for — Xmnber allowed, 429. of inlisted men, 421-423. Of officers, 1318-1320. General rule in rjCgard to, 2068. INDEX. 855 Promotion — Continued. In Quartermaster Department, 2077. Issue of new commission, 2071. Military storekeeper, 2077. No vested right in, 2071. Of assistant surgeons, 52.5. Of otRcer — Under or awaiting sentence, 1S73. While member of court, 1666. Of successor, a reduction to ranks, 2152. Regimental, 2068. Remedy for oflBcer overlooked in, 2067. Substitution of lineal for regimental, 2072. While under sentence of suspension, 1320. Promulgation of action of reviewing- authority, 2235-2237, 2241-2244. Property: (See Public property.) Accountability—, 10, 15 A. W., 3S0-3,S3. As bailee, .382. Damage and deficiency to, 1839, 1901. Deficient or damaged stores, after separation from service, 383. Distinguished from amenability to trial, 380. Payment on forged voucher, 3S1, 1410. When not to be enforced, 380. Borrowed, larceny of, 1.564. Captured, 9 A. W.: 3, 659-666. Authority to dispose of, 3. Claim for lo.ss of private, contract surgeon, 387. Condemnation of, 1862. Damaged by guns of United States war ship, claim for, 780, 1582. Damages or deficiencies, 1839, 1901. Deficient or damaged, accountability for, after separation from service, 383. Destroyed by Army, claim for, 770, 771, 776. Disposition of, by C'ongress, 665, 666. Embezzlement of—, 60 A. W.; 114, 115, 119, 120. False statements, evidence of, 120. How charged, 111, 119. Felony by civil statute, 121. Impressed, 661. In Porto Rico, right to, under treaty, 1.583. Inspection of, 1862. Larceny of, furnished or intended for the mili- tary service, 60 A. W.; 113. License of, under military government, 1584. Misappropriation of — , 60 A. W.; 112, 116. Trial for, afterseparation from service, 117, 116. Of officers, stolen from United States storehouse, claim for, 793. Of War Department, care of, 2297. Personal — Appropriated by soldier, claim for, 770. Exemption from attachment of, 738, 739. Of deserter, not subject to forfeiture, 1064. Taxation of, 2425. Private — Claim for occupation of, 770, 781. Not subject to forfeiture, 1396. Profit of user, 116. Purchase of, from appropriation, 443. Remedy for acts of soldiers against, 747. Respon.sibility of United States for acts of soldiers against, 747. Property— Continued. Private— Continued. Taken for public u.se, 774, 776, 781, 1868. Private use of— How charged, 115. Not embezzlement, 115. Public, sale of, 2277-2286. Purchased from appropriation, transfer of, 4.58. Real- Alienation of, in conquered country, 1579. Title to, during military occupation, 1.579. Real and personal, proceeds of sale, 2083. Recaptured, 662. Receiving in pledge, etc., 60 A. W. Reparation for injury to person and, 54 A. W.; 78-86. Restitution of, before pardon, 1874. Returns. 10 A. W. Returns of ordnance stores, 1861. Taken for public use, compensation for, 844. Transfer of. 2297. Waste, etc., of, penalty, 55 A. W. Proposals: (See Contract.) Acceptance of — Does not bind the United States, 879. Does not constitute a contract, 879, 880. As to requirement of guarantors, 873, 877. Certified check in lieu of guaranty, 878. Guaranties to accompany, 877. Letters containing, 866, 879, note, 881. Rejection of, 855. Release of guarantors, 876. Secretary of War not authorized to release guar- antors, 87f). Prosecution : Instance of no impediment to, 315. Limitation of — How availed of, 320. Time, 103 A. W., 314-322. Waiver, 320. Prosecutor: As witness, 2078. Judge- Advocate only recognized official, 2078. Protecting tlie enemy, 45 A. W. Protest: By minority of court-martial, 2079. Provisions, etc. : Violence to persons bringing in, 56 A. W. Provocation not a defense, 1050, 1051. Provoking speeches, etc., 25 A. W.; 34. Provost-marshal: Refusal to receive prisoners by, 67 A. W. Public auction: (See Auctioneer and Sales.) Sale of condemned stores at, 2285. Public buildings: (See Buildings.) Charge of, 2117. Public criticism: To the prejudice, etc., 159. Public enemy: Testimony of, 1297. Public funds: [See Funds.) Embezzlement of—, 60 A. W.; Ill, 114, 119. False statement, evidence of, 120. How charged. 111, 119. 85^ INDEX. Tulillr funds — Collliiiui'd. Embezzlement of — Contimiert. Trial for. iiftersepii ration from service. 117, U.S. False .statement.'* eoneerninK, 120. Garnishment of, 1431-1434. Larceny of, 00 A. W.; 113. Mi.snjiproiiriation of — , (iU A. \V.: lUl. How charged, 111, 119. Proceeds of .sale of articles manufactured V)y prisoners, 495. Refusing to transfer or disburse, 114. Puliliv liiiuls: (.See Land.) Right of way, 22.59-2268. Surrender of, 2303. Title to. dispute of, 2303. Transfer. 2089. Pulillf money: (See Fuiidg. ilonaj, and Public fiiiKh.) Amercements for damages, accounting for, 2081. Band f\nid not, 2083. Company fund not, 2083. Deposit and keeping of. 2080. Disbursing officer, disposition by, 2084. Disposition of. 20S0, 20S1. Embezzlement in fiiiling to account for, 2081, 2083. Expenditure, 2080, 2105. Funds — ■ Classed as, 2083. Received at military posts, etc., 2083. Lease of public property, disposition of pro- ceeds, 2084. Liability for not accounting for, 2081, 2083. Not available for imrposes of mess fund, 2082. Not to be retained as slush fund, 2083. Paid into Treasury as miscellaneous receipts, 2083. Payment into Treasury, 2080. Rations, sale of .savings, 2083. Received at military posts, etc., use of, 2083. Restitution of, before pardon, 1874. Sales of savings from rations, 2083. Sale of TTnitcd States property, disposition of proceeds. 2083. Use and appropriation, 20^3. Public offlce, (See Civil qflirr and Office.) Public papers: (See Officiiit papers.) Withholding of. 230t;. Public prlntliii;: Construction of act relating to, 2085. Necessary imblications, construction of, 2085. PuliIIc property: (See Proixrty.) Alienation of lands of Tnited States, 2113. Appropriation of land by State for right of way, 2110. Books ff)r jiost library, 2283. Boring for gas (m military reservation, 2089. Buildings erecte-2107. Reservation, military, claim to title, 2111. Reversion of title in at)and(mc^i lands, 2116. Right of way over, 2087-2089. Sales- Disposition of proceeds, 2102. Of perishable, 2090. To States for use of militia, 2104. Salvage of, 2291. Stoppage for damage to. 2377. Surplus documents, 2094. Tactics, cavalry, i)ublication rights, sale, 2090, Telegraph lines of Porto Rico, 2090. Temporary buildings on United States land, 2098. Title to purchased lands. 2114. INDEX. 857 Public property — Continued. Transfer of — Between bureaus or departments, 2091. United States land, 2088. Unauthorized occupation Vjy post commander, 2100. Unserviceable — Inspection of, 2281, 2285. Sale and exchange of, 2103. Vesting of title in lands by statute, 2112. Water power, use of, 2088. Public servants: Arrest of, by civil authorities while on duty, 518, note. Publication : Of officers for cowardice or fraud, 100 A. W. ; 301, 302. Revised Statutes, 2246, 2247. Publication of Articles of War, 128 A. W. Punishment: (See Maximum, punishment.) Abridgment of, by good conduct, 1482-1484. Adding to—, 14(54, 1468-1470, 1473, 1476, 2230. By reviewing authority, 2230. Arbitrary, 1195. Bad treatment as affecting the quantum of, 2000. Commutation of, 347, 348. Constructive pardon, 1873. Corporal, 1869. Cumulative, 1479-1481, 2317. Determination by courts-martial, 2308, 2309. Disciplinary, 1855. Dishonorable discharge given as a, 1167. Disqualification to hold office, 1225. E.xcessive, 2318, 2324. Fine imposable only as a, 1369. For contempt of court, 86 A. W.; 230-233. For obstructing navigation, 1774, 177.5. For offenses on reservations, 693. Illegal, mitigation of, 352. In time of war, etc.—, 58 A. W.; 90,91,93. In foreign country, 92. Legality of, 2322. Limitation of, 2318, 2402. Loss of rank or files, 1626-1632. Maximum — ,1647-1654. (See Maximum, punish- ment. ) Effect on power of reviewing authority, 357. Measure of, previous convictions as aid to de- termining, 2054. Kot affected by dishonorable discharge, 1485. Of cadets, 654, 656. Of soldiers in arrest, 175. Pardon and mitigation of, 112 A. W. ; 341, 358, 1272, 1273, 1477, 1.516, 1879, 2040, 2164, 2294, 2321. Prohibited, 98 A. W.; 2314. Reviewing officernot authorized to change tlie kind of, 357. Stoppage as, 2377. Sub.stitutions of, 1648, 16.52-1654. Unjastifiable — , 1192-1194. Amenability to trial for, 1192, 1193. U.se of irons on prisoners, 1465, 1466. Violent, 1192-1194. Purcliases: Illegal, of arms, etc., .sold by soldiers, 2273, 2275. Land for United States, 2105-2108. Open market — , 859, 862, 864, 865. Reports of, 8-59. Patents, 1885, 1891. (Quartermaster's Department: Civilian employee as auctioneer, 2284. Extra-duty pay, 1342. Military storekeepers, 2077. Promotions in, 2077. Salvage of supplies, 2291. (Quartermasters' and Subsistence (h'pitrtmeuts: Supplies for, 850. ({uartermaster-sere:eant, post, 201S, 2019. (Quartermasters : Employee of, holding civil office, 1821. On United States transports, summons served on, 700. (Quartermaster stores: Claim for, under act of July 4, 1864, 777. Salvage of, 2291. (Quartermaster supplies: Sales to civilians, 2392. (Quarrels, etc.: Who may quell, 24 A. W. (Quarters: Allowance for, not affected by suspension, 2418. Allowance of, 1941-1943, 19.56. At Soldiers' Home, 2332. Commutation of, 389, 2332. Confinement to, of officers, 65 A. W. Contracts for, 888. Effect of suspension on selection of, 2412. Lying out of, 31 A. W. Unauthorized absence from, 374. (Quitting' guard, etc. : Without leave, 40 A. W. Railroad Company: Claim of officer for lost baggage, 787. Encroachments by, 2121. Franchise — Affected by consolidation, 2120. Transfer of, 2120. Injunction against, 1561. License to, 1609, 1612. Obstructing navigation, 1776, 1778. On right of way to national cemetery, 2121. Power of receiver, 2119. Right of way for road, 1700. Unrestricted authority to construct road, in- cludes authority to bridge navigable streams en route, 625. Use of revetment by, 1791. Ranl£: Acceptance of commission, 2126. Aids-de-camp, 396, 397. As affected — By consolidation, 2128. By transfer, 2127. As fixed by service, 2125, 2126, 2129. Assignment to duty according to brevet, 611, 612. 858 INDEX. Rank — Continued. Buck, appointment with, 417. Brevet- Incident to full milk, fiOS. Officer a.s.signed according to, not eutitled to aids-de-camp, (>12. Not entitled to precedence according to, fi09. Change of date of, 2128, 2130. Confirmation of brevet appointment, (ilO. Fixed by appointment, 2122, note. Loss of, 1620-1032. Militia officer with regular and volunteer, 124 A. W. Naval service in determining, 2125. Of officers of immune regiments, 2131. Officer restored to, pay of, 1895, note. Reduction of, effect upon forfeitures, 1388. Regular and volunteer, 2123, 2124. Relative—, 408, 409. Fixing of, 2124-2130. Of assistant surgeons, 526. Of officers trying and tried, 79 A. W.; 210,211. Restoration of officer to, 1841, 1871. Service as volunteer, effect of, 2123, 2124. Supernumerary officer, recommis-sioning, 2128. Volunteers and regulars, 123 A. W. Volunteers in Army, 2440. Rape : Death sentence, confirmation of, 105 A. W. In time of war, insurrection, etc., .58 A. W.; 88. Rations: Commutation of, 1070, 1957-1960, 1962. For clerks, 810. Real estate: (See Lease and Sent.) Rent of, 1868. Rebellion, Insurrection, etc. : Crimes during, 58 A. W.; 87-93. Recess appointments, 429. Receipt: False, 60 A. W.; 110. Miscellaneous, moneys to be covered into Treas- ury as, 2102, 2282. Receiver: On contracts, 906. Recess of court as noted In record, 2130'/. Rerommendation : Accused to clemency, 2132. Application for withdrawal, 2133. Grounds for making, 2134, note. Joining, di.scretionary with member, 2134. .ludge-Advocate-General, 1875, 1876. Members subscribing. 2134. Separate, by members, 2135. Withdrawal of, 2133. ReconTenlni.-' of court for revision, 224 revoked, 21('>(). Pardon, 21W. Reeommcnded liy ,Iiid},-e- Advocate-General, 1875. Relief from i)iniishment, 2104. Revocation of order of, 21l>6. Sentence of insane soldier, 1516. Remote military posts or stations: Arrest of (ilViccrs at, 71 A. W.; 181. Kemoval of charifc of desertion, 1103, 1117, 1122. Kenioval of (lisablllt). 1867, 1872, 1879, 1881, 2167: Effect of, 2167. Nature of, 2167. Not a parilon, 2167. Volnnte(.'r otlicers. 2167. Kenioval of trespassers, etc. : From Indian country or reservation, 4S7. Beiit: {Sue Lease.) Acceptance of, as waiver of forfeittire for assign- ment of, 1.585. Buildings, taken for public use, 1874. Claimed by two parties, 1588. Payment of, when land in litigation, 1588. Real estate, 1868. Termination of lease by nonpayment of, 1.586. Ueparutlon for Injury to person and property, 54 A.W.; 78-86. Reporter : Appointment of, 2168. Board of officers, payment of, 2173. Claim for services as, by member of court-mar- tial, 799. Comi)ensation of, 2170, 2173. Enlisted men as, 2172. For court-martial, 1543. Finding or sentence disclo.sed to, 798. Of courts-martial, extra-duty pay, 1345. Oath of, 2169. Stenographic, 2170. Report : False official, by officer, how charged, 124. Of examining board, retirement on, 2207,2208. Of prisoners, 68 A. W. Of purchases of supplies for imiirovementa of rivers and harbors, 1495. Official, copies of confidential, 2298. Public criticism of, conduct prejudicial, etc., 150. Keprlmand: Execution of, 2174. Form of administering, 2174. Sentence of, 2174, 2175. Severity of, 2175. Reprout-iiful speeehes, ete., 25 A. \V.: 34. Requisition: (iovernor of State for military prisoner, 2176. Reservations: Abandoned—, 692. Disposal of, 1614. Arrest, civilians, 103. Reservations — Continued. Authority— Of. post commander to exclude persons from, 2004. To establish, ](;99, note. Boring for gas on, 2089. Burial grounds on. 208.H. Ceding back of jurisdiction, 692. Cession of jurisdiction, 672-693, 1699, 1721. (See Cexxion of jitrisilirtion.) Civil authority- Arrest by—, 59 A. W.; 94-106. In time of war, 105. Offenses, 96. Offenders, surrender of, to, 59 A. W.; 94-106. Pri.soner, surrender of, to, 98. Civilians residing on. arrest of, 103. Claim to title. 2111. Coroner's rights, 689. Cutting grass on, 1715. Cutting timber on, 1702, 1708, 1715. Disposition of abandoned, 1707, 1708, 1710. Distinguished from public lands. 1700, 1709. Erection of — Buildings on, by post trader, 2028. Telegraph lines on, 2089. Error in location of, 1722. Establishment of—, 2294. Branches of Soldiers' Home on, 2338. Ferry within limits, 2089. Extending limits, 1856. Fish nets, etc., removal of. by United States, 1711, 1712, 1781. Funds received at, character of, 2083. In Territory, civil suit or process, 741. Indian, 1498. (See Indian Country.) Irrigation laws, 690. Jurisdiction, 97, 102, 103. Concurrent, 98. Exclusive, 97. Over shore below high water mark, 17U '1712, 1773. Hot Springs hospital, 14-56. Larceny of hay on, 1563. Licenses, 1599-1616. Liquors- Introduction of, on Indian, 1.500, 1501. Sale of, to Indian .soldier, 1509. Military, on Indian reservation, 1701. Mining on, 2088. Money for u.se of, accounting for, 2082. Offenses on, 673. 693. Operation of Territorial stattites, 2439. Power of President over, 170(;, 1707, 1710. Prohibition laws of State alTectiiig. 1719. Public road over, 1720. Removal of trespassers, etc., from Indian. 487. Removal of trespassers on, 170-4, 1713-1715, 1717. Report of births and deaths required by State, 691. Right of way—, 687, 2088, 2110, 2264,2265. (See liiijlit o/ Way.) Appropriation of land for, 2110. INDEX. 861 ReserTatloiis— Continued . Right to prospect for mines on, 1703. Sales of, 2360. Sale of intoxicants on, 2287-2290. Service of process on, 1699. Tax by Territory on beer sold on, 2430. Tax exemption, 677. Title to land, 2303. Traffic by civilians on, 171S. Trespassers on, 1700, 1704, 1713-1715, 1717. Vesting of title in lands by statute, 2112. Warrants, 97, 102. Witness, subpoena, 104. Residence : Absence in Army, 2179. Army officers, 2177,2178,2180-2182. Chiefs of staff corps, 2177. Military persons, 2427. Minor son of army officer, 2180, 2181. Must be actual, 2178. Officers, army, 2177,2178,2180-2182. ■Right to vote, 2182. Taxation of enlisted men, 2179. Taxation of officers, 2179. Temporary absence of commissioned officers, 2179. Temporary absence of enlisted men in Army, 2179. Unemaneipated minor, 643. Resignation: Acceptance of—, 1851,1895,2187-2191. Actual, 2187. As an honorable discharge, 2191. Constructive, 2187, 2188. Effect of unqualified, 2191. For good of service, 2191. Notice of, 2184, 2186-2188. Not retroactive, 1851. Tacit, 2190. Application for, by clerk of War Department after discharge, 805. Authority, competent to accept, 2187, 2189. Effect of diplomatic or consular service, 1825. Of member of court during trial, 1666. Officers' right to tender, 2183. Revocation of, 2185, 2186, 2188. Tender of—, 2183, 2185-2186. By insane officer, 2186. When considered as a desertion, 49 A. W. Withdrawal of, 2185. Resistance: Habeas corpus proceedings, 1441. Restitution: Public money, 1874. Restoration : Forfeited pay and allowances, 1869, 1879. Of deserter to duty without trial, 1060, 1090, 1103, 1123. Of dismissed officer, 1199, 1200, 1202, 1214-1216. To duty as plea in bar of trial, 1997. To duty without trial of deserter, 70-72. Retained pay : Forfeiture of, 1378, 2333. Retained pay — Continued. Forfeited by dishonorable discharge, 1168. Of deserters, appropriated for support of Na- tional Soldiers' Home, 2332. Retainers to ramp, 63 A. W., 161. Retired enlisted men : Commutation, 2220. Discharge by — Executive order, 2218. Sentence of court-martial, 2218. Employment, 2219, 2220. Holding office, 1820, 2220. Pay, 2225. Penalty envelope, 1971. Subsistence, 2226. Trial by court-martial, 2218. Retired list: Restored officers placed on, 2370-2372. Retired officer: {Qea Retirement.) Appointment of — As volunteer officer, 2211. To office by President, 2210, 2211. Burial expenses of, 2114. College detail, 2211, note 2, p. 232. Commutation of quarters, 1942. Contracts, 957. Diplomatic or consular service, 1825,1826. Guardian for, 1900. Holding office, 1813, 1823, 2202, 2210, 2211. In Territory, 1824. Jury duty, 2201. Mileage, 2212, 2213. Military standing of, 1823. Office, 2209-2211. On duty at Soldiers' Home, 2211. Ordered to remain within jurisdiction of civil court, 2215. Pay of, 1895, 1933, 2199. Salary exempt from taxation, 2426. Status of, 2209,2295. Stoppage, 2382. Trial of, 2200. Witness, 444. Retirement: (See Retired officer.) Appointment with a view to, 416. Approval by President, 2194, 2196, 2206. Approval by Secretary of War of report of ex- amining board, 2207. Cadet service, 2205. Change of station allowances, 2198. Disability, 2192, 2195-2196, 2203, 2204, 2207, 2208. Discharge, 2218. Drunkenness, 2196. Effect of, on promotion, 2075. Enlisted men — , 2216-2226. (See Retired enlisted men. ) Forage masters, 2216. Furlough, 2223, 2224. Pay, 2225. Service under fraudulent enlistment, 2221. Thirty years' service, 2221-2224. Wagon masters, 2216. 862 INDEX. H(>tlr«-iiifiit — Continuoil. Enlisted men— Continued. AVar-scrvice — Furlough, 2'223. In Cuba, 2223. In Murine Corps, 2222. In the Philippines, 2223. In Porto Rico, 2223. Finding of retiring board, 2206. Forty years' servieo, 2205. Hearing, 2197. Jurisdiction < f retiring hoards, 2103. Mileage, 2212, 2213. Military Academy service, 2205. Moral obliquity not cause for. 2203. One year's jiay, 219S. Report of examining board, 2207, '2208. Thirty years' service, 2'205. War service, 2217, 2222, '2223. While member of court, liitid. Itetlrlni; hoards: Approval by President, 219-t, 2196, 2206. Causes of incapacity, 219.5, 2196, 2203, •>'204, 220S. Evidence, 2197. Existing incapacity of officer, 2204. Finding of, 2194, 2195, 2'206. Hearing, 2197. Jurisdiction of, 2103. Limitation of, as to time, 2193. Right of officer before, 2197. Ketreat : Failing to retire to camp, etc., at, 35 A. W. Returns: False, S A. W.; 1, 2. Ordnance .stores, etc., 1861. Regimental, etc., 7 A. W. To writs of habeas corpus, 143x, note, 1440-1443. Uevciiuo marine: .\ilniission of ofVicers of, to Hot .Springs Hos- pital, 14.55. Kevleuing authority: (See Courts-martial.) Acquittal, '2245. Action of — Authentication of, 2'233. In record, 2136/i. Modification of, 2235, 2236. Notice of, 2244. Promulgation of, 2236-'22.37, 2241-2244. Recall of, 2'235, 2236. Reconsideration of, by, ■2'241. Revocation of, 2243. Amemiment of record, 2'254. Api.roval by, 2227-2229, '2236, '2237, 2239-2244. Authority to correct record, 2'230, 2256. Commutation of .sentence by, '2'229, '2235, 2243. Correction of record on revi.sion, 2249-'2'252,2'264- 2258. Death sentence, 2'2'27. Delegation of authority by, 2'234. Disapproval by—, •22'27,'2'2'29, 2-230, 2'234-2236, '2238, 2'245. Kxprcs-s, '2'2'29. Of acquittal, 1062. Iti-vlenliii; autlinrlty — C'f)n tinned. Disapproval by — Continued. of conviction, 1062, 1065, 1074. Of sentences, 14.58. Dissolution of court, revision. •2'2.57. Evidence, conflicting, '2'232. Findings- Approval of, 22'28. Change of, by, '2239. Meaning of term, ■2'2'27. Mitigation of sentence, ■22'29, •2'235, 2243. Not authorized to change the kind of punish- ment, 357. Notice of action, 2'2'24. Orders, 2236, '2237, •^241-2244. Order reas.sembling court, '2'2.50. Pardon, '2'2'29, '2'235, '2'243. Penitentiary, designation of, by, 2-240. Presence of accused at revision, 2252. President, approval of death sentence by. ■2'2'27. Proceed ing.s — Amendment of, 2'242, note. Fatal defect in, '2242. Punishment — Adding to, by, •2'230. Recommended by, to court.s-martial, 995. Reconvening of court for revision, 2'249-'2'251, 2254-2257. {Sec Itevision.) Remission of sentence by, 2'229, '2'235, •2'243. Sentence in excess of limit, 2'237. Revision: (See Amendment and Record.) Amen'.H), ..'.Xi, .598. Brevet rank, 611. Cadet, (;43, 646. (>4S-6.53, 6.55. Certificate of merit, 667-<;69, 671. Cession of jurisdiction. 672, 674. 6.sl-<^i, 6h;5. l>86, 693. INDEX. 863 RcTised Statutes — Continued. Charge, 714, 726. Chief musician, 734, 735. Citizenship, 736. Claim, 766, 767, 775, 777, 782, 789. Clothing allowances, 828. College, etc., 829, 836. Commissary sergeant, 83S. Counsel, 972-974, 976, 980. Court-martial, 1020, 1033, 1034. Contract, 846-849, 853, 860-865, 869, 879-882, 884, 886-890, 892, 894, 895, 897, 899-901, 903, 904, 906, 945, 951, 955, 967, 968. Date of operation, 2246. Deposits, 1052. Desertion, 1061, 1092. Disbursing officers, accountability of, 1125-1127, 1129. Discharge, 1132, 1168, 1177. Dismissal, 1200-1203, 1218, 1222, 1223. Eight-hour law, 1235, 1241, 1243. Embezzlement, 154, note, 155, 156. Employment of Army for civil purposes, 487- 490, 492. Engineer Corps or officer, 1250. Evidence, 1298, 1309, 1310, 1312. Evidence of laws, 2246 and note. Examinations, 1319. Extra-duty pay, 1329, 1332-1334. Fine, 1373. Forfeiture, 1378,1384, note, 1397. Fraudulent enlistment, 1423. Imprisonment or confinement, 1467, 1485. Improvement of rivers and harbors, 1491, 1492, 1496. Indian country, 149.8-1500, 1502-1507. Indian soldier or scout, 1508. Insanity, 1517. Interest on deposits of soldiers, 1052. Line of duty, 1621, 1624. Military commission, 1686, note, 1693. Military prison, 1696-1698. Military reservation, 1703, 1713, 1715, 1720. Militia, 1723, 1729, 1732, 1735, 1737, 1749. Muster-out, 1755. National cemetery, 1763, 1764, 1766-1771. Naturalization, 402, 403, 421. Oath, 1799, 1802, 1804, 1805, 1807-1810. Office, 1814-1819, 1823-1836. Officer, 1838, 1839. Officer defined, 366. Official papers, 1845, 1846. Operation of, 2246. Ordnance Department, 1861, 1862, 1865. Pardon, 1867. Pay and allowances, 1894, 1901, 1907, 1909-1913, 1915, 1919, 1923, 1925, 1927, 1940, 1963. Paymaster's clerk, 1970, 1971. Penalty envelope, 1975. Perjury, 1987. Provisions of a local and temporary character, effect of, 2248. Publication, 2246, 2247. Revised Statutes — Continued. Refusing to transfer or disburse funds, 114. Retirement, 2192, 2194-2200, 2203-2205, 2207, 2209, 2211,2216. Right of eminent domain, 1246. Revocable license: (See License.) In lieu of right of way, 2268. Use of public lands, 2268,2307. Revocation : Of action of reviewing authority, 2243 Of approval, 1202. Reward: Forarrestof denerter, 1071-1091. (See Desertion.) Rhode Island: Sons of veterans, United States of America, 1834. Rights of title and occupation : Affected by improvement to navigation, 1773, 1779. Rlglit of way: (See Reservation.) Acceptance of grant, 2259. Acquirement of, 2262, 2307. Across military lands, authority for, 2268. Across public lands for irrigating ditches, 2264, 2265. Affecting cession of jurisdiction, 687. Application for, papers to accompany, 2263. Appropriation by State of land for, 2110. Approval and reapproval by Secretary of War, 2263. Approval by Secretary of the Interior, 2263. Cession to United States, 2266. Condemnation of lands, 2262. Conditions for granting, 2265. Confirmation of, 2263. Conveyance by municipalities, 2266, 2267. Decisions in reference to, 2260-2268. Exceptions and limitations of, 2261. Expenditure of appropriation, 2267. For irrigating ditches 2264, 2265. For railroad company, 1700. Granting of, 2259-226S. Joint use of, 2262. License without, 1609. Material for construction, 2263. Northern Pacific Railroad Company, 2261. Over military reservations, 2088, 2260, 2265. Public property, 2087-2089. Requirements to be observed, 2262. Reservation of land on, 2261. Revocable license in lieu of, 2268. Selection of route for, 2260. Through — Indian lands, 1700. Public lands, 1700. Reservation, 1700. Water-reserve lands, Title to land for, 2260. To national cemetery. Use of water on, 2264, note. Vesting of, in United States, 2266. Water flowage, rights of, 2263. Riparian rights, over beds and shores of naviga- ble waters, 1711, 1712, 1773. 2263. 2266. 8fi4 INDEX. Hhtr mill luirliiir uorks: Aggri'pitioii (if, several in one oontriict, 890. Contnict.s nnd purchases, 2301. Member of river commission, 1827. Prosecution of, 2307. Right of way, 2202. Rlrcr rommlssloiis: Allowance for traveling expenses, 2271. Disbursement or allotment of moneys, 2270. Duties of, 2272. Functions and province of, 2270. Maps, prepared by, disposition of, 2269. Not subject to direction of Secretary of War, 2272. Rivers: (Sec yavigable tvaters.) Navigability of, 1777. Navigable- Conservation of, 613. Property in soil underlying, 613, 1488, note. When navigable waters — Of a State only, G14. Of the T'nited States, 614. Koiidnays, ])ulilio: Expenditure of appropriations on, 467, 469, 472, 475. Kobbery : Death sentence, confirmation of, 105 A. W. In time of war, rebellion, etc., 58 A. W., 88. Kock Island, 111. : Use of bridge at, 628. Kock Island Tiaduct: Cession of jurisdiction, 682. Kuh's, etc. : For use and navigations of canals, etc., 1493. RdIpk of evidence In trials by courts-martial, 1285, 1286. Rules of Mar lK'|iartinent : ,\s to construction of bridges, 622, note. Kunkle's case, 337, note. Kafeiruard: Forcing, 57 A. W. Kales: Disposal of proceeds, 2083, 2102.' Material for fuel and light, 1944. Of arms, etc., by soldiers- Evidence of illegal sale, 2275. Illegal purchase of, 2273-2275. Illegal jiurchaser, proceeding against, 2274. Laws existing in regard to, 2273, note. Of clothing after discharge, 2276. Prohibition of, 2273-2275. Punishment of illegal purchaser, 2273. Right, title, etc., to arms, etc., illegally .sold, 2275. Seizure of arms illegally ilisposed of, 2278, 2275. Soldier's title to clothing issued him, 2276. Of cr)ndemned stores — Anny officer, license for, 2278. Auctioneer, noncommissioned otlicer as, 2284. Authority for, 2277. f'ompen.sation of auctioneer, 2284. Credit wile, legality of, 2277. Sales— Con ti n ued . Of condemned stores — Continued. Executive Dejiartments, old material, con- demned stores, etc., 2282. Inspections jireliminary to, 2281, 2284, 2285. National cemeteries, unserviceable property, 2281. Post library books, disposition of proceeds, 2283. Proceeds of, to be covered into Treasury, 2282. Public property, in custody of military estab- lishment, 2286. Unsuitable stores, definition, 2279, note. Of intoxicants — At military posts, regulation of, 2287-2290. Detail of officer or soldier to make, 2290. In Indian country, 1500,1.506,2287. In local option counties, 2287. On Indian re.servations, 2287. Opium, 2289. Prohibition States or Territories, 2288. To commissioned officers or civilians, 2288. To enlisted men, 2287. Tolndians, 1500, 1506. To Indian soldier, 1508, 1509. Public property, to States, 2104. Perishable property, 2090. Unserviceable property, 2103. Salvage: On property — Captured or recovered, 662, 2292, 2293. Taken possession of during time of war, 2293. Used by Government during time of war, 2292, 2-293. Public, 2291. On quartermaster and commissary supplies, 2291. San Francisco: Hoard of supervisors of, 1829. School, lliirli: {i^ee High school.) Arms issuecl for use of, 836, note. Scluxd Teachers: Extra-duty pay, 1333, 1338. Scouts: (See Indian scouts.) Indian, pay during arrest and detention by civil authorities. 517. Seals to bonds, .544,547, .561. Secondary evidence, 1314. Second trial: For same diTcnse. (.See Jeopardy.) Secretary of Interior: .\pproval of right of way by, 2263. Secretary of Treasury: Deposit and keeping of jiublic money, 2080. Secretary of War: Accounts of National Volunteer Soldiers' Home, 2341-2343. .\lienation of United States land, 2113. Allotment of public funds to storm .sufferers, 2300, note. .•Vllowance for quarters and fuel, 1956. .\mmunition accounted for, 1861. .\l>[>oiiitment of veterinarians, 1920. INDEX. 865 Secretary of War— Continued. Approval of exigency exp)enditure after made, 853. Approval of plans, etc., of bridge.s by, 615, UK!, 618, 620-623, 629, 631, 640. Approval of report of examining board as to retirement, 2207. Arm.s accounted for, 1861 . Arms and ammunition, issue, 2096. Army regulations, promidgation of, 2294. As witness, 2469. Attendance of witnesses authorized by, 2468. Authenticating copies of official papers, 1845, 1846. Authority of— For sale of condemned stores, 2277. To accept donations of land, etc., 1491. To decide as to honest and faithful service, 1119, 1266-1268. Over navigable waters, 1773-1775. To permit boring for gas on military reserva- tion, 2089. Buildings, hire of, 2302. Can not — Delegate power to discharge for disability, etc., 1184. Extend time for completion of bridge, 627. Relieve contractor from losses, etc., 926, 927, 929, 932. Claims, reargument upon, 2295. Claims to title to military reservation, 2111. Commissioned officer, dismissal of, 2298. Commutation — Of quarters, 1941. Of rations, 19.58. Compensation of expert witnesses, 2483. Congres.s delegating pardoning power to, 1880. Contracts — For supplies, etc., 2301. Requiring approval of, 9.56. Courts-martial, convening, approving, promul- gating, and mitigating sentence of, by, 1021, 2039, 2294. Courts of inquiry, 2296. Decision upon claims, 2295. Delegation of power of, 635. Deserters, dropping of, 2294. Destruction of official papers, 1844. Discretionary power as to honest and faithful service, 1266-1268. Dismissal, retirement, or resignation of officers, 2294. Dismissed officer, restoration, 2369, note. 2373. Disposal of ordnance property, 1862. Disposition of personal jiroperty of United States, 2090. Erection of bridge on public property, 2089. Erection of telegraph lines on military reserva- tion, 2089. Escort for discharged i n valid soldier ti > Soldiers" Home, 2335. Establishment of ferry in limits of military res- ervation, 2089. Secretary of War- Continued. Forage for horses of suspended officer, 2424. Forfeiture retained pay, 1934. Furnishing copies official papers, 1843, 1846. Gift of land, acceptance, 2105, 2106. Harbor lines, establishment, 2272. Has direction of general staff of Army, 1435. Hire of buildings, 2302, note. Honorable discharge to dismissed officer, 2368. Indian country- Introduction of liquors into, ].50t)-1.502, 2287. License trade with in, 1499. International Boundary Commission, 1832. Introduction of liquors into Alaska, 1502. Issue of supplies to storm sufferers, 2300, note. Issues ordnance stores, 1861. Lease of land for public works, 2307. Lease of lands in national parks, 2433. Licenses granted by, 1599-1616. Loan of public property, 2095. May not suspend operation of eight-hour law, 1240. Mitigation or remission of punishments, 2294. Moneys, allotments by river commissions, 2270. National Soldiers' Home, establishment of branches, 2338. No control over labor employed by contractors, 953. Not authorized to relea.se guarantors, 876. Obtaining information from records, 1843. Orders issued by, character of, 2294. Papers, confidential, copies of, 2298. Promulgation of regulations, 2392. Property of War Department, 2297. Public lands, determination of title, 2303. Public papers, withholding of, 2306. Public property, proceeds of lea.se, 2084. Public printing, 20S5, 2086. Pu. chase of land, 2108, 230-1. Reopening — Of action of predecessor, 2296. Of clams, 2295, 2296. Of settlement by, 2358. Reports, confidential, cojues of , 1557,2298. Reserved lands, disposition of, 2299. Restored officers placed on retired list, 2370, 2372. Returns to Chief of Ordnance, 1861. Revival of claims for mileage, 2305. Revocable license — To railway company, 2268. Over public lands, 2268, 2307. Right of way — Approval and reapproval, 2264. Over military reservation, 2088. River and harbor work, 2301, 2307. River commission.s — Allotments of moneys, 2270. Not subject to, 2272. Sale of military reservation, 2360. Sale of quartermaster's supplies to civilians, 2392. Sale or exchange of public property, 2104. Sale to civilians of .subsistence supplies, 2392. i()l»()0— 01" -00 8(')() INJ)KX. Sccrctiir) of War — ("oiitiiiiicri. Siildicrs' Miiinc, Niitioiml Vulmilccr, supcrvi- sioii of alTiiirs, 'j;ii;5. Hloppagi' of i>ay, 190(i, 2374, 23.S3. Sunnnoiis, sorvice of, 2470. Surri'iidiT of public laurts, 'SMi. Titlf to public hiiKls, dispiUi-d, '230:i. Title to right of wiiy, 22(i2. Todc'torminenh toan obstruct inn to navigation, (•)35. Transfer of i)ropiTty, 2091, 2297. Transjiortation and escort for I'nitcd Slates judge, 2095. Unserviceable property, insjieclious, 2281-22.85. Validity of orders of, 2294. War i>o\ver, execution of, 2159. Water pipes on public property, 2089. Will not <;onscnt to use of convict labor, 953, note. Witness fees, 2485. Sedition, 22, 23 A. W. Sciitfiico: (.'^ee Sentence and I'lmishment.) Abridgment of, by good conduct, 1482-1484. Action by President, 2040. 2041. Action of reviewing aiithority shown in record, 213t> k. Adjudged on Sunday. 1010. Approval of, 104, 109, 110 A. W.: 323-33.5, 2227- 2229, 223(i. 2237, 2239-2244, 2'294. Absence of department commander, 325. By General Commanding Army, 333, 334. By President, 2227. Department commander relieved, 33J. Department discontinued, 333. Oflficcr commanding for time V)eing, 104, 109 A. W,, 320, 327, 329-331, 3;<3-335. Order promulgating, 332,2244. Post command distributed in department, 330. Qiialitications i>f olliccr cninniandinK for time being, 335. Separate brigade merged in division, 320, 329. •Transfer of prisoner before, 328. Army, restoration to, 18()9, 1870. As .set forth in recr)rd, 2130 n. and /. Can not, by implication, effect right of i>ay, liWO. Cashiering, l]9t!. ('(mimencement of, 14ii2. (;ommutation of, 347, 34s, •2229, 2235, 2243, 2119. Conliiiement in, termimiti'd by a second, 1478. (.'onlirmatioil of, 109 A. W. Congress remitting-, 1880. Constructive j)ardon, 1873. Death—, 90, 111 A. W.; 2.S.5-2.S7, 339-341, 1079, 2227. By military eomml.s.sion, 1079. Reviewing authority, 2227. Suspen.sion of, 111 A. W.; 339-341. Time and i)lace for execution, 28(i, 2x7. Deposit pay, 1913. Determination of, 2079. Disabilities, removal of, 1807, l.s70, l.s72. l)isap|>roval of by reviewing autliorily, I I5S, 2227, 2229, 2230, 2234-2230, 2238, 2245. SciitciK-c- Con tinned. Disclosing, to the prejudice, etc., 1.59. Dishonorable discharge — Executed, 11.50. P'or fraudulent enlistment, 1 123. Involved in, 1104. Di.smi.ssal by—, 1190-1202. Order as distinguished from by .senti-nce, 1203. Divulged to clerk, 7<)8. I'^nlistment upon remission of, 1271. Kxceeding maximum i)unishment. 10.50, KiSl, 2237. Executed — J'ardon and miligation of, 343, 1.SOO, 1.8,S0, 2176. Execution of, 14.59, 14(K). On Military Academy cadets, 2325. E.xtending beyond term of enlistment. 141)0. Expressly stopping amotint of reward. 1075. Extension of service by, 231(;. Field officers', confirmation of. 110 .\. W. Force and effect of, 1473. Forfeitures, 1073, 1376-1409, 1894, 1902, 1VH)3, 1961, 1902. (lood conduct under, 1875. Illegal, mitigation of, 352. Imprisonment tintil fine is paid, 1373. Inade<|uatc, no ground for second trial. In time of war, etc., .58 A. W.; 90,91,93. Irregular and inoperative, 14.58. Loss of rank ing ai 2441. of inferior courts, 220-224. Of military (K)mniission, 1093, 1(>94. Operation of imposing forfeiture, 2325. Orders promulgating, 18C>0, 2230, 2237, 2241-2244. Order of promulgation not necessary to validity of, 1860. Of courts-martial — As to pay, ]89(>. Express disajiproval by reviewing authority, 2229. When valid, 18.57. 18;59, iscii. Of discharge — At date to be lixol by reviewing authority illegal, 1147. Date of execution of. 1 1.55. Execution of, lUO. Of dishonorable discharge no dis.|ualilication for civil employment under I'nited .States, 1149. Of dismissal—, 100, 107 A. W.; 191, 1201, 1819. 1.8.52. Conlirmation of, liiti, 107 A. W. 1197-1199. Illegal, 1199. Legal disability, 1201. Notice of. 1197. Katilicalion of irrrirnlar contirniadon. note. Taking cITeci of. 1197, 1198. 308. 2229, 2235, 2213, rused ironed. 33(;-3:?8, 1197- 191, 330-3:?.><, 337, INDEX. 867 Sentence — Continued. Of general officers, coiitirmution of, 108 A. W. Of insane soldier, 15l(i. Of suspension — Effect of, on promotion, 12070. Extended to pay, 2417. Pardon, 2235, 2243, 18C9-1.S71. Pay of— Enlisted men awaiting, 18%. Officer awaiting, 1896. Postponement of execution, 358. Promotion while under, 1320, 1873. Protracted arrest ground for mitigation hf, 70 A. W.; .506. Punishment, oumnlative. 1479-1481. Remission of — .\fter approval of, 1516. By reviewing authority, 2229, 2235, 2243, 2403- Ky summary discharge, 1148. Continuing punishments, 1871. Revocation of, 21 66. Reprimand, 2174,2176. Revision of, 2249. Right of soldier to — Clothing allowance under, 816, 819. Pension when disabled, serving or awaiting, 1617, 1624. Mandatory and exclusive, 61 A. W.; 142, 2310. • Summary court, approval of, 2394. Suspension of. 111 A. \V.: 339-341, 346, 2326, 2408-2424. To confinement and forfeiture for same period, 1385, 1386. To confinement in penitentiary, 97 A. W.; 289, 292-294, 296-300. Travel pay and allowance, 1919. Variance of name, 2442. Void by error in record. 2143. When and by whom remitted, 349. When beyond executive control, 2041. When void, 91, 2143. Sentence and punishment: iSee itiinishinrnl ani] sentence.) Adding to, illegal, 2310, 2321. Affected by finding, 2312. Branding or marking prohibited, 2314. Civil statutes in reference to mea.sure of pun- ishment, 2318. Cumulative puni.vhment, 2317. Date from which operative, 2325. Deserter serving after expiration of enlistment, 2315. Determination by courts-martial, 2308-2310. Discretion of court-martial as to, 2313. Duty of members of court as to voting, 2309. Excessive punishments, 2313, 2318, 2323. Finality of executed, 2323. In excess of legal limit, 2324. Not to be imposed by mere order, 2322. Making good lost time, 2316. Military duty as a punishment, 2315. Mitigation of, 2312, 2321. (See I'miUhment.) Month in sentence, construction of, 2319. Not legally imiK>sal)le without triiil, 2322, note. Sentence and punishment — Continued. Operation of sentence imposing forfeiture, 2325. Prohibition of corporal punishment, 2314. Punishment of ball and chain, 2314. Punishment by custom of the service, 2313. Service after expiration of enlistment, 2315, 2316. Suspension of, 2326. Unusual punishments, 2314. Valid and operative, 2310, 2311, 2312. Where Articles of War mandatory, 2310. Sentinel: Entitled to i)rotection in discharge of duty, 2327. Illegitimate orders, observance, 2327. Punishment for interference with, 2327. Respect to be observed toward, 2327. Sleeping on post, 39 A. W.; 55. Serjeants : In engineer battalion, detail of, 1248. Ordnance, 1864, 1865, 1929. Pay of, 1929. Post quartermaster, 2018, 2019. Servants: (See Offinrr'n servant.) Officers', 161, 1842. Public, arrest of, by civil authorities while on duty, 518, note. Service: Academy, computed in retirement, 2235. Compensation for extra, 840-843. Forty years', retirement, 2205. Honest and faithful, reenlistment, 2158. In Marine Corps during civil war, 2222. Thirty years', retirement. 2205, 2221-2224. Twenty years', 2157. Under fraudulent enlistment, computed in re- tiring enlisted men, 2221. War- Furlough, retirement, 2223. In Cuba, retirement, 2223. In Porto Rico, retirement, 2223. Retirement of enlisted men, 2217, 2222, 2223. Sessiitn: Hours of, for courts-martial, 94 A. W.; 281-284. Set-off, 937-939. Shall construed as may, s7. Shore of navigable waters: Jurisdiction over, 1711, 1712, 1773. Shoes made by prisoners issued for use of Army, 1697. Signal Officer, thief: Court appointed by, 212. Signal Service: Extra-duty pay, 1330. Sisrniiture. forainsr, etc.. 60 A. W.: 109. Sine die a(l,iournnieut, 394, 395. Sleeping on post: Sentinel, 39 A. W. Defense to charge, 55. Evidence in mitigation, 55. Smithsonian Institution : I'rojierty delivered to. 665. Soldier: (See Enlisted men; Indian soldier or scout. ) Acquitted by United States court, transporta- tion, 1967. 808 TNDF.X. SoUlliT — ("onlinucd. Army, restoration to. 18t)9, 1870. Arrest of. for ofTen.se coimuittod before enlist- iiieiit, Itlli. Charged witli crimOs. till A. \V. Citizenship of aliens, THti. Coii.stnictive pardon. 1.H7;!. Deceased — (Claims against. 19'22. Klleet.s, accoiuitability for, 127 A. \V.; 373. KITect.s, inventory of. V2C, A. W. Deposits willi paymasters, 1913. De.sertion, stoppages, 2379-2380. Forfeiture of i)ay, 1902, 1903. Fugitive from justiee, 1870. Grounds for recommending pardon, 1875, 1876. improperly held in irons, 1875. In.sane, cure of, in State homes, 23-10. Lial>ility to taxation, 2425, 2427, 2428. Not permitted to surrender to civil authority, 100. Notice to, when operative, 18.')0, 18.52. Obeying illegal order, 18.53. Patronizing gambling hou.ses, 18.56. Pardon of deceased, 18G6, note. Pay of — Awaiting result of trial, 1914. Awaiting sentence. 189ti. For certificate of merit, 1932. How deprived of, 1896. In arrest, 1896. Prior to enlistment or muster in, 1895. Restoration of, 1869. Purc'hase of land for burial purposes, 2100, 2107. Reenli.sted pay, 1911, 1912. Return of, to civil authority, when under bail, 98. Right to pay while held as prisoner of war, 20t;2, 2063. Sale, etc., of arms, etc., 2273-2276. .Stoppage of pay, etc., 2374-2381, 2384-2385,2387. Sentinel, respect to, 2327. Title of, to clothing, on discharge, 2276. Trial of, under civil bail, 99. Soldiers' Home: Admi.ssion to, 1623,1625. A.ssignnient of retired otti'-er to. 2211. Forfeitures accruing to. 1384. note. National. 2328-2338. Amenability to laws of District of Columbia, 2328. hoard of comnii.ssioners to make contracts ftsand expenditures, 2341-2343. Supervision of accounts, 2341,2342,2343. Suiiervision of atTairs, 2:543. Taxation of inmates. 2429. Use of funds by, 2:541-2:543. State, 2:539-2340. Abandonment of privileges of, 2:540. Application of moneys donated to, 2339. (lare of disabled soldiers and sailors, payments to, 2:539. Kstabli.shnient and maintenance, 2:539. Expenditure of funds, 2:5:59. Payment to, for care of insane .soldiers, 2340. Piiyments to State or Territory, 2340. Solitary <-oiifliifiiieiit: Limitations of, 2:544. Southern Chiiiiis ('oiiimiKsIoii, 781. Spain, war tvilli: Coniiiiencciiienl ol, 24.58. S|ieelflrali()ns settini; forth previous trials anil eonvict ions: Not proper, 1.52. Speeehes: Provoking, etc., 25 A. W.; 34. Sprinirlleld .Vrsenal: Master machinist at, 1822. Spy: Definition of, 2340-23.50. Gravamen of offense, 2346. Illu.strations of otTense of, 2347-2:149. Laws of war, violation, 2346,2349,2:1.50. Member of army of enemy, 2:540. Must be taken in flagrante delicto, 2347. Sentence of, 1693. Soldier separated from Army, 2349. Trial of, by military court, 1689, 2346. Staff of the Army: General, delined, etc., 14:5.5. Slandinir .\rniy : Regular Army, 2101. State: Adjutants-General, penalty envelope, 1978. Apiiointment of volunteer otticers, 2451. .\s principal in bond, 589. A.ssistant to Adjutant-General of, 1816. INDEX. 869 state — Continued. Assumption of war power by governors, 2459. Authority of, to erect bridge, 614. Disqualification under laws of, 18(i7, 18S1. Employment of Army to protect, etc., 488-48.5. Establishment of soldiers' homes, 2339. Navigable waters wholly within, legislation concerning, 61.5. Office in, defined, 1817. Organizations, part of volunteers, 2449. Prohibition, sale of intoxicants, 2288. Report of, regarding militia, 1742. Restoration to citizenship, 1867, 1872. Retired enlisted men holding office in. I.v20. . Soldiers' Home, payments to, 2340. Taxation by, 2427-2436. Court, habeas (■i)ri)us. 14:>s-1442. Statenieut of accused : Admission of facts in, 2352, 2353. Freedom of expression in, 23.54. Inconsistent with plea, 1990, 1992. Nature and privilege of, 2353, 2354. Personal attacks or disresiiectful language in, 23.54. Publication of improper, offense of. 23-56. Relation to evidence, 2352, 2353. Right of prosecution to closing argument, 23.55. Statement of service: Admission of, as evidence, 2049. Not to include present character, 733. Statute: Construction of, 2357-2366. Territorial, operation of, on military reserva- tion, 2439. Construction of — Appropriation acts, 23.59. Articles of War, 2357. "Authorized" in act of Congress, 23.58. Congressional debate as an aid to. 23t)l. Distinction between "authorized" and "di- rected," 2360. Effect of, in reviving former legislation, 2364. Is.suance of commission of prior dale, 2362. "May" in statute, 23.58. Principle as to computation of time, 2366. Relating to purchase of supplies after adver- tisement, 2365. Reopening of settlement, 23.58. Requirements not to be varied, 2362. When mandatory, 2358-2360, 2362-2363. For restoration, etc., of dismi.ssed officers — Amendment of record of di.smissal, 2367. Appointing power to authorize, 2367. Dismi.ssed officer, 2367-2369, note, 2373. Honorable discharge to dismissed officer, 2368. Nonconformance with requirements of Con- stitution, 2368, 2370, 2373. Officer— Dismi.ssed by error, 2370. Erroneously mustered out, 2370-2372. Wrongfully dismissed, 2373. Pay and allowances under, 2371. Restoration, by President, of former ofliccr, 2369, 2370-2372, 2373. Statute of limitation, 103 A. W.; 314-322: (See Limitation, statittr (if. ) Desertion, 103 A. W.; 314-322, 1077, 1100-1102. How pleaded, 320. Waiver, 320. Stealing, from soldier or ofBcer: How charged, 149. Stenographic reporter, 2170. Stores: (See Militar!/ xtores.) Captured, 9 A. W.; 3. Authority to di.spose of, 3. Condemned — Not to be exchanged for new, 2282. Sale of. (See Sali; of Condemned Storea.) Damaged or un.suitable, inspection of, 2281, 2285. Deficient or damaged, accountability, 3.83. Excess, not deemed "unsuital>le," 2279. Military — Accountability for, 10 A. W. Improvement of rivers and harbors, 1496. Embezzlement of, 60 A. W. Larceny of. 60 A. W.; 113. Misapi)ropriation of, 60 A. W.; 116. Ordnance, returns of, 186. Peiuilty for loss or damage to. 15 A. W. Receiving in pledge, etc. ,60 A. W. " Unsuitable," definition of, 2279, 2280. Unserviceable, inspection of, 2281, 2285. Subsistence, addition to cost of, 2389-2391. Stoppage: (See Pay.) Against officer, 1900. Allowances of witnesses, 2380. Arrears to United States, 23iS7. As punishment for an offense, 2377. Authority for, 2374, 2376-2379, 2382-2387. Claim for alimony, 2383. Damage done to j)ublic property, 2377. Deceased officers, 1427. Deposits for safekeeping, 2375. Distinguished from fine or forfeiture, 2377. Erroneous payment of civilian employee, 23.S6. Expenses of trial by court-martial, 2380, 2:>.s5. Fees illegally received liy a U. S. consul, retired officer, 2382. Fine, as distinguished from, 1370. For absence without leave, 2385. For indebtedness to United States, 2383. For less of post exchange funds, 2012,2384. Liability incurred on former enlistment, 2376. Loss of — Bakery funds, 2384. Company funds, 2384. Hospital funds, 2384. Of " detained " pay, 2378. Of pay in favor of tailor, 27. On account of — Desertion, 2379, 2380. Personal indebtedness, 2375. Private claim, 2SS1. Rate of, 2387. To reimburse post exchange and other funds 1384, note; 1424, 1425. To reimburse the United States, 12. 870 INDEX. SIroiims : N'avij;iil)ility '>!. IT'.K',. Strlklnu: a solillcr: 'I'.i ihf i.njiiilicf. ill'.. I.V.I. Slrlkini.' siipcrlur oniccr: Jl .\. W.: ]y. Kiinii 111' i-liar.L.'c nl'. I'.i. Sliidciit iinit'frK: Leave of nl)seliee, l.">;ts. Sulicoiilraclurs, 91 l-'.ll(i, "-MS. iM'.l. Sultslslciicc: Cuiilracts fur, .S.SS. Km- clerks anil iiie.sseiiger.s, 809. I\etirei eiiliste19, l.'j')0, 2471. Territorial, on military persons, 2438. Sulislstt'iirc Dt'partniciit: (See Siibitixlnirr.ilnrps.) Commutation of rations, 1957. Issnt's to officers' servants. 1S42. .-^alvaffe of sii})])lies, 2291. Snbsistenee to place of enlisfiiieiil. 1919. Sultsistciicc stores: .Addition of 10 pereent to cost, 2:i89-2391, Liability of, officers' mess for, '23«8. Sale— liy contractors, 2391. To civilians, 2392. To oHicers and .soldiers, 23.S,s-2391. Sal vase of, 2291. Sulistltutc: Mnsterln of, not necessary, 1-231. Siihstitiilidiis of pimisliiiK-iit. 1(148, 1(;.'>2-1(;,")4. SiiircriTs from cyvloiit- in I'orto lili-o: Relief of, 4.")(i. SiifftTfrs ill Alaska: Relief of, 47.s. Suits: I'se of ] latent, 1889. Siiiiiiiiary I'ourt: (See Ciiinls-niftrtid!. siiiiiiiiari/. t Appointment — .\t I'nited States g-eneral hospitals, 2405. In independent commands. '24(1.'). On I'nited States hospital .ship, 240;i. Approval of sentence, 2394. Arraiffnnient before, •239.=>, 2'm>, '2:t98. A. W. 94 not applicabh- to, 2397. •Vttendance of civilian witnesses, 2400. .Vulhority for, al Mot Springs, Ark., •240.i. Conipen.satioii of civilian witnesses, 240(1. Lvidence of ])revious convictions, 20,');i. Korfeitiire of pay by, 1 KlI. Hours of .session, '2397. Illegal i)roceediiigs of, 2391). Imposition of — Disliononible iliseliarge. ■2402. Forfeiture, 2401. Invalidation of )proceel)lemental eontraets. 90s. 909. 911-917. 928, 929. Supplies, etc.: Contracts for, '2:101. Delivery of, effect oh appropriations, 137. For War Department, 849. Ksued to storm sulTerers, •23(K). Methods of purchasing. 880. Xece.ssary, eontriu-ts for, 8.S8. Purchase after adverti.sement, ■23(l.'i. I'lirchase of iiatented articles, ],S90. For improvi'ment of rivers and harl)ors, reports of purchases, 149.^. For l|uarlernia.ster's and Subsisleiice |)i'part- nieiits, K/iO. INDEX. 871 Surety: (See Contract.) Army officer as, 536. Assent of, to material changes in contract, 908. Can not qualify his obligation, 5:55. Certificate as to .sufficiency of, 539. Dispensing with, 577, 590. Dispensing with bond, 577, 590. Division of responsibility between old and new, 556, 557. Justification of, 537, 539, 540, 551, 553. Married woman as, 550. Member of Congress as. 571. Member of family as, 502. Not liable if bid is withdrawn before accei)t- anee, 870, note. Obligation of, 535, 548. On contractor's bond, consent to sue, 948. Withholding of funds due contractors to in- demnify, 952. Releasing of, .549, 554, 556, 565. To be bound jointly and severally, etc., 5:.;8, 552. Withdrawal of, 554. Surety eonipanies: Financial statement of, 600. Foreign, 001. Indemnity to, ■598. Papers required to be liled by, .599. Surety on bond : Acceptance of, .577. Justification of, 577. Surgeons: (See Actin;/ (isgixtuiit or cdiitrad sur- geons. ) Acting assistant or contract. 63 \. \\ .. 384-391. Act of May 12, 1898, 389, 3'.l0. Amenability to military jurisdictiim in time of war, 384, 385. Authority to employ, 385, 388, note. Burial expenses, 388, note. Can not be compelled to remain in service after expiration of contract, 391. Civilian physician, not serving with a mili- tary force, etc., 388. Commutation of quarters, 389. Compensation, 389. Compensation for enlisted man employed as, 841. Duty, pay, etc., 385. Enlisted men emphjyed as, 386. Entitled to — Per diem allowance, etc., as witness on courts-martial, 384. Purchase fuel from Quartermaster's Depart- ment, 390. Have no military rank or status, 384. Mileage, 388, note. Not eligible — For medal of honor, 16.56. Fordetail asmemberof amilitary court, 384. Not entitled to benefit of act of March 3, 1885. 387. Not military officers, noncommissioned offi- cers, or privates, 384, 385, 388, note. Not subject to military orders in general, 381. Surgeons — Continued. Assistant, appointment of, to rank of captain, 414. Promotions of, by operation of law, 5i>:i. Relative rank of, -526. Surrender: Compelling, 43 A. W. Suspension: Allowance for — Fuel, 2418. Rent of quarters, 2418. Arrest or confinement not inipliL'y,2114, 2421. Commutation of dismi.s.sal to, 2416, 2119. Effect of— As to promotion, 2410-2412. On selection of quarters, 2412. On right of precedence, 2412. Execution of sentence of, 2414. Forage for horses, 2424. Forfeiture of pay by sentence of, 2417. From Military Academy, 2116. From rank- As affecting office, 21U9, 2411. Nature of, 2408. Illegal additions to sentence of, 2111, 2115. Leave of absence under, 2414. Loss of files involved in, 2411. Noncommissioned officers, 2423, note. Of officers' ]>ay and emoluments, 101 \. W. Officers subject to military control. 24C9. Of .sentence of death and dismissal, 111 .V.W.; 339-341. Pay and allowances under, 2415, 2418. Pay not forfeited by implication, 2122. Performance of duties by officer tuider, 2120. Post commander under, 2413. Remission or termination of sentence, 2120. Retention of quarters, 2412-2413. Right to allowances not affected by, 2418. Right to quarters under, 2412. Sentence of, effect on promotion, 2U70. Status of officer under sentence of, 2419. When sentence takes effect, 2423. Swords of officers: Depriving of, 65 .V. W. Tactics, cjivalry: Sale of publication rights, 2(i9(). Tarf)le's case: Discharge on habeas ccirims, 1138, note. Target practice : Appropriation for, 446. Tattooing, etc. , 98 A. W. Tax: Against enemy jiistiiied liy law of war, 1.575, 1.581. By territory on beer on military reservation, 2430. Enlisted men, 2179. E.xemption by cession of jurisdiction, 677. Exemption of United States ag(>nts and instru- ments in Territory, 797. E.x -.soldiers not exempt from, 2429. Fort Porter Military Reservation exempt from, 2435. 872 INDEX. Tax— Ciiiitimied. Fort Shi'ridnn, 111.. MililJiry Kcsciviiliun exempt from, 'Z\'.V). Illi'giil levy on military reservations, 'Ji;}"). Inmateof National Volunteer Home not exempt from, ■U29. Jackson Barracks, l.a.. Military lieservalion ex- empt from, 'li'M'i. Liahilily of military persons, •J-12.')-2428. Liability of post exchange to, liOli, 2014. Liability to, alTectofl by cession of jurisdiction, 242S. Military lands in California cxemiit from. 2131. National Cemetery, I'biladelphia, exempt from, 2436. Officers, 21711. On bcersolxicaiit.s to Indians, 2i:'.9. Territory — Con tinned. Soldiers' Homes — Establl.shment of, 2339. Payments to, 2340. Sovereignty over re.serveenses, reimbursement of, 1967. F4. Of remains of ottii'ors and enlisted men, A'i'^. Offleers' horses, 1952, 1953. On account of desertion, lOiio, 1000, 1008, 1070, 1084, 1089. Prisoners to penitentiary, 1471. Soldier acquitted by U. S. court, 1907. To place of enlistment, 1919. To procure artificial limbs, 1919. Triiiisports: Employees, etc., trial of, 102. In harbor, jurisdiction over crime committed on, 759. Summons served on officers on board of, 700. Travel allowaiifo, 1132, 1108, 1171, 1184, 1378, 1423, 1447, 1448, note, 1919-1921, 194.5-1951, 1903- 1967: Forfeiture of — By discharge without honor, 1132, 1184. By dishonorable discharge, 1168. Upon discharge for disability, etc., 1132, 1184. Waiver of, upon discharge by way of favor, 1171. Travel pay: (Seo Trnrd allowance.) Traveliii!!: exi)eiises: Of officers attending courts, 447. River commissions, allowances, 2271. Treasury Department: (See Public inrmcy.) Cover-in of funds, 2102. Debts to United States, 2387. Exchange of i)ublic property, 2093. Forged check, liability for payment on, 1 11(1. Hire of buildings, 2302. Payment of public money into Treasury, 2080, 2083. Public money paid into, as miscellaneous re- ceipts, 2083, 2282. Trees: Cutting of, on military reservation, 1702,1708, 1715. Sale of, on military reservation, 1710. Trespass: On Indian country or reswvation, 487. On military reservation, 1700, 1704, 1713-1715, 1717. On national cemetery, 170i;. Trial: Accu.sed not entitled to, by court-martial, 2440. After separation from service, liability to, 117, 118. Alleging previous, not pleading an offense, 152. Arre.st not essential to, 502. Court-martial, right of accused to, 2440. Civil and military, for same offense, 306, 309. Claim for loss of wages by, 770. Delay in preferring charge, 722. Effect of keeping accused ironed during, 2441. For desertion from Army of a deserter fnmi Marine Corps, 1097. Insanity of accused, effect of, 1515, 1516. Liability to- After expiration of term of enlistment, 317. After separation from service, 317. Trials — Continued. Mileage of officer ordered to attend own, 1072. New, 1796. Of officer, time of, 71 A. \V. Postponement, 2396. Proceedings not amounting to, 305,313. Referring charges for, 719. Restoration of deserter to duty without, 70-72, 1060,1090,1103,1122. Retired enlisted men by court-martial, 2218. Retired officer, 2200. Revision record of, 2249-22.52, 22.54-22.58. Spy, amenability to, 2340-23.51. Time for, after offense, 319. Tried twice for same offense, 102 A. W.: .303-313. Troops : How paid, 1924. Subject to articles of war, 04 A. W. Twice in jeopardy, 102 A.W.: 1.52,303-313. Typewriter : Enlisted man, extra-duty pay, 1337. Unassigned officer: Dismissal of, 1217. I'nexpended balance of appropriation: (See Ap- propriation. ) Use of, 894. liniform : Officer drunk, disorderly, etc., while in, how charged, 129-131. I'nited States: Assignment patent right, 1888. Bond of indemnity, 1890. Liability for use of patent, 18S9. Use of patent of officer, 1887. United States Army: (See sirmy and Office.) Officer, holding civil office, 1812-1837. United States Commissioner: Discharge of army deserter, 2442. Jurisdiction of, 2442. United States court: Writs of habeas corpus, 1443. Unliquidated damages: Contract, 769-773, 917. Unserviceal)Ie property : Inspection of, 1490. rnsuitable stores: Definition and disposition, 2279-2281. I'se of Army in aid of civil power. (See Army and Appendi.x B. ) Vacating commissions: Officers accepting oflice, 1812-1815, 1822, 1824, 1825, 1827, 1831, 1833, 1835. Variance: (See Misnomer.) In name, correction of, 2443. In allegations of time, 713. In form of .specifications, 732. In middle initial, not material, 2443. Material, in name of accused, 2443. Vessel: Levying illegal toll on, 1790. Of enemy in hostile country, claim for, 779. Sunken, removal of, from navigable waters 1774, 1789. 16900—01- -56 874 INDEX. Vctfrliiarlaiis: Aiii»>iiitnK'iit, IMO. I'ay mill alli)\viinct's, 1920. Vt'tcrliii;ry siirirctiiis. (Sei- \'ilrriii((ri(niK.) VIcksl.urir >lillf.irj Park: Awtliorily to i'iiii)l9. Violence, etc. : To noncommis-sioneii officer, how charged, 21. To jiersons bringing in provisions, etc., rt6 A. W. To soldier, to the prejudice, etc.. l.')9. To superior officer, form of charge of, 19. Violent punishment, 1192 1191. Voluntary assiu'nnients of contracts. SH);i. IHU;. Volunteers: .\pliointiueiU of regimental officers of. -1:51. Appointment of retired officers as, 2211. Altenition of records of, 24.%. Authority for calling into service, 2419, 24.">0. Burial place for inmates of Home. 1770. Character of .service, howrletermined. 24.')2. Commission, acceptance. 21.'>l. Composition of .\rmy. 2419. Deserters upon disbandment of .\rmy, HtlO. Desertion, 1098. Discharge of— After disbandment of Army. 1 liil. Enlisted men of, 2^2. Officer, on findings of unsworn board, 2453. Distinct from militia and from regulars, 2444. Distinguished from militia, 1744. Entry of names on Army Register, 2448. E.xfa pay to, 24.'y2. Holding State and county office, 1837. Honorable di.scharge for di.smis.';ed officer, 244.5. Hospital corps, 14.50, 1451. Meaning of " Volunteer .Vrmy." 2449. Members of board need not ln' sworn, 24.5;>. Militia as,2449, 24.50. Militia, State, in .service of rnitcil States, 2449. Muster-in of, 2444, 2147. r.se penalty envelope. 197-h. Muster out of, 17.5.5-17(12. Officers- Appointment, 431-133, 2451. Commencement of service, 2454. Contracts, 9.57. Date of muster out of, 11.51. Of civil war, e.xtra pay, 134('>. (Organization of, 2449. Part of the Army of the fnited Slates, 2444, 244G. Pay of militia a.s, 24.50. Precedence of rank by virtue of service as, 2123. Quarternuisters of 1864, status of, 2448. Hank, 123 A. \V. Records of, 24.55. Regular .\rmy. distinguished from. 21('i0. Relief for oIliciT luijustly dismis.sed, 2415. Kemoval of dimibility of officers, 2107. Volunteers— Continued. Restoration, after dismis.sa1, of officers, 244.5. Right of militia to be recognized as, 24.50. Right to claim discharge upon disbandment of Army, 1186. Soldiers' Home, court-martial, 1038. Service, finding of boanl on character of, 2452. Service in, entitling to rank in .\rmy. 24 IG. State— .Vpixiintments by govcrn9. Sick witness, adjonrnnieiit ni court iii of, 395, note. Subpoenas, compensation for service n list, etc 2ir,.-. , U,9 J 1(17 2f(;s .|Ui irti'Ps f, 2 71. Witness— Continued. Sub|)(eiuis. .service of, 2471. .'Summoned by juilKc-ailvocati'. l.'i^J. Summons, iiaynient for service of, 2470. Suspension of trial for absence of, UKKS. SwcariiiK of, notef accused, conipelcucy of, 24(;2. Women trialilr li) mililiiry I'diiiiiilssloii. 1i;s(l, note. Work (Idiie by hired ibiy laliiir, ,S(;i. Wrecks: Kcmuval of. from navipible waters, 1774, 17S9. Writs of liiilteas eiirpiis, ]4:it(-1443. (See Jliiheus rorpiii'. ) Wronits (if enlisted men: Redress of, :W A. \V. Wnniirs of (iflleers: Rc'dressof, 29 A. \V.: IW. Wydniln;,' : IrriKatiu}^ ditches on military reservations in, 22ti4. o ^^^^3 11349 ^^ ^0 •.V .0^ "•f' rO> >" A^ ^^^ ^- .,^ 9i c^^ ■*? >, "^^^^^ % ,-o'- .•^ v>v. '- % ./■ .^ )5 Q, i-^ ,0^" .^{--vc:. 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