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A DIGEST OF Ol'INIONS
Jlj'D(iE-Al)VO(;ATES GENERAL OF THE ARMY,
<)KI(ilNAIJ>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><ii;-Al)V(KATK (fK VOIJ NTEEKH, CaJTAIN, ]8tII JnKANTKY,
, juiiiiiooi: ;
DIVISION 01 DOCUMENTS.
WASHINGTON:
GOVFKNMENT PRINTINfJ OFFICE.
1901.
"War Department,
Docnmevi No. JST.
Office of the Judge- Advocate General.
JUN 11 1901
D. of D,
;ifO
;^?
JLDGE-ADA'OCATES GTillS^ERAT^ OF THE ARMY
Name.
From—
To-
Holt, Joseph
Sept. 3, 1862
Dec. 1,, 1862
Fel). 18, 1881
Jan. 3, 1895
Dee. 1, 1875
.Tan. 22, 1881
Jan. 3, 1895
Dunn, Wni. M
kSwaim, David ( f
Lieber, G. Norman^
^Capt. J. F. Lee was ai^pointed " Judge- Advocate of the Army"
under § 4 of the Act of ]\Iarch 2, 1849, and served as such until Sep-
tember 3, 1862.
^General Lieber was "Acting Judge-Advocate General" fu>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 <if as sufficient, unless signed l)y a Field Officer of the Regiment whence such
Soldier was disiuissed."
This api^ears to have been the first Article of War which required a discharge in
writinof. (Clode JNIil. & Mar. Law, 2d Ed. p. 260, n.) In the Articles of War of Wil-
liam and Mary, of 1692, there was an article which read as follows:
"No connnission officer after enrollment and being mustered shall be dismissed or
cashiered without order from His INIajesty; the General, or Commander in Chief for
the time being, or a General Court-Martial. But the Captains with the approbation
of their Colonels or of the Governors of the Garrison, where they are, may discharge
any non-commission officer or ])rivate soldier when they find cause, taking other non-
commission officer or ])rivate soldier in their places; Provided that such Colonel or
Governor shall forthwith certify the same to the Conunissary-General of the Blusters,
that (by their ajiprobation) suc-h non-commission officers or soldiers were discharged,
and others taken in tlieir places respectively, and in Quarters and Garrisons where
there are only single troops, or companies, the Captains' Certificates are forthwith to
be sent and accepted by the Commissary-General, expressing the day of each non-
commission officers and soldiers discharge or death, and who hath been entertained
in his place."
This article contained no requirement of a discharge in writing.
In a celebrated case — Grant r. Gould — decided in 1792, Lord Loughl)orough said:
"A person in pay as a soldier is fixed with the character of a soldier, and if once he
becomes subject to the militai'y character, he never can be released, but by a regular
5,6]
ARTICLES OF WAR.
FIFTH ARTICLE.
Any officer who knowingly musters as a soldier a person w^ho is not a soldier shall
be deemed guilty of knowingly making a false muster, and punished accordingly.
SIXTH ARTICLE.
Any officer who takes money, or other thing, Ijy way of gratification, on muster-
ing any regiment, troop, battery, or company, or on signing muster rolls, shall be
discharge. ' ' By ' ' regular discharge ' ' it has been understood that Lord Loughborough
meant discharge in writing. Accepting this as correct, there is an important fact to
be taken into consideration in connection with Lord Loughborough's ruling, namely
that at that time, as well as in 1717, when what was probably the original article
M'as adopted, enlistments were for life. Under Queen Anne a three years' term was
general; under the special circumstances of 1745 men were enlisted for two years;
and in 1759 and 1775 the term was three years, or till the end of the war. (Army
Book of the British Emi^ire, p. 17. ) And again in 1793 enlistments were for a limited
time. But in 1792, as well as in 1717, they were for life, and it was with reference
to this fact that Lord Loughborough's frequently cited decision was rendered. It
might be held that on account of this fact a peculiar meaning attached to the Article
of War which could not be given to it when enlistments were for limited terms.
Clode says: " It must not be supposed that the 'discharge' is the only test of status.
It was held so to ])e in Grant r. Gould, but then the enlistment being for life, the
onus of proof rested on the enlisted soldier to prove his discharge." (Clode, p. 260.)
In speaking of the "discharge" as a test of status he meant the discharge in writing
or certificate of discharge.
The present law and practice in regard to this subject in Great Britain is thus
explained in the " British INIanual of Military Law," issued from the War Office:
"The terms of the enlistment of a soldier, since he has been enlisted directly by the
Crown, have always been to serve the Sovereign so long as his services are required,
within the period for which he agrees to serve; consequently the Sovereign has
always had power to discharge the soldier. But a solder connot be discharged except
by order of the Sovereign or by statutory power, such as the sentence of a court
martial, to which is added in the Army Act, an ' order of the competent military
authority.'
"A soldier on his discharge is entitled to receive a certificate of discharge, so as to
show that he is properly discharged and is not a deserter."
This clearly shows the difference between the act of discharge and the certificate
of discharge, and may l)e accepted as a correct statement of the law, except jierhaps
when enlistments were for life. The history of the article does not therefore require
the construction that the delivery of a certificate of discharge is necessary to a valid
discharge and that a soldier can not get out of service without a written discharge.
Nor will an application of the well-established rules of construction lead to such a
conclusion. Whatever may have been the meaning of the article when the term of
service was for life, it seems clear that when the enlistment is for a term of years
only, and the soldier, therefore, has a legal right to his discharge on the expiration
of the term, this right can not be set at naught by his forcible retention in the serv-
ice. If this should be attempted he would l^e protected by the (Federal) civil courts,
who would not hesitate to release him from the military service on a writ of habeas
corpvx, without any regard to a military discharge.
But the military discharge in writing is prescribed as a regular procedure in ter-
minating the service, and its issuance is, therefore, an act done in the perfonnance
of a pul)lic duty; and the most reasonable construction of the 4th Article of War is"
that it is a direction as to the manner of performing a public act, and that, in the
absence of language making it impossible to give it this meaning, it is to be regarded
as directory only.
For the foregoing reasons and in consideration of long-established practice, held,
that a certificate of discharge is not necessary to a discharge, iMit that a soldier may
be discharged without a certificate or before lie is furnished with a certificate, upon
notice actual or constructive, and that when volunteers are mustered out it is that
act that separates them from the service. From report of Judge-Advocate General,
January 2, 1901. (See Card 9556— W. D. Cir., Feb. 15, 1901.)
6 ARTICLES OF WAR. [6-9
(ligini!?8ed from the service, and t^hall therel)y be (li8al)le<l to hold any office or employ-
ment in tlie service of the United States.
SEVENTH ARTICLE.
Every officer commanding a rejiiment, an independent troop, battery, or company,
or a garrison, shall, in the l)eginning of every month, transmit through the proper
channels, to the Department of War, an exact return of the same, specifying the
names of the officers then absent from their posts, with the reasons for and tke time
of their absence. And any officer who, through neglect or design, omits to send such
returns, shall, on conviction thereof, be punished as a court-martial may direct.
EIGHTH ARTICLE.
Every officer who knowingly makes a false return to the Department of War, or to
any of his superior officers, authorized to call for such returns, of the state of the regi-
ment, troop, or company, or garrison under his command; or of the arms, ammuni-
tion, clothing, or other stores thereuntobelonging, shall, on conviction thereof before
a court-martial, be cashiered.
1. This article refers only to returns made by certain commanders as
such. It is onl}^ m commander of a regiment, company, or garrison
that an officer can be made amenable to a charge under the Article: an
officer not exercising one of these conmiands is not within its terms. ^
XXX, 598, Augmt, 1S70; XXXII, 575, Ilaij, 1872; XXXIII, 188,
Jidy, 1872.
2. The "returns"' indicated in the Article can scarcely be said to
include returns of fiends; what is contemplated being mainly returns
of the jjersonncl or maferid of the command. A false return of a com-
pany" fund would more properly- be charged under another Article, as
the "eist or 62d. XXXVIII, 526, Moj-ch, 1877.
NINTH ARTICLE.
All public stores taken from the enemy shall be secured for the service of the
United States; and for neglect thereof the commanding officer shall be answerable.
3. This provision is in accordance with the principle of the law of
nations and of war, that enemy's property duly captured in war
becomes the property of the government or power by whose forces
it is taken, and not that of the individuals who take it.*^ "Private
persons cannot capture for their own benefit." ^ Military stores taken
^See, as sustaining the text, G. C. M. 0. 12, 19, War Dept., 1872, and 36, of 1877.
2 United States r. Klein, 13 Wallace, 128, 136; Decatur r. United States, Devereux
(Ct. Cls.), 110; Whiter. Red Chief, 1 Woods, 40; Branner r. Felkner, 1 Heisk., 232;
Worthy v. Kinamon, 44 Ga., 299; Huff v. Odom, 49 id., 395; 13 Opins. At. Gen.,
105; Hough (Practice), 329, 330; G. O. 54, Hdqrs. of Army, Mexico, 1848; G. O. 21,
War Dei>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)<t.
21] ARTICLES OF WAR. 13
sarv or in accordance with orders, reg-ulations, decision circulars, or
custom, and may disobey the order if, in his judgment (taking, of
course, all risks in case his judgment should be erroneous), it should
not be necessarj^, or should be at variance with orders, regulations,
decision circulars, or custom. It is his duty to obey such order first,
and if he should be aggrieved thereby he can seek redress afterwards." ^
24. Held that a member of a post band who refused (respectfully)
to ol)ev an order of the post connnander directing the band to play in
a town in the neighborhood of the post for the pleasure of the inhabit-
ants, was not chargeable with a violation of this Article. XXVII, 520,
February, 1S69. So held that a soldier was not chargeable with '"dis-
obedience of orders" in not complying with an order forbidding him
to contract marriage (XXXVIII, 47, April, 1876 — see Marriage);
and similarly Jidd of a refusal by a soldier to comph" with an order
(in violation of Sec. 1232, Rev. Sts.), to act as an officer's servant."
XLIV, 80, July, 1880.
25. The ofi'ence of disobedience of orders contemplated by this Arti-
cle, consists in a willful refusal or neglect to comply with a specific
order to do or not to do a particular thing. A mere failure to per-
form a routine duty 4s properly charged under Art. 62.'' XXXIII,
280, August, 1872. Where an officer neglected full}" to perform his
duty under general instructions given him in regard to the conduct of
an expedition against Indians; held that his ofi'ence was properly
chargeable not under the 21st but under the 02d Article. XXXVIII,
454, February, 1877.
26. An illiterate soldier, unable to sign his name, was furnished with
a written exhibit of it, and ordered by his commanding officer to con-
tinue to copy the same till he could proper!}" sign his name to papers.
He refused. Held that such order was not one palpal^h' illegal, and
that the soldier should have obeyed it and complained afterwards.
27, TO, Septetnher, 1888. When a soldier receives an order of doubtful
legality only, it is his duty to obey it and seek redress afterwards. If
he elects in surli a case to disobey it in the first instance, his action
is prejudicial to the good order and discipline of the service, and
' The civil respont^ibility is another matter. Civil courts have sometimes made
allowance for the requirements of military discipline, but, if they should not, the
military obli^^ation would I'emain unimpaired. The soldier, in entering the service,
has voluntarily submitted himself to this double and possibly contiicting liability.
The evil of an undicii)lined soldiery would be far greater than the injustice (appar-
ent, rather than actual) of this princi])le.
^So where a soldier was convicted of a disobedience of orders in refusing to assist
in building a private stable for an officer, the finding was disapproved on the ground
that such an order was not a lawful one. G. C. IM. O. 130, Dept. of Dakota, 1879.
^'See (i. ('. M. O. 26. War Dept., 1S72; do. 7, Dept. of Texas, 1874; G. O. 24, 35,
Fifth Tdil. Dist., 18HS.
14 ARTICLES OF WAR. [21,22
therefore a military oft'ence under tlie 62d Article of War. 27. 4S4,
Nor fin Txr, IHHH.
27. Vww 2r)(), A. K. (263 of 1805), is regarded as authorizing stoppages
in favor only of a tailor wlio is a soldier. But where, in the alisenee
of a soldier competent for the purpose, a civilian tailor is l)y due
authority employed, and an enlisted man of the command incurs, for
work on clothing done ))y such tailor, certain charges according to the
I'ates lixed by the council of administration, lie may legally l)e ordered
to settle the same, and, on refusal, ma}' be made amenable for disolje-
dience of orders under this Article.^ 33, 22, June^ 1889.
28. A soldier detailed to cook for a teamsters' mess, refuse^ for the
reason that the teamsters were civilians. Soldiers had previously been
detailed for this purpose at this post, no provision for a special cook
for the teamsters having been practical )le. IFdd that the refusal was
chargeable as a disobedience of orders under this Article, the teamsters
being regular employees of the military establishment and a con-
stituent of the garrison coumiand. 28, 342, Decemher^ 1888.
29. Where an officer respectfull\' declined to comply with the direc-
tion of his superior to sign the certiticate to a report of target-tiring,
on the ground that the facts set forth in such certiticate were not
within his knowledge, he having been stationed at the butt where he
was not in a position to l)e informed as to such facts — Itdd that he was
not amenal)le to a charge of disobedience of orders under this Article.
XLIX, 224, Jnly, 1885.
30. jrdd that the disobedience, by a cadet private of the Military
Academy, of an order of a cadet lieutenant of his company, the latter
not being a commissioned officer, was not chargeable under this Article*
but was an oHence under Art. 62. LVI, 2Si), July, 1888.
TWENTY-SECOND ARTICLE.
Any officer or soldier who begins, excites, causes, or joins in any mutiny or
sedition, in any troop, l)attery, company, party, post, detachment, or guard, shall
suffer deatli, or such other jiunishment as a court-martial may direct.
31. Mutiny at military law may l)e delined to ))ean unlawful opposing
or resisting of lawful military authority, with intent to subvert the
same, or to nidlify or neutralize it for the time." It is this Intent
which distinguishes mutiny from other oti'ences, and especially from
those, with which, to the embarrassment of the student, it has fre-
' See §. 1220 R. S. and act of INIarch 2, 1889 (25 Stat. 831). See also Circular 8.
A. G. O., 1896, which by construction extends the regulation to include civilian
tailors. See A. K. 29:] of 'l9()l.
-('<)mi)are the delinition and description of mutiny or revolt at maritime law, in
the United States v. Smith, 1 Mason, 147; United States r. Haines, 5 \,\., 272, 276;
United States v. Jvelly, 4 Wash., 528; United States v. Tliomijson, 1 Sunnier, 1(>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 enliste<l man under his command, immediately to arrest
the offender and bring him to trial.
TWENTY -EIGHTH ARTICLE.
Any officer or soldier who upbraids another officer or soldier for refusing a chal-
lenge shall himself be punished as a challenger; and all officers and soldiers are
hereby discharged from any disgrace or opinion of disadvantage which might arise
from their having refused to accept challenges, as they will only have acted in obedi-
ence to the law, and have done their duty as good soldiers who subject themselves
to discipline.
TWENTY-NINTH ARTICLE.
Any officer who thinks himself wronged by the commanding officer of his regiment,
and, upon due application to such commander, is refused redress, may complain to
the general commanding in the State or Territory where such regiment is stationed.
The general shall examine into said complaint and take proper measures for redress-
ing the wrong complained of; and he shall, as soon as possible, transmit to the Depart-
ment of War a true statement of such complaint, with the proceedings had thereon.
36. This Article is expressly confined to cases of alleged wrongs on
the part of regimental commanders. It cannot be extended to apply
to a complaint of wrong done by a post commander who is not also the
commanding oflicer of the regiment of the complainant. LV, 365,
March, 1888.
THIRTIETH ARTICLE.
Any soldier who thinks himself wronged by any officer may complain to the com-
manding officer of his regiment, who shall summon a regimental court-martial for
the doing of justice to the complainant. Either party may appeal from such regi-
mental court-martial to a general court-martial; but if, upon such second hearing,
the ai)peal appears to be groundless and vexatious, the party appealing shall be
punished at the discretion of said general court-martial.
37. This Article is not inconsistent with Art. 83, which prohibits
regimental courts from trying commissioned ofiicers. It does not con-
template or provide for a trial of an officer as an accused, but simply
an investigation and adjustment of some matter in dispute — as, for
example, a question of accountability for public property, of right to
pay or to an allowance, of relief from a stoppage, &c. The regimental
court does not really act as a court but as a board, and the " appeal "
authorized is practically from one board to another.^ But though the
regimental court has no power to find "guilty " or " not guilty/' or to
iSee Macoml), §§ 193, 194; G. O. 13, War Dept., 1843; 1 Opins. At. Gen., 167; Mc-
Naughton's Annotations of the Mutiny Act, p. 86; O'Brien, \^\). 123-129.
30] ARTICLES OF WAR. 19
sentence, it should come to some definite opinion or conclusion— one
sufficiently specific to allow of its being- iiitelligenth' reviewed b}^ the
g-eneral court if desired. XXIII, 631, July. 1867; XXVIII, 113,
August, 1868; XXIX, 227, August, 1869; XXX, 81, Fehruary, 1870;
XXXII, 588, 2fay, 1872.
38. The proceeding- under this Article, not being a trial, is not
aflfected by the limitation of the 103d Article, Due diligence, however,
should be exercised in presenting the complaint, and a delay in a
certain case to do so for three j^ears (not satisfactorily explained),
held unreasonable and properl}^ treated by the court as seriously
prejudicing the complaint. XXXI, 452, Jiuie, 1871.
39. The authorit}^ to summon a regimental court under this Article
is vested in terms in the regimental commander. A department or
other superior commander cannot properly exercise such authority,
nor will his order add to the validit}^ or eft'ect of the proceeding.
XXIX, 227, August, 1869.
40. The court cannot take cognizance of a complaint against an ofiicer
no longer in the service. So, where a company" commander, having
entered on the pay-rolls an unauthorized stoppage against a soldier,
had resigned, and the same stoppage was thereupon continued l)y his
successor: held that the complaint should be presented against the
latter. XXXV, 332, A2)ril, 187]^.
41. "Where the alleged wrong was charged upon certain officers'
servants, and it did not appear that their acts were authorized or
sanctioned by the oflicers who employed them, held that the complaint
was not one which could be taken cognizance of under this Article.
XXIII, 631, July, 1867.
42. There are two manifest and unqualified limitations to the province
of the regimental court underthis Article, viz. — 1. It can not usurp the
place of a court of inquir}-; 2. It can take no cognizance of matters
which it would be beyond the power of the regimental commander to
redress. When the matter is beyond the reach of this conmiander, it is
bej'ond the jurisdiction of this court. If it involve a question of
irregular details, excessive work or duty, wrongful stoppages of pa}^ or
the like, a regimental court under this Article may be resorted to for
the correction of the wrong. Otherwise when the case is one of a
wrong such as can be righted only hj the jpiinishment of the ofiicer.^
^The "regimental court-martial," mider the 30th Article of War, can not be used
aa a substitute for a general court martial or court of inquiry, for it can not try an
othcer nor make an investigation for the purpose of determining whether he shall be
brought to trial. When, if the soldier's complaint should be sustained, the only redress
would be a reprimand to the officer, the matter would not be within the jurisdiction
of this court. It can only investigate such matters as are susceptible of redress by the
doing of justice to the complainant; that is, when in some way he can be set right
20 ARTICLES OF WAR. [80-34
43, 37, 479, September and Novemher, 1890; 47, 214, 2fay, 1891; Card
855, January, 1895.
THIRTY-FIRST ARTICLE.
Any officer or soldier who lies out of his quarters, garrison, or camp, without leave
from his superior officer, shall be punished as a court-martial may direct.
THIRTY-SECOND ARTICLE.
Any soldier who absents himself from his troop, ])attery, company, or detachment,
without leave from his commanding officer, shall be punished as a court-martial may
direct.
THIRTY-THIRD ARTICLE.
Any officer or soldier who fails, except when prevented by sickness or other
necessity, to repair, at the fixed time, to the place of parade, exercise, or other
rendezvous appointed by his commanding officer, or goes from the same, without
leave from his commanding officer, before he is dismissed or relieved, shall be
punished as a court-martial may direct.
THIRTY-FOURTH ARTICLE.
Any soldier who is found one mile from camp, without leave in writing from his
commanding officer, shall be punished as a court-martial may direct.
by putting a stop to the wrongful condition which the officer has caused to exist.
Erroneous stoppages of pay, irregularity of detail, the apparent requirement of more
labor than from other soldiers, and the like, might in this way be investigated and
the wrongful condition put an end to. The court will in such cases record the evi-
dence and its conclusions of fact, and recommend the action to be taken. The mem-
bers of the court (and the judge-advocate) will be sworn faithfully to perform their
duties as members (and judge-advocate) of the court, and the proceedings will be
recorded, as nearly as practical^le, in the same manner as the proceedings of ordinary
courts-martial. ^Manual for Courts-Martial (1901), p. 98, note.
An early instance of an appeal under this article is published in Orders No. 5,
A. G. O., January 20, 1827, as follows:
"I: Under the 35th [now 30th] Article of War, the Commanding Officer at For-
tress Monroe, on the 17th of November, 1826, assembled a regimental court-martial to
examine into a complaint made by INIusician R B against Lieutenant
M of the 2d Artillery, and to do justice to the complainant." The court pro-
nounced the following opinion:
"The court having heard and deliberately weighed the evidence in the case before
them, and also Lieutenant M 's statement, are of the opinion that the accusation
isnotfidbj sustained. * * * In expressing this opinion the court do not find the
occasion warranted the language made use of by Lieutenant M to the accuser,
and the band in general."
Considering himself aggrieved by this "opinion," Lieutenant M "appealed
to a general court-martial."
The court of which Lieutenant Colonel E waspresident, having been instructed
to take cognizance of the case, made the following "decision:"
"The court having reexamined all the witnesses who appeared before the reginiental
court-martial; and having examined such other additional witnesses as were produced
bv the parties, * * * cnvfirm the opinion expressed l)y the regimental court-
nJartial with the exception of the closing words, to wit, 'and the band in general.' "
This decision was " confirmed" by the Major General Commanding the Army.
35-38] ARTICLES OF WAR. 21
THIRTY-FIFTH ARTICLE.
Any soldier who fails to retire to his quarters or tent at the beating of retreat, shall
be punished according to the nature of his offense.
THIRTY-SIXTH ARTICLE.
No soldier l^elonging to any regiment, troop, battery, or company shall hire
another to do his duty for him, or be excused from duty, except in cases of sickness,
disability, or leave of absence. Every such soldier found guilty of hiring his duty,
and the person so hired to do another's duty, shall be punished as a court-martial
may direct.
THIRTY-SEVENTH ARTICLE.
Every noncommissioned officer who connives at such hiring of duty shall be reduced.
Every officer who knows and allows such practices shall be punished as a court-
martial may direct.
THIRTY-EIGHTH ARTICLE. '
Any officer who is found drunk on his guard, party, or other duty, shall l)e dis-
missed from the service. Any soldier who so offends shall suffer such corporal pun-
ishment as a court-martial may direct.
43. Held that a soldier found drunk when on duty was properly
convicted under this Article, though his drunkenness actually com-
menced before he went on the duty; his condition not being- perceived
till some time after he had entered upon the same. While it is in itself
an offence knowingly to allow a soldier to go on duty when under the
influence of intoxicating liquor, yet if a soldier is placed on duty while
partiall}" under this influence but without the fact being detected, and
his drunkenness continues and is discovered while he remains upon
the duty, he is strictl}' amenable under this Article, which prescribes
not that the part}^ shall l>ecome 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, \<l., 1863; do. 27, 64, \d., 1864; G. C. M. O. 90, 114, 272,
279, id., 1864; do. 53, 91, 107, 124, 126, 134, 191, 421, id., 1865.
42-45] ARTICLES OF WAR. 25
war equally as in a foreign or civil war/ VI, 79, April, 186 If,; XI,
274, Decetnher, 186 J^; XLII, 546, March, 1880.
57. The term "his arms or ammunition" does not refer to arms,
&c., which are the personal property of the soldier, but means such as
have been furnished to him by the proper officer for use in the service.^
The term is to be construed in connection with the further similar
expression, "his post or colors." VI, 79, April, 186 Jf..
FORTY-THIRD ARTICLE.
If any commander of any garrison, fortress, or post is compelled, by the officers
and soldiers under his command, to give up to the enemy or to abandon it, the offi-
cers or soldiers so offending shall suffer death, or such other punishment as a court-
martial may direct.
FORTY-FOURTH ARTICLE.
Any person belonging to the armies of the United States who makes known the
watchword to any person not entitled to receive it, according to the rules and dis-
cipline of war, or presumes to give a parole or watchword different from that which
he received, shall suffer death, or such other punishment as a court-martial may
direct.
FORTY-FIFTH ARTICLE.
Whosoever relieves the enemy with money, victuals, or ammunition, or knowingly
harbors or protects an enemy, shall suffer death, or such other punishment as a
court-martial may direct.
58. In view of the general term of description in this and the suc-
ceeding Article — "AVhosoever," it was held, during the war of the
rebellion, by the Judge-Advocate General and by the Secretary of
War,^ and has been held later by the Attorney General,* that civilians^
equally with military persons, were amenable to trial and punishment
by court-martial under either Article.'' II, 498, June^ 1863; V, 291,
Nowmher^ 1863; XI, 215, 454, December^ 186If,^ and February, 1865.
1 See case in G. O. 5, War Dept., 1857, in which a soldier was sentenced to be hung
upon conviction of misliehavior before the enemy on the occasion of a fight with
Indians.
2 See Samuel, 592; Hough (Practice), 336.
' See G. 0. 67, War Dept., 1861; also the following Orders of that Department pub-
lishing and approving sentences of civilians tried and convicted under these Articles: —
G. O. 76, 175, 250, 371, of 1863; do. 51 of 1864; G. C. M. 0. 106, 157, of 1864; do. 260, 671,
of 1865.
* 13 Opins. At. Gen. , 470, 472.
* Admitting this construction to be warranted so far as relates to acts committed on
the theatre of war or within a district under martial law, it is to be noted that it is
the effect of the leading adjudged cases to preclude the exercise of the military juris-
diction over this class of offences, when committed by civilians in places not under
military government or martial law. See, especially, Ex. parte Milligan, 4 Wallace,
2, 121-123; Jones v. Seward, 40 Barb., 563; also other cases cited in note to § 1031,
post.
But the sounder construction is believed to be that, as the Articles of War are a
code enacted for the government of the military establishment, they relate only to
26 AETICLES OF WAR. [45, -16
59. Durino; the war of the rebellion, all inhabitants of insurrectionar}^
States were pr I ma facie enemies in the sense of this and the succeed-
ing Article.^ XIV, 266, March^ 1865. A citizen of an insurgent State
who entered the U. S. militarj' service became of course no longer an
enem3^ So Jield of a lieutenant of the 1st E. Tenn. Cavalry. XXIX,
206, August, 1869.
60. It is no less a relieving an enemy under this Article that the
mone}^, &c., furnished is exchanged for some commodity, as cotton,
valuable to the other party. XII, 385, March, 1865; XIV, 266, March,
1865; 'KYI, ^^Q, Aug mi, 1865.
61. The act of ''relieving the enemy" contemplated by this Article
is distinguished from that of trading with the enemy in violation of the
laws of war; the former being restricted to certain particular forms of
relief, while the latter includes every kind of commercial intercourse
not expressly authorized by the Government. XIV, 266, March, 1865,
See Law of War.
FORTY-SIXTH ARTICLE.
Whosoever holds correspondence with, or gives intelHgence to, the enemy, either
directly or indirectly, shall suffer death, or such other punishment as a court-martial
may direct.
62. Held that the offence of holding correspondence with the enemy
was completed by writing and putting in progress a letter to an inhabit-
ant of an insurrectionary State during the war of the rebellion; it not
being deemed essential to this offence that the letter should reach its
destination.' IV, 370; V, 274, 291; Noveinber, 1863; X, 567, Noveni-
her, 186^.
persons belonging to that establishment, unless a different intent should be expressed
or otherwise made manifest. No such intent is so expressed or made manifest. Per-
sons not belonging to the military establishment may be proceeded against for the
acts mentioned in the Article, but it is by virtue of the power of another jurisdiction,
namely, martial Jaw; and martial law does not owe its existence to legislation but to
necessity. The scope of these Articles under the legislation of 1776, apparently
extending their application to civilians, seems to have become modified on the adop-
tion of the Constitution.
Possibly the 63d Article of War should be construed as making "retainers to the
camp," &c., part of the military forces for the time being. But see the case of B. G.
Harris, M. C. , tried by court martial in 1865. ( H. R. Ex. Doc. 14, 39th C. , 1st S. )
'See the opinion of the U. S. Supreme Court (frequently since reiterated, in sub-
stance), as given byGrier, J., in the " Prize Cases," 2 Black, 635, 666 (1862); and by
Chase, C. J., in the cases of Mrs. Alexander's Cotton, and The Venice, 2 Wallace,
258, 274, 418 (1864). In the latter case the Chief Justice observes: "The rule which
declares that war makes all the citizens or subjects of one belligerent enemies of the
government and of all the citizens or sul)jeets of the other, applies equally to civil
and to international wars." That an insurrectionary State was no less "enemy's
country," though in tlie military occupation of the United States, with a military
governor appointed l)y the President — see opinion by Field J. in Coleman v. Ten-
nessee, 7 Otto, 509, 516-517.
''O'Brien, 147; Hensey's Case, 1 Burrow, 642; Stone's Case, 6 Term, 527; Samuel,
580.
46-48] ARTICLES OF AVAR. 27
63. It is essential, however, to the offence of (living intelligeuee to
the eneni}" that material information should actually be communicated
to him; the communication may be verbal, in writing, or l)y signals.
XIV, 273, 2£arch, 1865.
FORTY-SEVENTH ARTICLE.
Any officer or soldier who, having received pay, or having been duly enlisted in
the service of the United States, deserts the same, shall, in time of war, suffer death,
or such other punishment as a court-martial may direct; and in time of ueace, any
punishment, excepting death, which a court-martial may direct.
See desertion.
FORTY-EIGHTH ARTICLE.
Every soldier who deserts the service of the United States shall be liable to serve
for such period as shall, with the time he may have served i^revious to his desertion,
amount to the full term of his enlistment; and such soldier shall be tried by a court-
martial and punished, although the term of his enlistment may have elapsed previous
to his being apprehended and tried.
64. The liability to make good to the United States the time lost by
desertion, enjoined by the first clause of this Article, is independent
of any puniskment which may be imposed by a court martial, on con-
viction of the offence: it need not, therefore, be adjudged or mentioned
in terms in a sentence.^ L, 413, June., 1886. If the sentence is disap-
proved, the legal status of the accused is the same as if he had been
acquitted, and the obligation of additional service is not incurred.
XXVI, 568, June., 1868. The effect of such disapproval is to remove
from his record the charge of desertion, but if the fact of unauthorized
absence from the service is duly shown by the muster rolls, he is,
independenth^ of the result of his trial, not entitled to pay during the
period of such absence. 36, 303, November, 1889.
65. Where a deserter was sentenced to imprisonment for the "bal-
ance of his term " and had undergone such punishment, held that he
was not absolved from the obligation to make good time lost; the
words '"l)alance of his term" referring to the balance of the term
of his original enlistment. XI, 615, 680, Ajyril, 1865; XXVII, 439,
Decemher, 1868.
66. The time passed By a deserter in confinement under sentence
cannot be computed as a part of the period required by the Article to
be made good to the United States, such time not being a time of
military service, l)ut of punishment. XXX, 506, July., 1870; XXXI,
275, 374, March and May, 1871. Nor can the period of confinement
1 See G. O. 21, Dept. of the Lakes, 1873; do. 94, Dept. of the Missouri, 1867; G. C. M.
O. 74, Dept. of the East, 1873. The old ruling contra (see G. 0. 26, 45, Hdqrs. of
Army, 1843) may be regarded as abandoned in our law and practice.
28 ARTICLES OF WAR. [48
be credited where the sentence i.s remitted before it is fully executed.
XXIV, 30, Novemhei\ 1860. So, time pa^s.sed by the deserter in arrest
or conlinement (or in hospital) while awaiting trial or action upon
his sentence, cannot be so computed. XII, 336, February^ 1865.
67. The enforcement of the liability, where enforced at all, is gen-
erally postponed till after the execution of the punishment (if any)
imposed upon the deserter by his sentence. A deserter may still be
required to make good the time included in his unauthorized absence
from the service, although his term of enlistment has expired pending
a term of confinement adjudged him by court martial on conviction of
his offence, provided he has not been discharged. XXXII, 40,
Octoher, 1871.
68. The United States may vMwe the liability imposed by the first
clause of the Article. It is in fact waived where the deserter, without
being required to perform the service, is discTiarged by one of the offi-
cials authorized by Art. 4 to discharge soldiers. So it is waived where
the soldier is adjudged to be dishonorabl}' discharged b}" sentence of
court martial, and this punishment is duly approved and thereupon
executed. XXIX, 507, Decemher, 1869; XXX, 506, July, 1870;
XXXVII, 416, Marcli., 1876. Nor does a deserter who has been duly
discharged from the service remain amenable to trial under the last
clause of this article. XXXI, 48, Novemher, 1870.
69. The liability to trial and punishment imposed l)y the second
clause of the Article is subject to the limitation of prosecutions pre-
scribed by Art. 103.^ XXXI, 384, May, 1871.
70. The contract of enlistment is for military service for a term of
years and when interrupted by the soldier's desertion remains incom-
plete and subject to specific performance. While some authorities
hold that the obligation to make good time lost by desertion attaches
only upon conviction,^ the weight of authority and the practice are to
the effect that the punishment for desertion and the o])ligation to
complete the contract of enlistment are separate and distinct, and that
the restoration of a deserter to dutj^ without trial does not relieve him
from the obligation to complete his contract. LIII, 276, April., 1887 ;
26, 487, Sej)teriibe)\ 1888. This obligation continues though the statute
of limitation has taken effect in his case, or has been successfully
pleaded in bar on a trial b}' court-martial. XXXVII, 416, March^
1876; 40, 69, 2£((reh, 1890.
71. The restoration of a deserter to duty without trial is practically
a pardon before conviction; it is termed by some military writers "a
constructive pardon,"'' and is a valid plea in bar of trial for desertion.
'This opinion is clearly applicable to the 103d Article as amended by the act of
April 11, 1890, its present form.
M5()pins. At. (ien., 152; Hi id. 170.
^ 1 Winthrop, 880.
48-50] ARTICLES OF WAR. 29
As all pardons proceed upon the hypothesis of the legal guilt of the
person pardoned, the restoration of a deserter to duty without trial
presupposes the commission of desertion. A pardon, like a deed,
must, in order to take effect, be deliyered to, and accepted by the
party to whom it is granted. In military cases the acceptance is com-
monly indicated by the soldier yoluntarily submitting to the proceed-
ing or performing the act required as a condition. This acceptance
of, or submission to, the restoration to duty without trial is yirtually
a confession of his guilt; his desertion thus becomes an established
fact, as much as if he had been tried and convicted.^ 21, 223, Decem-
lei\ 1887.
72. Time lost by desertion must be made good by a deserter who
accepts or submits to restoration to duty without trial, though the
order directing such restoration fails to impose the same as a condi-
tion, the authority invested by the regulations with the right to
restore deserters to duty without trial being without power to waiye
in such restorations the condition to make good the time lost. 26,
487, Se2)temhei\ 1888.
FORTY-NINTH ARTICLE.
Any officer who, having tendered his resignation, quits his post or proper duties,
without leave, and with intent to remain permanently absent therefrom, prior to due
notice of the acceptance of the same, shall l)e deemed and punished as a deserter.
FIFTIETH ARTICLE.
No non-commissioned officer or soldier shall enlist himself in any other regiment,
troop, or company, without a regular discharge from the regiment, troop, or com-
pany in which he last served, on a penalty of being reputed a deserter, and suffering
accordingly. And in case any officer shall knowingly receive and entertain such
non-commissioned officer or soldier, or shall not, after his being discovered to be a
deserter, immediately confine him and give notice thereof to the corps in which he
last served, the said officer shall, by a court-martial, be cashiered.
73. This Article, in its first clause, does not create a specific offence,
or a particular kind of desertion, or an offence distinct from the deser-
tion made punishable in the 47th Article, but declares in effect that
a soldier who abandons his regiment, etc., shall be deemed none the less
a deserter although he may forthwith re-enlist in a new regiment. It
does not render the act of re-enlistment a desertion, but simply makes
the re-enlistment, under the circumstances indicated, lyrima facie
evidence of ;: desertion from the previous enlistment from which the
soldier has not been discharged, or, more accurately, evidence of an
intent not to return to the same." The object of the provision, as it
' See Circ. 4, A. G 0., 1884, A. R. 132 of 1895, and A. R. 143 of 1901.
*See the similar view expressed in G. C. M. O. 129, Dept. of the Missouri, 1872;
do. 77, \d., 1874.
30 AETICLES OF WAE. [50, 51
orioiiially appears in the British code, apparently was to preclude the
notion, that might otherwise have been entertained, that a soldier
would be excused from repudiating or departing from his original
contract of enlistment, provided he presently renewed his obligation
in a different portion of the military force. ^ XLII, 642, May^ 1880;
7, 298, SeptemJ>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, An<iud, 186^; XVIII, 161. Sej>tember, 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/x</'tf??6 brigade," and was therefore not authorized to
order a general court martial. Ill, 516, August^ 1863.
193. IL'Jd, prior to August 31, 1861 (the date of the general order
specitied in the following section), that where a command, not attached
to a division but occupying a separate post or district, or operating
separateh' in the field, was made up of regiments or parts of regiments
sufficient to compose a brigade, and such as were commonly or might
properly be organized into a brigade command, the same might in gen-
eral be viewed as constituting a "separate brigade" in the sense of this
Article, /. e. so far as to empower its commander to convene a general
court martial. VI, 250, August., 1861^.; X, 53, 106, July and August.^
1861f.; XIII, 29, Decemher, 1861^.. But where a certain post command
consisted of but one regiment of infantry with three batteries of artil-
lery, held that it could scarcely be regarded as a separate brigade within
the meaning of the statute. X, 106, supra.
194. On August 31, 1861, was issued from the War Department a
general order — No. 251 of that year — which directed as follows:
"Where a post or district command is composed of mixed troops,
equivalent to a brigade, the commanding officer of the department or
Armj'^ will designate it in orders as ''a separate hrigade,'' and a copy of
such order will accompany the proceedings of any general court mar-
tial convened b}^ such brigade commander. Without such authority,
commanders of posts and districts having no brigade organization
will not convene general courts martial." Under this order, which
was applied mainl}^ to the commands designated in the war of the
rebellion as "Districts," it was held by the Judge-Advocate General
as follows: — That the fact that a district command was composed not
of regiments but of detachments merely (which, however, in the num-
ber of the troops, were equal to or exceeded two regiments,) did not
preclude its being designated as a "separate brigade," and that when
so designated, its commander had the same authorit}^ to convene gen-
eral courts martial as he would have if the command had the regu-
16906—01 5
66 ARTICLES OF WAR. [73
lur statutory brigade organization (XI, 110, Wovemher, 1864); that
tboug-h a district connnand embraced a force considerably greater
than that of a ])rigade as cpmmonl}' constituted, yet if not designated
by the proper authority as a " separate brigade," its commander would
be withovit authority to con'^-ene general courts martial, unless indeed
his command constituted a separate "armj'" in the sense of the 65th
(now 72d) Article (XIII, 340, Fehnumj, is65); that it was not abso-
lutely necessary, to give validit}' to the proceedings or sentence of
a general court martial convened by the commander of a separate
brigade, that the command should be described as a separate brigade
in the caption or superscription of the order convening the court
and prefixed to the record, or even that a cop}^ of the order desig-
nating the command as a separate brigade should accompany the
proceedings. As to the latter feature, the order of 1861 is viewed
as directory merely. And though not to accompanj^ the record
with a copy of the order thus constituting the command would be
a serious irregularity, as would be also — though a less serious one —
the omission of the proper formal description of the command from
the convening order, yet if the command had actuall}^ been duly des-
ignated, and in fact was, a separate brigade, and this fact existed of
record and could be verified from the official records of the department
or army, the omission of either of these particulars, though a culpable
and embarrassing neglect on the part of the court or judge advocate,
would not, j>t^>' 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<lie irregularity involved may in general be remedied as indicated
in the text. And see § 284, yoit. V>\\\ 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 comriiutin<j it to confine-
ment in a military prison, or to some other punishment which would
be legal for such offence. '^ XXIV, 202, January, 1867; XXVII, 299,
Octoher, 1868; XXX, 603, August, 1870; Card 439, Octoher, 18H.
Nor, in a case of such an offence, can a severer penalty — as death — be
commuted to confinement in a penitentiary, XI, 413, February^ 1865.
290. Nor can penitentiary confinement l)e legalized as a punishment
for purcl}' military offences l)y designating a penitentiary as a ''mili-
tary prison," and ordering the confinement there of soldiers sentenced
to imprisonment on conviction of such offences. XXXV, 377, May,
187^: XXXIX, 659, Scpteinhti; 1878.
291. An offence duly charged as "Conduct to the prejudice of good
order and militar}" discipline," or as a violation of the 60th Article of
War, which, however, is in fact a larceny,^ embezzlement, violent
crime, or other offence made punishable with penitentiary confinement
by the law of the State, &c., may legally be visited with this punish-
ment. IX, 281, January, 1864; 28, 302, JVovemJjer, 1888.
292. The term "penitentiary," as employed in this Article, has
reference to civil prisons only — as the penitentiary of the United
States or District of Columbia at Washington, the public prisons or
penitentiaries of the different States, and the penitentiaries "erected
by the United States" (see Sec. 1892, Rev. Sts.) in most of the Ter-
ritories.* The term State or State'' s prison in a sentence is equivalent
to penitent ia/'y. IX, 70, May, 1864-
293. A militar}^ prisoner duly sentenced or committed to a peniten-
tiar}', becomes subject to the government and rules of the institution,
XXIX, 296, Septemher, 1869.
294. A court martial, in imposing by its sentence the punishment of
confinement in a penitentiary, is not required to follow the statute of
the United States or of the State, &c., as to the term of the confine-
^See G. O. 4, War Dept., 18()7; also the action taken in cases in the following Gen-
eral Orders: G. O. 21, Dept. of the Platte, 1866; do. 21, Id., 1871; do. 44, Eighth Army
Corps, 1862; G. C. M. 0. 34, 35, 43, 46, 72, 73, Dept. of the Missouri, 187U.
*But see Par. 940, A. R, as amended by G. O. 3, A. G. O., 1901 ( 1041 of 1901).
^In a case of larceny, the court should" inform itself as to whether the rahie of the
property stolen be not too small to ]iermit of penitentiary con tinemeut for the offence
under the local law. See G. C). 44, Eighth Army Corps, 1862; G. C. M. O. 63, Dept.
of the Platte, 1872.
*See pars. 940 and 941, A. K. (1041 and 1042 of 1901).
97] ARTICLES OF WAR. 89
ment. It maj^ adjudge, at its discretion, except as provided in the
58th Article of War, a less or a greater term than that affixed b}- such
statute to the particular olience. At the same time the court will
often do well to consult the statute, as indicating a reasonable meas-
ure of punishment for the offence. XXVIII, 24:7, JVovemher, 1868.
295. Where a court martial specifically sentences an accused to con-
finement in a ''military prison," he cannot legally be committed to a
penitentiar}', although such form of imprisonment would be author-
ized by the character of his oft'ence. XXIX, 250, Sejjtemher, 1869.
But where a sentence of confinement is expressed in general terms, as
where it directs that the accused shall be confined "in such place or
prison as the proper authority ma}" order,"' or in terms to such efl'ect,
JieJd that the same may, under this Article, legall}^ be executed by the
commitment of the party to a j^enitentiary., to be designated by the
reviewing officer or Secretary of War, provided of course the offence
is of such a nature as to warrant this form of punishment. XLI, 664,
Angust, 1879; XLII, 218, Mirch, 1879.
296. Held that penitentiary confinement could not legally be adjudged
upon a conviction of a violation of the 21 st Article, alleged in the
specification to have consisted in the lifting up of a weapon (a pistol)
against a commanding" officer and discharging it at him with intent to
kill. By charging the oft'ence under this Article, the Government
elected to treat it as a purely military oft'ence subject onl}' to a military
punishment. 35, 141, Sepfemher, 1889; Q^, 385, Aj)ril, 1891^. So,
upon a conviction of joining in a mutiny, in violation of Art. 22,
Juld that a sentence of confinement in a penitentiary would not be
legal although the mutiny involved a homicide, set forth in the speci-
fication as an incidental aggravating circumstance. 26, 284, Sej)tem.-
her, 1888. To have warranted such a punishment in either of these
cases the Government should have treated the act as a '"crime,"
and charged and brought it to trial, as such, under Art. '6'2.
297. Where the act is charged as a crime under Art. 62, and charge
and specification taken together show an oft'ence punishable with con-
finement in a penitentiary by the law of the locus of the crime, the
sentence may legally adjudge such a punishment. So held — in a case
where charge and specification together made out an allegation of per-
jury under Sec. 5392, Kev. Sts. 26, 497, Septemler, 1888.
298. "Obtaining money under false pretenses" is punishable by con-
finement in a penitentiary by the laws of Arizona. A sentence of court-
martial, imposing this punishment, on conviction of an oft'ence of this
description committed in this Territory, charged as a crime under Art.
62. held authorized by Art. 97. 31, 117, J/r//r/^ 1889.
299. A punishment of confinement in a penitentiary, where legal, may
90 ARTICLES OF WAR. [97-101
be mitigated to ccniinenioiit in u military prison or at a militar}^ post.
29, 2(»lt, January, 1889.
300. A discharged soldier, serving a sentence of confinement in a
State or Territorial penitentiary, still remains under military control,
at least so far that his sentence may, by competent military authority,
or b}' the President, be remitted, or may be mitigated — as for example
to confinement in a military prison or at a military post. 17, 216, Jan-
uary, 1887; 29, 209; January, 1889; 63, 370, February, 189 J^.
NINETY-EIGHTH ARTICLE.
No person in the military service shall be punished l)y flogging, or by branding,
marking, or tattooing on the body.
NINETY -NINTH ARTICLE.
No officer shall be discharged or dismissed from the service, except by order of the
President, or by sentence of a general court-martial; and in time of peace no officer
shall be dismissed, except in pursuance of the sentence of a court martial, or in miti-
gation thereof.
ONE HUNDREDTH ARTICLE.
When an officer is dismissed from the service for cowardice or fraud, the sentence
shall further direct that the crime, punishment, name, and place of abode of the
delinciuent shall be published in the newspapers in and about the camp, and in the
State from which the offender came, or where he usually resides; and after such
publication it shall be scandalous for an officer to associate with him.
301. The terms '■^ cowardice''^ and '\fraucl,''^ employed in this Article,
may ))e considered as referring mainly to the ofiences made punishable
b}- Articles 1-2 and 60. With these, however, may be regarded as
included all offences in which fraud or cowardice is necessarily invol'ved^
though the same be not expressed in terms in the charge or specifica-
tion. XI, 671, Ajyrll, 1865.
302. Though the injunction of the Article, as to the direction to be
added in the sentence, should of course regularly be complied with, a
failure so to comply will not affect the validity of the punishment of
dismissal adj\idged by the sentence.^ XXII, 508, December, 1866;
XXVII, 652, May, 1869.
ONE HUNDRED AND FIRST ARTICLE.
AVhen a court martial suspends an officer from command, it may also suspend his
pay and emoluments for the same time, according to the nature of his offence.
See suspension.
^Note the action taken in the case published in G. C. M. O. 27, War Dept., 1S72.
The declaration of the Article, that after the publication, "it shall be scandalous for
an officer to associate with " the dismissed officer, though it has, as in cases pub-
lished in G. O. (A. <fe I. G. O.) of May 13, 1820, and G.0. 1(58, Dept. of the Missouri,
1865, been incorporated in the sentence, is not intended to be, and should not be so
incorporated.
102] ARTICLES OF WAR. 91
ONE HUNDRED AND SECOND ARTICLE.
No person shall be tried a second time for the same offence.
303. The Constitution (Art. V of the Amendments) declares that
" no person shall be subjected, for the same offence, to be twice put
in jeopardy of life or limb." The.U. S. courts, in treating- the term
" put in jeopardy"' as meaning practicall}" trled^ hold that the' * jeopardy "
indicated "can be interpreted to mean nothing short of the acquittal
or conviction of the prisoner and the judgment of the court thereon."^
So, lield that the term "'tried,'" emplo^^ed in this Article, meant duly
prosecided^ hefore a court-martkd^ to a final conviction or acquitted;
and, therefore, that an officer or soldier, after having been duly con-
victed or acquitted by such a court, could not l)e subjected to a second
military trial for the same offence, except by and upon his own waiver
and consent. That the accused may icaire objection to a second
trial was held by Attorney General Writ in 1818," and has since been
regarded as settled law. V, 172, Octoher^ 1S6S; Card 5766, Jan uary,
1899; VI, 62, and VIII, 37, Ifarch, 1861^.
304. Where an officer or soldier has been duly acquitted or convicted
of a specific offence, he cannot, against his consent, be brought to trial
for a minor offence included therein, and an acquittal or conviction of
which was necessarily involved in the finding upon the original charge.
Thus a party convicted or acquitted of a desertion cannot afterwards
be brought to trial for an absence without leave committed in and by
the same act. See §§ 10!>3 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, 1<S6S; XIX, 318, Janu-
ary, 1866; XXI, 12, Novemher, 1865; XXXI, 499, July, 1871;
XXXVII, 106, Novemher, 1875. The fact that the applicant is a mem-
ber of the family of the accused does not entitle him to the copy in
the absence of evidence that he applies at the instance or in behalf of
the accused. Ill, 348, August, 1863. A party applying in l)ehalf of
"friends and creditors'" of the accused, held not entitled to a copy of
the record of his trial. XXI, 583, August, 1866. So held of one who
subscribed his application merely as "attorney at law," without show-
ing that he was authorized to act for the accused. XIX, 459, JfarcJi,
1866.
361. Applications for copies under this Article may be, and in prac-
tice commonly are, addressed in the tirst instance to the Judge- Advocate
General,^ who thereupon furnishes the copy, certified b}^ him as cor-
rect, at the expense of the United States, provided the application is
made b}" the accused or in his l)ehalf. If not, he can furnish the copy
only by the special authority of the Secretary of War. Any person
desiring a cop}^ of the record of a court martial, or of any portion of a
record, who is not entitled to l)e furnished with the same l)y the terms of
this Article, should apply therefor to the Secretary of War, stating- the
reason for his applicatioji, in order that it may appear that he makes
the same in good faith and for a proper purpose. If the application is
^See A. R., 894 (995 of 1901), and par. 2, p. 69, Manual for Courts-Martial (1901).
114, 115] ARTICLES OF WAR. 105
approved by the Secretary, it will be referred to tiie eTudg-e -Advocate
General, who will then have the copy prepared and transmitted. XIX,
635, May, 1866; XXXI, 499, JnIi/\ 1871; XXXVII. 106, N<weml>er,
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,
<inte. Such copies, however, are rarely accorded, except for use under
Art. 121. I, 427, Nommler, 1862; XLV, 158, February, 1882.
365. This Article does not authorize the furnishing of a copy of
the record of trial to the widow of the accused or other person apply-
ing after his decease. LVI, 17, March, 1888; 25, 188, June, 1888.
ONE HUNDRED AND FIFTEENTH ARTICLE.
A court of inquiry, to examine into the nature of any transaction of, or accusation
or imputation against, any officer or soldier, may be ordered by the President or by
any commanding officer; but, as courts of inquiry maybe perverted to dishonorable
purposes, and may be employed, in the hands of weak and envious commandants, as
engines for the destruction of military merit, they shall never be ordered by any com-
manding officer except upon a demand by the officer or soldier whose conduct is to
be inquired of.
366. This Article authorizes the institution of a court of inquiry^
only in a case of an "officer or soldier," and the word "officer," as
employed in the Articles, is defined, by Sec. 1342, Rev. Sts., to mean
commissioned officer. A couil of inquiry cannot therefore ])e con-
vened on the application, or in a case, of a person who is not an officer
^A court of inquiry is not a court in the legal pense of the term, Ijut rather a council,
commission, or board of investigation. It does not administer justice; no plea or
specific issue is presented to it for trial ; its proceedings are not a trial of guilt or inno-
cence; it does not come to a verdict or pass a sentence. For purposes of in\-estiga-
tion, however, a court of iiKjuiry in this country is clothed with ample powers, and,
in an important case, its opinion may be scarcely less significant and even final than
that of a military court proper, that is to say a court martial. I Winthrop's Military
Law and Precedents, Ch. XXIV.
106 ARTICLES OF WAR. [115-117
(or soldier) of the army at the time. Such a court cannot he ordered
to investigate transactions of, or charges against, a party who, by dis-
missal, discharge, resignation, &c., has become separated from the
militar}" service, although such transactions, or charges, relate alto-
gether to his acts or conduct while in the army. I, 395, 402, JTovem-
her, 1862; XIX, 71, October, 1865; XXVII, QOl, April, 1869; XXXIX,
619, Augu.sf, 1878; XLI, 263, June, 1878. A court of inquiry cannot
be ordered in a case of an ""acting assistant surgeon,'' who is not an
officer of the army but only a civil employee. XXXVIII, 210,
August, 1876.
367. A court of inquiry should not in general be ordered by an infe-
rior — post or regimental — commander, where the charges required to
be investigated are not such as an inferior court martial could legally
take cognizance of. Courts of inquiry convened by such commanders
are, however, of rare occurrence in our service. XXXII, 163,
Decemher, 1871; XXXV, 562, September, 187Jf.
368. Though a court of inquiry has sometimes been compared to a
grand jury, there is little substantial resemblance between the two
bodies. The accused appears and examines witnesses before such a
court as freely as before a court-martial (see Art. 118), and its pro-
ceedings are not required to be secret but may be open at the discretion
of the court. ^ XXVIII, 586, May, 1869.
ONE HUNDRED AND SIXTEENTH ARTICLE.
A court of inquiry shall consist of one or more officers, not exceeding three, and a
recorder, to reduce the proceedings and evidence to writing.
ONE HUNDRED AND SEVENTEENTH ARTICLE.
The recorder of a court of inquiry shall administer to the members the following-
oath: "You shall well and truly examine and inquire, according to the evidence, into
the matter now before you, without partiality, favor, affection, prejudice, or hope of
reward. So help you God." After which the president of the court shall administer
to the recorder the following oath: "You, A B, do swear that you will, according to
your best abilities, accurately and impartially record the proceedings of the court and
the evidence to be given in the case in hearing. So help you God."
^ Although neither Art. 88, or other provision of the code, specifically authorizes
the challenging of the members of a court of inquiry, yet, in the interests of justice
and by the usage of the service in this country, this proceeding is permitted in the
same manner as before courts-martial. Art. 117 recjuires that members of courts of
inquiry shall be sworn "well and truly to examine and intjuire, according to the
evidence, without partiality, prejudice," <S:c. ; and it is the sense of the service that
their competency so to <1() should l)e liable to be tried by the same tests as in a case
of a court martial. See Macoml), § 204; O'Brien, 292; l)e Hart, 278. In the Joint
Resolution of Congress of Feb. 13, 1874, authorizing the President to convene a cer-
tain special court of inquiry, it was "provided that the accused may be allowed the
same right of cliallenge as allowed by law in trials by court-martial." It appears,
however, to have been regarded in the deloate on this Resolution (see Cong. Rec,
vol.2, Nos. 38, 40) that this ]>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 authorize<l by the head of tlie Dei)art-
ment prior to incurring the expenses. 1 Comp. Dec, 566; 2 id., 1. An appropria-
tion will not he construed as for "contingent expenses" unless so designated. 5 Id., 7.
-Concurred in by the Comptroller of the Treasury under date of Aug. 31, 1899. 6
Comp. Dec, 177. ,
APPROPRIATIOISr. 131
riages, held that the Secretary of War was authorized to transfer this
amount for disbursement to the disbursing officer at Watervliet Arsenal
where the models were to be manufactured, instead of leaving the dis-
bursement to the disbursing officer at West Point. 60, 498, July^ 1893,
458. Where it was proposed to transfer to tlfe Quartermaster
Department of the Army five mules purchased from an appropriation
for river and harbor improvements, held^ that such a transfer would
not be a sale and could legally be made.^ Card 3670, January,, 1898.
459. AYhere legitimate accounts were presented to the War Depart-
ment which would properly be payable out of an appropriation which
had been fully expended, held that the same should be transmitted to
the Treasury Department as "claims to be certified to be due by the
accounting officers under appropriations the balances of which have
been exhausted or carried to the surplus fund, * * * and certified
to Congress," as indicated in s. 3, act of Juh' 7, 1884, c. 334. They
could then be appropriated for in a deficiency act and thus paid.
62, 3S9, ^^ov€mher, 1893.
460. Where the payment of the extra-duty pay to enlisted men,
authorized by Sec. 1287, Rev. Sts. , was omitted to be appropriated for
in a certain fiscal ,year, advised that the services of the men bo accepted
under the express understanding that their payment depended upon
Congress, and that their rendition of the. service would not give them
any claim upon the United States, unless Congress should appropriate
for such pajMuent. LV, 43, Sej)temhei'., 1886.
461. Held that the provision of the act of March 3, 1893, making
appropriation for monuments and tablets at Gettysburg did not repeal
or supersede the act of March 3, 1873, donating condemned cannon
&c., to the Gettj^sburg Battlefield Memorial Association. 61, 94,
Augmt, 1894.
462. The appropriation in the Army Appropriation Act of Febru-
ary 27, 1893, for — " regular supplies of the quartermaster department,
consisting of * * * fuel and lights for enlisted men, guards, hos-
pitals, storehouses and offices, and for sale to officers" — held, so far as
concerns lights and officers, to include any such lights or material for
lighting as may be saleable to officers, and therefore to be applicable
for the production and furnishing of gas, to be paid for b}" officers at
a cost covering expenses. This appropriation for "fuel and lights"
is first found in the Arnn^ Appropriation Act of 1881, and, originating
thus recently, may be deemed to contemplate gas as a material for
lighting equally with the more primitive methods. 64, 470, May, 1894.
463. The appropriation act for the Military Academy for 1871,
iSee pars. 616, 671, A. R. (698, 7o3 of 1901), and 3 Coinp. Dec, 602.
132 APPROPRIATION.
made an appropriation of one thousand dollars as salary of the libra-
rian's assistant, "while the office is hold by the present incumbent."
After 1871 the words quoted were omitted from the annual appropria-
tion. Ildcl^ that, by this omission the restriction was discontinued and
that the salary co*uld legally be paid to a person other than the incum-
bent in ISTl, who had recently deceased. 64, 118, 2[areh^ 189Jf.
464. In the act making appropriations for the support of the Army
for the fiscal year ending June 30, 1881, it was provided "that civilian
employes of the Army stationed at military posts may under regula-
tions to be made by the Secretary of War, purchase necessar}^ medical
supplies prescribed by a medical officer of the Army at cost with ten
per centum added." The next Army Appropriation Act omitted this
provision, but it was held that the same, though in the form of a proviso,
was in fact general and permanent legislation.^ 4, 150, Angud, ISSIf..
465. The Sundry Civil Act of July 1, 1898, appropriated a specified
amount for lighting 20 arc lights in the Executive Mansion Grounds
and Monument Park 365 nights at not exceeding 25 cents per light per
night, which amount should cover the entire cost of lighting and
maintaining said lights. Ileld^ that the cost of necessary excavations
for and extension of underground conduits to carr}^ the current for the
new lights would be a proper charge against this appropriation. Card
1611, Jidy, 1898.
466. No part of an appropriation which has been made for the erec-
tion of a public building can legally be used in the purchase of furniture
therefor, except such in the nature of fixtures as may be considered a
part of the building itself and necessar}- to complete it for the purposes
stated in the appropriation act.^ Card 3011, March., 1899.
467. There is no authority of law for the expenditure of money by
the L^nited States on a roadway over which it has no right of way or
easement. Card 2722, Novemher.^ 1896.
468. The expenditure of an unexpended balance of an appropriation
not "made specifically for the service of any fiscal year" {Sec. 3690,
Rev. Sts.) is not rendered illegal l)y the lapse of time. Card 1066,
April, 1898.
469. On an application made to the Secretary of War by the com-
missioners of Sheridan County, Wyoming, for an appropriation from
the transportation fund of the army, of $2,000.00, to be expended
by said county through the commissioners thereof, to assist individ-
uals in the construction of a wagon road across the Big Horn range of
'See Army Appropriation Act for fiscal year ending June 30, 1866 (13 Stat., 497),
in which pale of tobacco to enlisted men and sale of stores to officers on credit are
similarly authorized; and 14 Opins. At. Gen., 681.
'■'See 3 Conij). Dec;., 134.
APPROPRIATION. 133
mountain.s, it appearing that the road would facilitate military opera-
tions ill tliat region — held, that a .special act of Congress appropriat-
ing funds for this work would be necessary, the appropriations of the
Quartermaster's Department not being available for the purpose. Card
26, Jnhj. 189^.
470. Property can not lie leased by the Government unless there has
been an appropriation to pay the rental; and where an existing appro-
priation has been "extended" by Congress such extension would
authorize a lease only during the period of the extension. Card 195,
Ampid, 1S94.
471. The act of Congress of March 3, 1897, making appropriations
for fortifications, &c., contained an appropriation of $75,000.00 "for
construction of a riprap wall for protection of United States lands at
Sandy Hook, New Jersey." Jleld, that under Sec. 355, Rev. Sts., the
expenditure of this appropriation could not legall}" be made before
jurisdiction over said lands had been ceded b}" the State of New Jersey
to the United States. Card 30f36, April, 1897.
472. Sec. 3678, R. S., prohibits the use of mone}^ for any purpose
other than that for which it was appropriated. Card 3721, Novem-
her, 1897. Thus held that the expense of fencing a tract of land, the
property of the United States, intended for fortification purposes,
would not be a legal charge against the appropriation for river and
harbor improvements. Cavd 726, 'Ja n xari/, 189r5. Also where a speci-
fied amount was appropriated for "shelling or otherwise improving
to completion," a specified road, between two places named, held, that
the appropriation could not legall}' be applied to the construction of
an entirely different road from that referred to and contemplated by
the act. Card 3635, Novemler, 1897.
473. In the Army Appropriation Act of February 27, 1893, continued
by joint resolution of June 29, 189-1, under the head, arm}' trans-
portation, money was expressly appropriated for constructing roads
and wharves. Held, therefore, that the expense of repairing a crib
dock and approach thereto belonging to the Government on the Fort
Wayne Military Reservation, and used for militar}-^ purposes, would be
a proper charge against the said appropriation for army transporta-
tion. Card 70, July, 189Jf.
474. The Arm}' Appropriation Act, approved August (i, 1894, fixed
the numl)er of clerks and messengers to be employed in a number of
given offices, appropriated for their payment and provided that they
were to be employed and apportioned to the several headquarters and
stations by the Secretary of War. The number was 125 clerks and 45
messengers. Two clerks in excess of the authorized number were
134 APPROPRIATION.
employed for a short time. Ileld^ that the act appropriating salaries
for the 125 clerks amounted to a provision of. law that no more than
that number should ])e employed on the work specified in the act, and
hence prohibited the employment or payment of the two extra clerks.
Card 295. Sqjtemher, ISOJ^.
475. Where the United States owns and has exclusive jurisdiction
over a military reservation, subject to a right of way through the same
of a public highway — Jield^ that the expense of repairing such high-
way would be a legal charge against the funds pertaining to the gen-
eral appropriation for arm}' transportation of the Quartermaster's
Department, provided the repair would be usefid for military pur-
poses. Card 3083. Noveiaher^ 1897.
476. Held., that telegrams sent and received by those engaged in
recruiting organizations of the volunteer army of the United States,
and which related to such recruiting, are official and may be paid for
as telegrams sent and received in carr3"ing on such official lousiness
of the Government, out of the appropriation in the Quartermaster's
Department made for that purpose, and at the rates fixed for other
official telegrams. Card 4670, July., 1898.
477. Held, that telegrams containing applications for leaves of
absence, for extension of same and inquiries as to whether the}' have
been granted, independently of any regulation on the subject, are not
"telegrams on official business" within the meaning of the act making
an appropriation for payment of "cost of telegrams on official busi-
ness," and can not therefore be paid for from that appropriation.*
Card 6935, Septembtv, 1899.
478. JIdd., that the act of Congress making an appropriation for the
" relief of the people of Alaska" and providing that the supplies should
be purchased and the relief furnished under the direction of the War
Department did not authorize the use of the appropriation to reimburse
private parties for relief furnished by them prior to the passage of the
^ Referring to this case the Comptroller under date of October 27, 1899, said ( 6 Conip.
Dec, 422) : " It requires no argument to show that leaves are granted for the benefit
of the persons and that any cost relating thereto should not be borne by the United
States. I have to advise * * * that said telegrams should not be paid for l)y the
United States."
Where a Brigade Surgeon, U, S. Y., in charge of a hospital at Philadelphia, Penn-
sylvania, sent certain telegrams with a view to obtaining leaves of absence for officers
in said hospital who were convalescent to enable them to go to their homes and thus
relieve the hospital of their care and enaV)le it to retain accommodations for otiiers
of the sick who might 1)6 sent there for treatment, the Secretary of A\'ar, under date
of November 1 7, 1899, said: "The sending of such telegrams under the circumstances
is viewed as not only an official act performed in pursuance of duty but as also in the
interests of the military service, and is not regarded as subject to the provisions of
Par. 1209, A. R., which are held as applying to applications for personal leaves and
therefore does not come within the scope of the opinion of tlie Comptroller of the
Treasury and the Judge-Advocate General of the Army."
APPROPRIATION. 135
act/ Cards 6078, March, 1899; 7344, November, 1899; 7483, Janu-
ary, 1900.
479. By act of Congress approved Jul}' 8, 1898, $200,000 was
appropriated "to enable the Secretary of War, in his discretion, to
cause to be transported to their homes the remains of officers and
soldiers who die at militar}^ camps or who are killed in action or who
die in the field at places outside of the limits of the United States."
Held, that the appropriation could be used for providing- metallic
caskets and other expenses incident to disinterring the remains and
preparing them for shipment as well as for transportation proper, as
such expenses are necessary and proper to their transportation. But
further held, that the act did not appl}^ where the deceased officer or
soldier died within the limits of the United States.^ Card 4808,
August, 1898.
480. Where the collectors of customs (army officers) under the mili-
tary government in Porto Rico were required to transfer a portion
of the funds to subsistence officers to be expended for the subsistence
of the army, hdd, that the collection, transfer and disbursement of
these funds were under the control of the militar}^ commander or
military governor and did not form an}' part of an appropriation
made by Congress for the support of the army. Such funds should
not therefore be taken up on accounts current of disbursing officers in
connection with funds from such appropriations. Card 5464, Decetn-
her, 1898.
481. Sec. 1136, Rev. Sts., provides that "permanent barracks or
quarters and buildings and structures of a permanent nature shall not
be constructed, unless detailed estimates shall have been previously
submitted to Congress, and approved by a special appropriation for
the same, except when constructed by the troops; and no such struc-
tures, the cost of which shall exceed twenty thousand dollars, shall be
erected unless by special authority of Congress.'' In practice this
section has been construed to permit of the construction out of the
annual appropriation for "barracks and quarters" of permanent
buildings, at a cost not to exceed |i20,000, although no detailed
estimates "have been previously submitted to Congress, and approved
by a special appropriation for the same," and also to permit of the con-
struction of more than one permanent building at a particular post
for the same purpose, even though their aggregate cost should exceed
$20,000.00. In view of the apparently contradictory provisions of
^See 5 Comp. Dec.,257.
^See A. R.,162, as amended by G. O. 141, A. G. 0., 1898, whioh provides for the
cases of soldiers dying within the limits of the United States. See A. R. 180 of 1901.
136 ARMY PMPLOYMElSrT OF FOR CIVIL PURPOSES.
the section, advised that the construction which it has received in prac-
tice hQ adhered to. Card 6985, Septemher, 1899.
482. Money donated and turned over to the United States to be
expended upon a public work would have to be appropriated by Con-
gress to that work before it could be used thereon. Card 1662,
August, 1895.
ARMY— EMPLOYMENT OF FOR CIVIL PURPOSES.^
483. Under Art. IV, Sec. 1, of the Constitution, the army may be
employed to protect a State from "invasion" or "domestic violence."
only by the order of the President, made "on application of the legis-
lature, or of the executive when the legislature cannot be convened."
A military commander, of whatever rank or command, can have no
authority, except b}' the order thus made of the President, to furnish
troops to a governor or other functionary of a State, to aid him in
making arrests or establishing law and order. XXX, 125, March.,
1870; XLI, 206, April, 1878.
484. The proviso of the Constitution — ''when the legislature cannot
be convened," mav be said to mean when it is not in session, or can-
not, by the State law, be assembled forthwith or in time to provide
for the emergency. When it is in session, or can legally and at once
be called together, it will not be lawful for the President to employ the
army on the application merely of the governor. XXX, 172, March,
1870.
485. A military force emplo^^ed according to Art. IV, Sec. 1, of the
Constitution, is to remain under the direction and orders of the Presi-
dent as commander-in-chief and his militar}^ subordinates: it cannot
be placed under the direct orders or exclusive disposition of the gov-
ernor of the State. XXX, 172, su^^ra; card 8383, May, 1900.
486. Though dicta are to be met with in the authorities looking to
such a service as legal, it is clear that the military forces of the United
States, cannot, as such, l)e permitted, in any event, to serve upon the
posse com.itatus of a sheriff, or other executive official whose function
it is to execute the local laws of a State or Territor3^ XXXVI, 150,
3fai/, 1876; XXXIX, 458, 577, March and June, 1878.
487. It is provided in sec. 15 of the act of June 18, 1878, c. 263, that —
"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 a posse comita-
tus, or otherwise, for the purpose of executing the laws, except in
1 F'or a full discussion of this subject and citation of authorities, see "The Use of
the Arni}^ in Aid of the Civil Power," by G. N. Lieber, Judge-Advocate General,
U. S. Army, Appendix B, p. 759, posl.
ARMY— EMPLOYMENT OF FOR CIVIL PURPOSES. 137
such cases and under such circumstances as such emplo3'ment of said
force may be expressly authoi'ized by the Constitution or ])y act of
Congress."^ In view of this legishition, lield as follows:
That whenever a marshal or deput}^ marshal was prevented from
making- due service of judicial process, for the arrest of persons or
otherwise, by the forcible resistance or opposition of an unlawful com-
bination or assemblage of persons, the President was expressly avfJwr-
ized by Sec. 5298, Rev. Sts.,^ to employ such part of the ami}' as he
might deem necessarj^ to secure the due service of such process and
execute the laws. XXXIX, 665, Scptemher, 1878; XLIII, 80, JYovem-
lei\ 1879; 324, J/t/y, 1880.
That, notwithstanding the legislation of June 18, 1878, the President
was authorized to employ the militar}" to arrest and prevent persons
engaging in introducing liquor into the Indian country contrarj^ to
law, as also to arrest persons being otherwise in the Indian country in
violation of law,^ or to make the arrest therein of Indians charged with
the commission of crime; such employment being expressly authorized
by Sees. 2150 and 2152, Rev. Sts. XLIII, 112, December, 1879.
That the President was authorized by sec. 2150, Rev. Sts., to remove
by military force, after a reasonable notice to quit, certain persons com-
morant upon an Indian reservation contrary to the terms of a treaty
between the United States and the tribe occupying the reservation, and
^ As to what provisions of the Constitution and acts of Congress are excepted, see
paragraphs 486-491, A. R. of 1895 (563-568 of 1901).
As U. S. marshals are not expressly authorized by any Act of Congress to sximmon
the military to serve on a 2^osse comitatus (this being authorized only indirectly and
impliedly l)y the jirovision of the act of Sept. 24, 1789, incorporated in Sec. 787 of
the Revised Statutes, 6 Opins. At. Gen., 466, 471 ; Letter of At. Gen. Evarts to the U. S.
Marshal for the No. Dist. of Fla., At. Gen.'s Office, Aug. 20, 1868; General instruc-
tions to U. S. [Marshals from At. Gen. Taft, published in G. 0. 96, Hdqrs. of Army,
1876), the army can not, under the existing law, legally act on the posse comitatus of
a marshal or deputy marshal of the United States. See 16 Opins. At. Gen., 162
(Oct. 10, 1878); 17 id., 242, 333; 19 id., 293; 21 id., 72.
While the object of the serving of U. S. troops on the posse of a U. S. Marshal
(where legally authorized so to serve) is simply to assist and co-oi^erate with him
in the enforcement of the process committed to him for execution, and the com-
mander of the detachment is to consider himself as acting in subordination to the
ci\il officer (see At. Gen. Evarts's letter of instructions cited, supra), the troops
employed are to be regarded as under the command of their military superiors, and
directly responsible to the latter as on other occasions of the performance of military
duty and service. See G. 0. 96, A. G. O., 1876; also par. 490, A. R. of 1895 (567 of 1901 ).
^See Sec. 5300, Rev. Sts., as to proclamations by the President whenever in his
judgment it becomes necessary to use the military forces under Sees. 5297, 5298, and
5299 or other sections of Title LXIX, R. S. As instances of such proclamations see
Proclamation of Oct. 7, 1878, 20 Stat., 806; do. of July 8 and 9, 1894, 28 Stat., 1249,
1250. See also the President's (Cleveland) reply to Gov. Altgeld, July 5, 1894 —
l^ublished in "The Use of the Army in Aid of the Civil Power" (Lieber), Appendix B,
jiost, ])age 784.
-'But note that, in view of the provisions of Sec. 2151, Rev. Sts., an officer of the
army who detains a person arrested under Sec. 2150 longer than five days before
"conveying him to the civil authority," or subjects him when in arrest to unreason-
ably harsh treatment, renders himself liable to an action in damages for false imprison-
ment. In re Carr, 3 Sawyer, 316; Waters v. Campbell, 5 id., 17.
138 AEMY EMPLOYMENT OF FOR CIVIL PURPOSES.
who therefore were there "in violation of law" in the sense of that
section/ XXXVII, 266, January, 1876.
488. In all cases of civil disorders or domestic violence, it is the duty
of the army to preserve an attitude of indifference and inaction till
ordered to act by the President, b}^ the authority of the Constitution or
of Sec. 2150, 529T or 5298, Rev. Sts., or other public statute. An officer
or soldier may indeed interfere to arrest a person in the act of com-
mitting a crime, or to prevent a breach of the peace in his presence,
but this he does as a citizen and not in his military capacity. (See
Twenty-fourth Article.) Any combined effort by the military, as
such, to make arrests or otherwise prevent breaches of the peace or
violations of law in civil cases, except by the order of the President,
must necessarily be illegal. In a case of civil disturbance in violation
of the laws of a State, a military commander cannot volunteer to
intervene with his command without incurring a personal responsibil-
ity for his acts. In the absence of the requisite orders he may not
even march or arraj^ his command for the purpose of exerting a moial
effect or an effect in teri'orem- such a demonstration indeed could
only compromise the authority of the United States while insulting the
sovereignty of the State. XXX, 125, Ma/rch, 1870; XXXII, 241,
January, 1872; XXXVI, 450, May, 1875; XLI, 20G, Ajjril, 1878.
489. IleJd to be at least doubtful whether the authority of the
President as Conmiander-in-chief could legall}- be extended to the
ordering of an officer of the army upon the purely civil dut}^ of
instructing Indian youth, unless indeed such instruction was to be
given by him as a professor of a college, &c., under Sec. 1225, Rev.
Sts. Special duties of an exclusively civil character, where intended
to be anything more than merely temporary, have in general been
devolved upon military officers oidy by the authority of express legis-
lation, — as, for example, in the cases provided for by Sees. 1225, 2062,
2190, and 4687, Rev. Sts., in which authority has been given by Con-
gress for the employment of officers of the army as professors, &c. ,
of colleges, Indian agents, and assistants in taking the ceuvsus^ and on
the coast survey. So, advised, that, if thought expedient to devolve
upon military officers the function of the instruction of Indian youth,
specific authority be obtained from Congress for the purpose.'' XLI,
545, Aj)ril, 1879.
^See 14 Opins. At. Gen., 451; 20 id., 245; and note the proclamation of the Presi-
dent pul>lished 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 endan<rering the
public jiroperty of the United States, or in case of attempte^l or threatene<l interrup-
tion of the U. S. mails or other equivalent emergency, see A. R., 489 (566 of 1901).
^See Li re Neagle, 135 U. S., 1, and authorities cited.
140 ARMY REGTTLATIOlsrS.
ARMY REGULATIONS.
494. Army regulations proper are executive or administrative rules
and directions as disting-uished from statutes.^ A regulation in con-
flict with an existing act of Congress can have no legal effect; if, sub-
sequently to the issue of a regulation, an act is passed with which it
conflicts, it becomes at once imperative.^ XXXYIII, 255, August^
1876; 641, June, 1877, \ 43, 422, Mvemher, 1890; 49, 276, Sej^tember,
1891; 60, 471, July, 1893; 65, 187, June, 1891^. Army regulations, like
statutes, are not to be given a retroactive effect unless their language
clearly requires it. 28, 260, JSfovemher, 1888.
495. An authority which can legally be vested by legislation only,
cannot of course be conferred by an executive regulation. Thus ]ield
that the expenditure of the proceeds of the sale of articles manufactured
by the prisoners at the Military Prison, such proceeds being public
funds, could not properly be the subject of an army regulation. XLII,
24, Octoher, 1878.
496. Held that the provision of s. 37, c. 299, act of July 28, 1866,
^Army regulations are not to be confounded with the "rules for the government
and regulation of the land (and naval) forces," which Congress is empowered to
make, by Sec. 8, Art. I of the Constitution; these being, of course, statutory rules.
The use in this section of the word "regulation;" the fact that the published Army
Regulations contain sundry statutory provisions not distinguished from the mass of
regulations proper, and embrace also some subjects which seem scarcely within the
scope of executive direction or military orders but to pertain rather to the province
of the statute law; and the further fact that the Army Regulations as a body received
a special recognition (see § 496, post) in the act of July 28, 1866 — these circumstances
have contributed to confuse regulations with statutes much to the embarrassment of
the student of military law. Regulations proper (unlike articles of war, which are
statutes) are simply orders and directions made and published to the army by the
President, either as Commander-in-Chief , for the purposes of the exercise of command
over the army, or as Executive, for the purposes of the execution of powers vested
in him by law.
^As illustrating the distinction between statutes and regulations, and the principle
that regulations can have force only so far as they are not inconsistent with the stat-
ute law, see United States v. Webster, Daveis, 38, 56-59, and 2 Ware, 46, 54-60;
Boody r. United States, 1 Wood. & Minot, 150, 164; McCall's Case, 5 Phila. 259; In
?rGriner, 16 Wise, 447; Magruderr. United States, Devereux (Ct. Cls.), 148; lOpins.
At. Gen. 469; 4 id., 56-63, 223, 225-7; 6 id., 10, 211, 215, 357, 365; 8 id., 335, 343; 11
id., 251, 254; O'Brien, 31.
As to the inferior f(3rce and obligation of the British Army Regulations as com-
pared with the Mutiny Act (and Articles of War thereby authorized), see Samuel,
193-197. Clode (Mil. & Mar. Law, p. 55) illustrates the nature of these Regulations
in noting that originally, "Each Colonel had his own Standing Orders — no General
Regulations being in existence — for the discipline and exercise of his regiment."
That regulations promulgated through the Secretary of War are to l)e " received as
the acts of the Executive," — see United States v. Eliason, 1(5 Peters, 291, 301; United
States?'. Webster, Daveis, 38, 59; United States?'. Freeman, 1 AVood. & Minot, 45, 50-1;
Locking ton's Case, Brightly, 288; McCall's Case, SPhilad., 289; In matter of Span-
gler, 11 Mich., 298, 322; — in connection with other authorities noted under Secretary
OF War.
See also, for an exhaustive discussion of this subject and citation of authorities,
"Remarks on the Army Regulations and Executive Regulations in General," by G.
Norman Ijielier, Judge-Advocate General, l^. S. Army, Ajipendix A, j\ 703, jxt^f.
ARMY REGULATIONS. 141
which, in directing the Secretary of War to prepare and report to Con-
gress at its next session a new set of regulations, added, "the existing
regulations to remain in force until Congress shall have acted on said
report," — meant merel}^ that the same should remain in force as rer/u-
lations; it did not communicate to them the quality' or effect of stntntes.
XXXIII, mi-y, January, 1873; XXXVII, 417, March, 1876; XXXIX,
235, October, 1877.
This enactment was but temporar}^, and was not incorporated in an}'
form in the Revised Statutes. (It expired at the end of the 2d session
of the 39th Congress, no code of regulations having been reported to
that Congress by the Secretary of War as required by the act.) Mean-
while the regulations in force in July, 1860, have been verj- consider-
ably modified and added to.^ Thus there is now no existing statutory
sanction — such as that of Sec. 1547, Rev. Sts., in regard to the regula-
tions of the navy" — for the Army Regulations as a whole. No such
sanction, however, or recognition, is necessary to give effect to regula-
tions proper.' XXXIX, 235, October, 1877.
497. A breach of an army regulation, imposing a duty upon an offi-
cer or soldier, is in general chargeable as "conduct to the prejudice
of good order and militarj^ discipline," and punishable under Art. 62.
XXXIX, 2S3, JVoveniber, 1877.
498. Par. 731, A. R. (1889), forbidding officers " to give or take receipts
in blank for public mone}' or property," &c., is sound in principle, and
no sufficient reasons are perceived why exceptions to this ride should
be authorized in cases of officers' pay accounts. 58, 426, March, 1893.
499. Ami}' regulations may be divided into several classes: (1) Those
which have received the sanction or confirmation of Congress, (2)
those that are made pursuant to and in execution of a statute, and
(3) those made 1)}' the President as commander-in-chief of the army
and as executive and not made in supplement to a statute.* Regula-
tions of the first class can not be altered, nor can exceptions to them
be made b}' executive authority unless the regulations themselves
^The opinion expressed by the Attorney General (14 Oi^ins., 164, 173 — January,
187.'!) that by tlie act of 1866, "the authority to modify " tlie then existing army regu-
lations, "previously possessed by the Executive," under the act of April 24, 1816,
"would seem to have been taken away," — was apparently not concurred in by the
Secretary of War; repeated modifications of these regulations having been published
in orders since (as well as before) the date of this opinion. In United States i'.
Eliason, 16 Peters, 296, 301, the Supreme Court, referring to the general power of the
Executive to institute army regulations, observes: — "The power to establish implies,
necessarily, the power to modify * * * or create anew."
^This section is as follows: — "The orders, regulations, and instructions issued by
the Secretary of the Navy prior to July 14, 1862, with such a teratious as he may
since have adt)pted, with the ap})roval of the President, shall be recognized as the
regulations of the Navy subject to alterations adopted in the same manner."
^ See first note under this Title.
*See Lieber on Regulations, cited in note 2 to § 494, anli'.
142 ARMY REGULATIONS.
provide for it. Card 2074, March ^ 1896. Reg-ulations of the second
class — those made pursuant to or in execution of a statute — may, unless
prohibited hy the statute, be modified by the executive authorit}^ but
until this is done they are binding as well on the authority that made
them as on others. Thus, held that the regulations relating to the
examination of enlisted men for commissions under act of Congress
of July 30, 1892, were of this class, and that therefore the requirement
respecting physical qualitications, having been prescribed pursuant to
an act of Congress, was as binding as if incorporated in the act itself^
and could not legally be waived in a particular case. Cards 1819,
Novemher, 1895; 2074, sii^ra; 3219, May, 1897. With reference to
the third class, the large body of regulations emanating from and
depending solely on the authority of the President as commander-in-
chief, it has sometimes been claimed that the same rule should be
applied that is applied to regulations made pursuant to a statute.
This has not, however, been done in practice, and should not be done
for the reason that it would be an unnecessary, embarrassing and per-
haps unconstitutional limitation upon the authorit}^ of the President
as commander-in-chief. To exempt from compliance with a particular
regulation of this class in an exceptional case would seem to ])e a
lawful exercise of that authority. Thus held that the Secretary of
War could, where the interests of the government demanded it, dis-
pense with the bond required of contractors bj^ A. R., 559 (638 of
1901). Card 2074, March, 1896.
500. There is a large mass of matters over which the Executive
would have jurisdiction if Congress, with its superior jurisdiction
(under the constitutional power to raise armies and to make rules for
the government and regulation of the land and naval forces) had not
occupied the field. In all such ca*es, to the extent that Congress regu-
lates the subject, the power of the Executive to act in regard to it is
taken away. Thus Congress, by Sec. 1102, Rev. Sts., prescribed that
each cavalry regiment shall consist of twelve troops. To "skeleton-
ize" some of these troops, that is, to discontinue them for a time,
would be practicallv to change the statutory organization, and whether
this can be done by Executive order, in the absence <bi statutory
authority, is open to serious doubt. Card 360G, Octoher^ 1897.
501. There is no statutory authority for making a regulation placing
civilian employees of the government on the same footing as dis-
charged soldiers with regard to rations while under treatment in
hospital, l)ut neither is there statutory authority for the regulation in
regard to discharged soldiers. The best that can be said of such reg-
iSee U. S. ?'. Barrows, 1 Abbott (U.S.), 351.
ARREST MILITARY. 143
ulations, like the orders of the War Department for issue of rations
to sufferers from flood and famine, is that they are founded on a kind
of necessity. Undoubtedly the}' should be authorized b}" statute.
Card 9491, ^Decembe)', 1900.
ARREST— MILITARY.
502. \n officer may be put in arrest by a verljal or written order or
communication from an authorized superior, advising him that he is
placed in arrest or will consider himself in arrest, or in terms to that
effect; the reason for the arrest need not be specilied. At the same
time he is usually required to surrender his sword, though this for-
mality may be dispensed with. But an arrest, though an almost inva-
riable, is not an essential preliminary to a military trial; to give the
court jurisdiction it is not necessary that the accused should have been
arrested; it is sufficient if he voluntarily, or in obedience to an order
directing him to do so, appears and submits himself to trial. So,
neither the fact that an accused has not been formally arrested, or
arrested at all, nor the fact that, having been once arrested and
released from arrest, he has not been re-arrested before trial, can be
pleaded in bar of trial or constitute any ground of exception to the
validity of the proceedings or sentence. II, 77, March ^ 1863; XVII
419, Odohei; 1865; XIX, 419, February, 1866; XXIX, 470, November,
1869; XXX, 164, 3£arch, 1870; XXXV, 142, January, 187Jf. An
officer is in no case entitled to deirumd to be arrested. XVII, 419,
sajjra.
503. Except in the class of cases indicated in Art. 24, only "com-
manding officers " can place commissioned officers in arrest. (See A. R.
221 of 1863; 998 of 1901.) The commanding officer thus authorized is
the commander of the regiment, separate company, detachment, post,
department, &c. , in which the officer is serving. XXVI, 642, July,
1868. Where a company is included in a post command, the com-
mander of the post, rather than the company commander, is the
proper officer to make the arrest of a subaltern of the company.
XXIX. 804, October, 1869.
504. It is clearly to be inferred from the Army Regulations that
unless other limits are specially assigned him, an officer in arrest nmst
conffne himself to his quarters. It is generall}^ understood indeed
that he can go to the mess-house or other place of necessary resort.
It is not unusual, however, for the comm.ander, in the order of arrest,
testate certain limits within which the officer is to be restricted, and,
except in aggravated cases, these are ordinaril}'^ the limits of the post
where h(^ is stationed or held. V, 434, December, 1863.
144 ARREST MILITARY.
505. The status of beiiio; in arrest is inconsistent with the perform-
ing of military duty. II, 77, Jlarch, 1863. Placing an arrested officer
or soldier on duty terminates his arrest. XXVI. 114. Octohti\ 1867.
Releasing a soldier from arrest and requiring him to perform military
dut}', after his trial and while he is awaiting the promulgation of his
sentence, can be justified only by an extraordinary exigency of the
service. VII, l>34, 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, <S:c., a
bond executed or authorized to be executed by such a committee will
not be accepted as sufficient. In such a case it is the board which
should authorize the execution of the obligation. 64, 370, Aj^rH, 1894- ;
65, 38, 48, 102, Jfaij, 1894; card 3704, Fehruary, 1898. Where the
articles of incorporation declared that the corporation should consist
of and be controlled by certain trustees, l)ut recognized an executive
committee, in providing that such conmiittee should, under the direc-
tion of the board of trustees, have a " general supervision of the aflfairs
of the college and the property of the corporation," held that such
words were not sufficient to empower the executive connuittee to bind
the corporation in so important a matter as the execution of a bond
under Sec. 1225, Rev. Sts. 64, 274, Ifarch, 189 J^. The act of incor-
poration provided for an executive committee whose duties should be
prescribed by the by-laws of the board of regents. Such by-laws
authorized the committee "to transact all such business as may from
time to time be required by the board." Held that a bond executed
pursuant to resolution of the committee, without any specific authority
or requirement l)v the board ])eing shown, could not be accepted, but
that, if the l)oard could not readily be convened, a personal bond of
some individual, with sureties, should be substituted. 64, 327, Api'll,
1894; Card 2687, OcU^her, 1896.
So, where the charter of incorporation of a college vested the "fnll
control of the atl'airs of the college" in a board of trustees, and the
board, bv vote, devolved upon an executive committee power to "act
BOND. 161
for the trustees," lield that — even if this delegation were legal — such
indefinite action, while authorizing the committee to transact ordinary
business, was not sufficient to empower it to exercise the special dis-
cretion involved in the execution of a sealed obligation binding the
corporation to the United States. 65, 4Si, May^ 189Jf.
Where the applicant for the issue to it of arms, &c., under Sec. 1225,
Rev. Sts. — an "Agricultural and Militar}^ College" — was not a cor-
poration but a branch or "department" of the State university, a
corporation, by which it was governed, held that, not being a legal
person, it had not the capacity to enter into a bond, but that the bond
should be in the name of the corporation and its execution should be
authorized by the board of trustees of the university, or — if they
could not be assembled for the purpose — that an individual bond should
be furnished. 64, 110, March, 189^.
582. Where a board of trustees controlling a corporation, passed a
resolution empowering the president of the board " to negotiate and
carry on an}' business which, in his judgment, tended to the welfare of
the institution," advised ihni this resolution was not sufficient!}' specific
to authorize the president to execute an instrument under seal such
as the bond required by Sec. 1225, Rev. Sts. 39, 158, March, 1890,
583. A b3'-law to the effect that in the recess of the board of regents,
an executive committee of the board should "have general care of
all matters pertaining to the welfare of the university," lieJd not suf-
ficient to empower such committee to enter into so legally formal and
binding an engagement as the giving of a bond under Sec. 1225,
Rev. Sts. 63, 167, Fehrnarij. 189^.
584. A bond furnished pursuant to the statute by any incorporated
college or university should be accompanied by a duly certified copy of
the charter or articles of incorporation showing that the institution
is a corporation and has power to enter into the obligation. 63, 322,
January, 1894-/ 65, 190, 191, June, 189Jt.. The copy should be authenti-
cated by the certificate of the official who is custodian of the record of
the same. 64, 11, February, 189Ii,. Where the copy was certified by
a county recorder, not under seal, hield that if he had no seal which
he could affix, his official character should be certified to by the county
official who was the custodian of his election and qualification. 64,
274, March, 1894.
585. Where the bond offered in compliance with the statute pur-
ported to be signed by the president of the corporation, it should be
shown in connection with the bond that the person so signing had
been duly elected such president by the corporation or by a managing-
body authorized by the articles of incorporation to elect him. 29,
307,"^ January, 1889.
16906—01 11
102
|{<»NI).
586. Wlioro llic (rusli'CH, rco-cnls, Sec.., have, by a rcssolnlion or \o(c
<>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 (\\<!ciilion, an
cxlractof I he miniilcs of llic |)roc('('(|irij;,s of ili(i hoai'd fully ,s(!ttinj4'
foil li ( lie ndopl inj4' of 1 Ik- I't-soltil ion ;nivin<»' the, !'(',() ui.sltc autliority ; hucIi
(extract Ix'ino- ccriilicd by llic sccrclary, or oUicr pi'opci" (lUHtodian of
llic records, under llic seal of llic corporal ion, as a ti'uc co|)V of such
iniiiulcs. 'I'lie cerl ilicalc, or nllidjivil. of llic socrotary Ihiit such a
resolution, /4ivin<j;' a copy of il, was a,do|)l.c(j, is not a suHicicnt siihsti-
tut(! for Ihc i-ccoi-d evidence, and where llic (■x(^cul.ion l»y IIk^ })resi(leMt
I'CstH only upon such ;i c<'rl ilicale, llie bond will nol be accepted. Tlio
only ])ro|)er esidi'iice of llic procccdinj^s of ii body which k(;(!ps a
record is llic record ilself or m 1 ransci'ii)l<luly authcnlicalcd l)y the le;4al
custodiiin, :in<l wli<'re il exists ils plac-(; cannot be sii|)j)lied by the iikut;
.sliilcincnl. of the secretary or other otlicial of the c(>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 e<luc;ition in chiiiin'c ol sill the public ediu-atlonal
institutions of the Sliitc, /vYV'//////r//^AY/lhat a personal bond be rccpiired.
65,:'.l, JA///. /.SYA//.
588. l/thl llmt ;i, State uiiivei-sily , which, lhou<4li nianae<'(l by
trustees appointed by the State, was not incorporated, was only a
piece, of pi'o|)ei'tv of the State, ha\ine- no personal existence oi' ca|)acity
to eive a bond. In such case, if the IriislcM's ar<^ not iiicorj)orated, the
bond for aims furnished under the statute will have to be; a jx'rsonal
one. 64, :;0l, /1/vvV, IS!) J,.
689. Where the iiiii\('rsity was not an incorporated institution, but
|)ropcrty belon^ine- to ;i 'i\'ri-il,ory, by which it was c,ari'i<ul on throuj^h
trustees, and the lenislal ui'(^ had made no proN'ision foi" a s|)ecial
bond, ////r/ that the case was one in wdiicli a p<'isonal bond should be
re(iuired. ^\,',\Ti . Jul ij, IS!)I); 55, ^22, >SV/>/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 th<! proport}','"' })ut does not in terms recjuin; that .mndleH
shall be ji^-iven. Advised therefore that the Secretaiy of War would
f)e authorized in his discretion to dispense with sureties if he deemed
the bond of th<' pi-incipal to ])e sufficient, and that this discretion niij^ht
well be exercised in favor of accepting- without sureti(!s a l)ond in which
the principal was the city of Philadelphia as trustee for the Girard
( V)lleo-e Fund. 59, 17f), April, 1803.
591. Where th(; penalty of the }>ond 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<s release the college from its liability as bailee to take
extraordinary care in preserving and duly returning the arms, but the
instrument should be executed in such form as to leave no question
as to such lial)ility continuing. 64, 61, Fehruary, 1891t..
599. The acceptance of an incorporated suret}" company as surety
BOUNTY. 165
is now authorized by the act of August 13, 1894 (28 Stat., 279).
But before such corporation will be accepted b}- the War Department
as a surety on a bond, it must file in the War Department the papers
required by paragraphs 571, 576, and 577, A. R. (653, 655, and 656 of
1901). Cards 281, 2997, and 3280, April, 1895, to Julij, 1899.
600. The provision of the Legislative, Executive and Judicial appro-
priation act of March 2, 1895, requiring official bonds to be examined
at least once every two j^ears for the purpose of ascertaining the suffi-
ciency of the sureties thereon, is sufficiently complied with as to bonds
on which a corporation is surety, if the corporation files periodical!}'
in the War Department the financial statement required by A. R. , 571
(653 of 1901). Card 2516, August, 1896.
601. The act of August 13, 1891, does not require a compliance with
any laws or regulations which a State may impose to qualify a foreign
suret}^ company to do business within the State with the officers or
citizens thereof. Under the act referred to a bond of the surety com-
pany to the United States would be equally valid Avhether or not it
had complied with such laws or regulations of the State. Card 3604,
Octolei; 1897.
602. Where upon a change of office the superintendent of a surety
company wrote to the War Department to the efl'ect that the company
was willing that the official bond pertaining to the old office and
upon which the company was surety should extend to the new office,
held that the letter of the superintendent was not sufficient to extend
the bond as proposed; that to extend the same to the new office would
require an instrument under the corporate seal referring to the bond
in such a wa}' as to identify it, executed b}' officers of the company
authorized to bind it in the matter of executing bonds, but remarked
that where, as in the particular case, there had been a change of office,
the practice was to require a new bond.^ Card 4224, April, 1899.
BOUNTY.
603. Bounty is notjxii/, nor is it properly an "allowance " in the sense
in which that term is ordinarily used as referring to the regular pecu-
niary emoluments of soldiers other than pay.' X, 661, Decemher,
ISGJi,; XV, 356, June, 1865.
^But gee note 1, page 156, ante.
^The term "allowances," however, when employed in a general sense, has been
regarded as im-luding bounty. Thusseel3 0pins. At. Gen., 188, 197, where it is held
that the general forfeiture of pay and allowances due at the date of the offence,
imi)osed upon deserters by par. 1358, Army Regs., embraced instalments of bountj
due at the time of the desertion; also United States v. Landers, 2 Otto, 77, where the
court gt)es so far as to hold that forfeiture of "pay and allowances," bnpoxed by
sentence, includes bounty.
166 BREVET RANK.
604. The two years' service required b}^ the act of 1861 need not
have been continuous service. XI, 500, March^ 1865. Nor, if two
3^ears' service was rendered, does it aflfect the right of the soldier to
bount}" that during a material part of the period he was detailed upon
and performed a (jnasi civil dut}' as a clerk. XXXI, 507, July., 1871.
605. In the absence of anj^ express statutory provision forfeiting a
soldier's right to bount}' where he has been guilty of desertion, held
that the mere fact that a desertion had been committed by a soldier at
some period of his term of service could not affect his right to bounty,
provided that, having served the requisite period, he was Unally
honorahly discharged. Thus, in repeated cases of deserters, who, after
being restored to duty without trial, or upon full execution or remis-
sion of sentence — for whether the deserter be brought to trial and
punished or not is immaterial — had performed faithful service, and
been finally honorably discharged; held that no forfeiture of bounty
had been incurred.^ XII, 139, Deceniher., 186 J).; XV, 356, June^ 1865;
XVIII, 333, Novemher, 1865; XIX, 269, Decemler, 1865; XXI, 614,
Augxist, 1866; XXII, 653, March, 1867; XXIX, 127, July, 1869;
XXXVI, 478, May, 1875; XXXIX, 413, February, 1878; XLIII,
218, February, 1880.
606. Where a veteran volunteer was honorably discharged, not by
reason of the expiration of his full term or because his services were
no longer required by the Government, but because of his promotion
to the grade of a commissioned officer, held that he was entitled only
to such proportion of the bounty and premium specified in G. O. 191,
War Dept., 1863, as had accrued at the date of his discharge. XII,
548, Augiist, 1865.
607. A soldier in the war of the rebellion, who enlisted and served
for a period of "two years or during the war if sooner ended," became
entitled, at the end of such term, under the act of July 22, 1861, to a
bounty of $100. If he enlisted after April 19, 1861, for a period of
not less than three years and served through this term, or until the
close of the war, he was entitled to an additional bounty of $100, under
the act of July 28, 1866. In either case, if discharged before the
expiration of the required time, on account of wounds or injuries
received in the service in the line of duty, he became entitled to the
bounty. 64, 422, April, 189^.
BREVET RANK.
608. Brevet rank can, properly, neither be conferred, nor take effect,
except as an incident to full rank of a lower grade. XXI, 608. August,
1866.
^See U. S. V. Kelly, 15 Wallace, 34.
BRIDGE. • 167
609. In view of the repeal (by the act of March 1, 1869) of the old
()lst Article of war (which did away also with the portion of par. 10 of
the Army Regulations which was derived therefrom), an officer, except
where specially assigned to diit}^ according to his brevet rank by the
President, is no longer entitled to precedence on courts martial or
otherwise by reason of his brevet rank. XXXV, 117, June^ 187 J^.
610. Held that a confirmation by the Senate, on March 3, 1869, of a
brevet appointment previously made, was of no effect and conferred
no right to a brevet commission; Congress having, two days before,
by the act of March 1, 1869, c. 52, enacted that "from and after the
passage of this act commissions by brevet shall only be conferred in
time of war." XXXIX, 209, Octoher, 1877.
611. Under Sec. 1211, Kev. Sts., an officer may legally be assigned
to duty according to his brevet rank for a special command or duty,
and in such case the assignment will not be effective generally, but
only for the purposes of such command or duty and during its continu-
ance. Thus held that an officer assigned to dut}'^ according to his
brevet rank "while in command of" a certain department, could legally
exercise the authority and privileges of such rank only when holding
such command, and for the purposes of the same.^ XLII, 21, October^
1878.
612. When an officer has been duly assigned to duty or command
according to a certain brevet rank, that rank becomes his actual mili-
tary rank for the period of the assignment. He is empowered to
exercise the authority which belongs to such rank under the circum-
stances, to wear the uniform, and to be addressed by the title, of such
rank, &c. Held., however, that a colonel, assigned to command accord-
ing to a brevet rank of general, was not entitled to the aids-de-camp of
a general (major or brigadier), but, as indicated in par. 35, A. R. (33
of 1895; 40 of 1901), could be "allowed" the same only "with the
special sanction of the War Department" — in other words, bv the
authority of the Secretary of War. XLII, 21, Octoher, 1878.
BRIDGE.
613. The power of Congress to legislate for the prevention and
removal of physical obstructions to navigation in public rivers in gen-
eral.'^ having been allowed to lie dormant for nearly a century, began
to be exercised in the act of July 5, 1881, c. 229, s. 8, followed b}^ the
^But see now act of March 3, 1883 (1 Sup. R. S., 400), which provides that officers
of the army .shall only be assifjned to duty or command according to their brevet
rank wlii-n actually en<ia,if('d in hdstilities.
^ As to the constitutionality of the exercise of this power bv Congress, see Miller v.
Mayor of New York, 109 U. S., 385, 393, 394.
168 . BRIDGE.
more explicit legislation on the subject of the act of August 11, 1888,
c. 860, sees, 9 and 10; such power having been previously left to be exer-
cised b}^ the States.^ 42, 85, Jul t/, 1890. The power thus assumed hj
Congress is more fully exercised in the act of September 19, 1890, c.
907, sees, tt, 5 and T, and sec. 3 of the act of July 13, 1892, c. 158.' A
distinctive feature of this legislation is that it in effect precludes States
from authorizing the construction of bridges over navigable waters
which are not wholly within their territorial limits, and provides that
it shall not lie lawful to commence the construction of a bridge over
navigable water of the United States under any act of a State legisla-
ture "undl the location and plan of such bridge" have "been sub-
mitted to and approved l)y the Secretary of War," Held, under this
provision that the authority of a State for the erection of a bridge over
navigable water within the State should be shown as a condition pre-
cedent to the approval by the Secretary of War.-' 55, 61, 140, August,
1892; 62, 91:, Odoher, 1893. The fact that the title to the soil under
the water is vested in a municipality of the State does not affect the
power of the State to grant such authority, nor dispense with the neces-
sity of its doing so. The title to the soil is distinct from the right of
conservation. Though this title be vested in a town b}^ the State,
there remains in the latter hj reason of its sovereignty, " a jusj^uhli-
cum of passage and repassage, with consequent power of conserva-
tion,"* under which power it may concede the authorit}^ required by
the statute. 62, 94, supra.
614. A river is a navigable water of the United States when it
forms by itself or by its connection with other waters a continued high-
way over which commerce is or may be carried on with other States
or foreign countries in the customary modes in which such commerce
is conducted by water. If a river is not itself a highway for com-
merce with other States or foreign countries, or does not form such
highway by its connection with other waters, and is only navigable
between different places within the State, then it is not a navigable
water of the United States but onl}^ a navigable water of the State.'"'
So held, that DeviFs Lake being wholly within the State of North
Dakota and having no visible outlet was not a navigable water of
the United States and therefore not subject to the laws of Congress
relating to such waters. A bridge ma}' be built across this waterway
under the laws of the State without reference to the Federal govern-
^See Willamette Iron Bridge Co. v. Hatch, and authorities cited, 125 U. S., 1.
■-'The existing legislation on the subject will be found in section 9, et seq., of the
River and Harbor Act of March 3, 1899 (30 Stats. 1151 ).
3 See ].. S. and M. S. R. Co. v. Ohio, 165 U. S., 365, and 20 Opins. At. Gen., 488.
*6 0pins. At. Gen., 172, 178.'
^The Montello, 11 Wall., 411. See, also, authorities cited in note 1, page 493,pos<.
BRIDGE. 169
ment unless the bridge is to be located on Federal propert3\ Card
7750, March, 1900.
615. According- to the views and practice of the AVar Department
there is no general legislation of Congress authorizing the construction
of bridges over streams or waterways, the navigable portions of which
are not wholh^ within the limits of a single State, except as to bridges
over the Ohio River. ^ Such authority has hitherto been given, with
the exception stated, by special acts, which have uniformly contained
provisions requiring that the plans of the bridges be submitted to the
Secretary of War for approval before construction is commenced.
But in the case of a stream or waterway whose navigable extent is
wholly within the limits of a single State, Congress has provided by
Sec. 7 of the River and Harbor Act of Sept. 19, 1890, as amended by
Sec. 3 of the corresponding act of July 13, 1892, that a bridge may
be built thereover under authority of an act of the State legislature,
provided the plans and location thereof are approved by the Secretary
of War.- Cards 307, Sej^tember, 1891^; 1375, May, 1895; 1943, Jan-
uary, 1896; 2-M8, 2470, July, 1896; 2596, September, 1896; 2677, Octo-
ber, 1896; 3047, March, 1897; 3428, August, 1897. In the latter case
the plans of the bridge should be accompanied by proper evidence
that the State has authorized its construction. Card 1389, May, 1895.
616. Sec. 7 of the act of 1890, in leaving the matter of the authori-
zation and construction of bridges over navigable waters wholl}^ within
States entirel}' to the jurisdiction of the State, except in so far as to
require the approval by the Secretary of War of the location and plan
of the bridge, indicates that Congress did not desire to exercise any
further control over the subject. So, upon an application for the
approval b}" the Secretary of War of the plans of a bridge over the
Harlem River which is wholh" within the State of New York, held
'See act of Congress approved Dec. 17, 1872 (17 Stats., 398), as amended bv act
approved Feb. 14, 1883 (22 Stats., 414).
^See 20 Opins. At. Gen., 488, and Lake Shore and Michigan Southern Ry. Co. v.
Ohio, 16.0 Y. S., 365. The intention of Congress is more clearly expressed in section 9
of the River and Harbor Act, approved March 3, 1899 (30 Stats., 1151), which, after
making it unlawful to construct any "bridge, dam, dike, or causeway" over any
navigable water of the United States until the consent of Congress thereto shall have
l)een obtained, &c., sijeciflcally provides: "That such structures may be built under
authority of the legislature of a State across rivers and other waterways the navigable
portions of which lie wholly within the limits of a single State, provided the location
and plans thereof are submitted to and approved by the Chief of Engineers and by
the Secretary of AVar before construction is commenced."
I'niler date of Sept. 25, 1899, the Secretary of War held that this section does not
authorize the Secretary of War or the Chief of Engineers to approve the plans for a
bridge or other structure which would be an obstruction to navigation liable to be
proceeded against under the other sections of the act or of the statutes theretofore
existing; that the intent of the section appears to be to commit to the States the
determination of the question whether or not there should be a Ijridge at any pai'-
licular place over navigable waters wholly within the State, and to conunit to the
Secretary of War the protection of navigation against obstructions by such a bridge.
170 BRIDGE.
that the fact of the unusual importance of this stream, and of its imme-
diate connections with great interstate waterwa3"s and the sea, did not
except it from the jurisdiction of the State under the statute or make
necessar}' an}' special or additional legislation hv Congress for the
authorization or control of its system of bridges. 53, 354, May^ 189'2.
617. As the object of this legislation is to protect the naviga))le waters
of the United States from unreasonable obstructions, held^ that it should
not be construed to authorize the location and plan of a bridge which
would have the effect of stopping navigation at the point where it is
to l)e constructed. Card 5863, Fefyruary^ 1899.
618. Where the act of a State legislature required a drav\ and the
plan of the bridge submitted did not provide for one, held., that there
being no State authority for the construction of the bridge as proposed,
the Secretary of War was without jurisdiction to approve the plans
presented. Card 1443, Ju7ie, 1895.
619. The street railway companies of Duluth, Minnesota, and Supe-
rior, Wisconsin, applied for permission to construct a temporary
structure of piles and pontoons across the St. Louis River between
Minnesota and Wisconsin, the structure to be put on and through the
ice after navigation had entirely closed and to be removed before the
opening of navigation in the spring. Held., that the structure was not
a bridge within the meaning of the legislation on the subject and that
the Secretary of War had authority to grant the permission requested.
Card 705, Decetrd)ei\ 189 J^.; Novemhet\ 1895., and Noveriiher., 1896.
620. Where a special statute (act of Congress), authorizing the erec-
tion of a bridge over navigable water by a railroad corporation named,
provided that the bridge should not be commenced till the company
should submit for approval by the Secretar}^ of War a certain plan
and design with designated particulars and specifications, Jield that the
authorit}^ of the Secretary was thus restricted, and that he could not
lawfully act and approve till the data described were submitted.
30, 29, January, 1889; C, 163, 3fay, 1890.
The application for the approval must be accompanied by the par-
ticulars specified in the act; otherwise the Secretary has no jurisdic-
tion. Here the map and plan submitted failed to show the character
of the structure, as also the full shore line and the direction and
strength of the current, and gave only partial soundings. 43, 25!>,
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>rld<jes, by requiring their alteration, &c., do not empower
the Secretary of War to resort to military force to effect the purpose.
They leave the execution of their provisions to the law officers and the
courts. They make it the dut}^ of the Secretarj^ of War, whenever
the owners or responsible parties, after having been notified to do so,
neglect to so alter a bridge as to abate the obstruction, to apprize the
Attorne}' General who is thereupon required to initiate the proceed-
ings specified in the statute. 42, 85, Jidy, 1890.
633. Under the act of August 11, 1888, it was advised — though the
statute did not require it — that the Secretary of War, beir.g consti-
tuted judge in the first instance, would properly give the corporation,
&c., owning or controlling a bridge an opportunity to be heard, and
not decide the question of obstruction or alteration upon the report of
the engineer officer alone. 35, 166, Septemher, 1889. But it was also
Jteld that the notice was sufficientl}^ specific, under the law, though it
did not indicate how the proposed alteration was to be made; that the
Secretary of War indeed was not empowered to prescribe Jicnn the bridge
should be altered, but that the responsibility for the proper alteration
was wholly upon the corporation. 28, 14, JVovej/Jje/', 1888; 35, 265,
Septanher, 1889.
634. The act of September 19, 1890, sec. 4, however, amended the
provision as to notice in the act of August 11, 1888, s. 9, by requiring
that the notice, to be given to the person or corporation, owning or
controlling a bridge which obstructs navigation, to so alter it as to do
away with the obstruction, "shall specify the changes required to be
made," such party being first given a "reasonable opportuuit}^ to be
heard." 49, 72, September, 1891.
^SOpins. At. Gen., 512.
BRIDGE. 175
635. The power expressly vested in the Secretary of War by sec. 4
of the act of September li», 1890, to determine whether a bridge is
an obstruction to navigation, is of a judicial nature, not ministerial
merelv.^ The law makes him the agent of the United States for the
purpose and vests him with a specific discretion." I/eld that the power
devolved pertained to him alone and could not legally be exercised by
the Assistant Secretary of A^^ar. C, 135, 3Iay, 1890.
636. Especially in view of the fact that the giving of the notice to
alter, under the act of 1890, s. 4, is a proceeding preliminary and
necessary to the fixing of criminal liability upon a failure to make the
alteration, such notice should be strict and precise.^ It should set
forth the situation and character of the bridge so as clearly to identify
it, stating the name of the owner, &c. , and specif 3^ fully the change or
changes "'required to be made" as to height, width of span or draw-
opening, &c. ; and it should appear from the notice, or in connection
therewith, that the party has had a "reasonable opportunity to be
heard." 43, 431, N<:)veml}ei\ 1890.
637. Before the notice to alter a bridge is given, the party owning or
controlling the same is entitled, under the act of 1890, s. 4, to be heard
on the changes specified in the notice as well as on the time in which
they are to be made; and unless an opportunity for such hearing has
bee- given, the party will not be liable to the penalties specified in sec.
5, of the said act. Cards 798, Decemher, 1891^; 1511, Novemher, 1895.
638. Held, that the provision of the act of August 11, 1888, as to the
proceedings to be taken against a corporation refusing after due notice
under that act to alter a bridge, was repealed by that of the act of
September 19, 1890, and that such corporation could not now be prose-
cuted without a new notice under the existing statute, followed by a
failure to comply. An offender cannot be punished under a penal act
1 In U. S. V. Rider, 50 Fed. Rep., 406, it was held (by Sage, U. S. Dist. J.) that this
section was unconstitutional in delegating to the Secretary of War "powers exclu-
sively vested in Congress." See, however. Rider r. U. S., 178 U. S., 2.51. Atthe trial of
this case in the circuit court there was a division of opinion, ])ut the presiding judge
charged the jury that Congress had the constitutional power to confer upon the
Secretary of War the authority to determine when a bridge, such as the one in ques-
tion, was an unreasonable obstruction to navigation, and on writ of error to the
Supreme Court the judgment was reversed, without deciding this question, on the
ground that the municipal officers controlling the bridge did not have public moneys
wiiich cduld lawfully be ap])lied to the purpose and could not obtain such moneys
within the time specified in the notice. In an able and exhaustive opinion by Act-
ing Atty. (tcu. Dickenson, dated Oct. 24, 1896, it was held that this act was not an
unconstitutional delegation of legislative function; that Congress is not required to
consider each case of alleged obstruction, but may generally define the offence and
leave the facts to be determined by a court or special tribunal. 21 Opins. At. Gen.,
430, and authorities cited.
^Miller r. INlayor of New York, 109 U. S. 385, 393.
^" A {)urely statutory authority or right must be pursued in strict compliance with
the terms of the statute." Bishop, Written Laws, § 119.
176 BRIDGE.
which has expired or been repealed prior to conviction.^ So, advised
that proceedings initiated under the act of 1888 be commenced de novo.
43, 431, Novemler, 1890; 49, 72, September, 1891. Under the act of
1890, s. -1, it is made the duty of the Secretary of War to initiate pro-
ceedings (by notifying the proper district attorney) onl}' in case of
alterations, not made, of completed hridges; as to other obstructions,
the duty to enforce the provisions of the act is devolved upon the
"officers and agents" specified in s. 11. 52, 343, March. 1892.
639. Where, after notice to alter a bridge, as constituting an obstruc-
tion to navigation, the bridge compan}^ owning the same has failed,
and the franchise has passed into the hands of a receiver.^ the proper
method of procuring the alteration to be made is by motion in the
proper court for an order requiring the receiver to make it. 37, 404,
January, 1890. In such a case neither the owner nor the receiver can
be made personally amenable for failure to alter. 60, 118, June,
1893. A similar proceeding is to be pursued where a receiver has
been appointed before notice or before the obstruction was developed.
Thus where a bridge, on the line of a railroad, which had been placed
under receivers, was discovered to be an obstruction to navigation
because of having no draw, advised that the Secretary of War apply to
the Attorney General to have the case brought by the proper motion to
the attention of the court by which the receivers were appointed,
whose duty it then would be to order the receivers to make the alter-
ation out of the income accruing from the operation of the road.*^ And
held that it would not be necessary" to notify the receiver as such, since
without the order of the court he could not legally incur the requisite
expense for the purpose.'^ 60, 118, supra; 62, 55, October, 1893. And
see 64, 399, April, 189 J^.
640. Where a bridge has been reported an unreasonable obstruc-
tion to navigation the Secretary of War may proceed under sec. 4 of
the act of September 19, 1890, to give the owners thereof a hearing
with a view to notifying them to make the necessar}^ alterations.
But if in the meantime the owners waive hearing and notice and sub-
mit plans of alterations, the Secretary may approve the same; and his
approval will in effect prescribe that the bridge be altered as indicated
by the plans. This procedure has been followed in a number of cases.
Card 1157, March, 1895.
641. The Department of Public Works of the City of New York
requested that the necessary steps be taken to permit that department
to close the drawbridge across Harlem River at Madison Avenue for
' Endlich, Interpretation of Statutes, 435.
'' See U. S. V. St. Louis, A. & T. R. Co., 43 Fed. Rep., 414.
•^ Cowdrey r. Galveston, &c., R. Co., 93 U. S., 352.
CADET. 177
not to exceed two weeks to make needed repuirs. Remarked ^ that
there is no statute of the United States which in terms empowers the
Secretary of War to authorize the closing of a drawl^ridge during its
repair, l)ut recommended that the applicant be advised that no steps
would be taken hy the War Department in regard to the bridge as an
obstruction to navigation during the time necessar}'' for its repair.
Card 3299, June, 1897.
BURGLARY.
642. Burglar}" at common law is the breaking and entering of a
dwelling in the night time with intent to commit a felony. Where
a soldier was brought to trial upon a charge of "Burglary," with a
specification setting forth that he forcibly entered the quarters of an
officer in the night, with intent to steal, and it appearing that he
entered through an o/jeii window, Jidd that, although the offence
shown was not a burglary in law — the essential element of a breaking
l>eing 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 Unite<l States r. Cornell, 2 :\Iason^ 60; 6 Opins. At. Gen., 577, 57S; 7 id., 628,
629; 8 III., 30, 104, 387. A Statt' may give such i-onsent by a single general act, prospect-
ive in terms, and covering ail cases of future purchases by the I'nited States. Note,
for example, the act of the legislature of Texas of April 4, 1871, remarked upon in
the opinion of the Attorney General of Ai>ril 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.<td that, notwithstanding the fact that their act had
been thus determined to have been illegal, an application made by
them to Congress for an appropriation to defray the amount of the
judgment, would properly be favored by the Secretary of War.- XLI,
433, October, 1878.
747. For criminal or tortious acts committed hy soldiei-s against the
property of citizens, the United States is not responsible." The rem-
edy is by prosecution of the individual offender, or suit for damages.
Z%.?.V?.'FJjruanj. 1890.
748. Enlistment in the regular anuy of the United States does not
1 Bates 1-. Clark, 5 Otto, 2a5.
* By the acts of March 3, 1863, c. 81, s. 4; 'Slav 11, 1866, c. 80, s. 1 ; and March 2, 1867,
c. 155. the order or authority of the President is made a defence in any court of the
United States or of the States, to any prosecution or suit instituted against an officer
or soldier of the army, for an arrest, trespass, or other act made or done by such
authority, during the war of the Rebellion. Under these Statutes it would appear
that an officer or soLiier could not be made liable to punishment or damages for any
legitimate act performed during the war in the line of his duty c>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, F<l>ruanj, 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(<f 1901), when in the ju(l<^ment of the department commander neces-
sary to prevent suffering.
CLOTHING ALLOWANCE. 231
disc'liai'o-e forfeit hi.s right to clothino- already issued to him, and the
same may properly be delivered to him if his clothing account is not
overdrawn. Card 2107, March, 180G.
826. Where a soldier discharged without honor for fraudulent enlist-
ment had overdrawn his clothing allowance to the amount of $31.92,
but left in the hands of the militar}' authorities clothing of the value
of $31.16, advised that this clothing be turned over to the proper
quartermaster, and that the money value be credited on the man's
clothing account. Card 2113, March., 1S06. The clothing in excess
of the allowance for the time a soldier has served should 1)0 considered
as government clothing advanced to him, and, on the rescinding of his
contract for fraud in his enlistment, he should 1)e required to return
the same. Card 7782, March, 1900.
827. A soldier was tried for fraudulent enlistment and sentenced
to be dishonorably discharged with forfeiture of all pay and allow-
ances and confinement for six months. ILJd that clothing which
had previously been issued to him could not legally be withheld from
him unless he was to the extent of its value indebted to the United
States on his clothing account. Card 3803, January, 1808.
828. Under Sec. 1302, Rev. Sts., ''the money value of all clothing
overdrawn by the soldier beyond his allowance shall be charged against
him,"" and Sec. 121)8 provides for gratuitous issues to replace clothing
destroyed to prevent contagion, l)ut there is no other statutory authority
for gratuitous issues to enlisted men. Under Sec. 1296 the " President
may prescrilie the uniform of the arni}^ and quantity and kind of cloth-
ing which shall ])e issued annuall}^ to the troops of the United States;"
and under this authority tables are issued showing the price of clothing,
the allowance in kind to each soldier for each year of his enlistment, thus
giving the money value of his clothing allowances, and these are changed
from time to time in orders. Pars. 1189 and 1191, A. R. (1313 and 1315
of 1901), provide for gratuitous issues of certain articles to troops
serving in extremely cold climates, such articles to be charged to the
soldier only in case of loss or damage other than from fair wear and
tear; and these regulations while purporting to provide for gratuitous
issues may be treated as prescribing an increase of the allowance under
the conditions named in the regulations. Where, therefore, the depart-
ment commander directed a gratuitous issue of one suit of khaki uni-
form, one campaign hat, one pair of leggins and one pair of shoes to
each enlisted man who was engaged in the campaign which ended with
the attack upon and fall of j\lanila, P. I., on August 13, 1898, presum-
ably to replace articles lost or damaged mider the extraordinar}- con-
ditions of the campaign, the issues to be made upon properly approved
requisitions, &c.. it was hc/d that there was no legal ol)jection to a
232 COLLEGE, ETC.
reg-ulation providing for an increase in the clothing allowance to
replace articles thereof which have been practically destro3'ed in carry-
ing on a {-ampaign under the conditions of the campaign in question,
and that the regulation could be made retroactive to cover issues
already made with respect to such conditions. Card 5862, February^
1899. '
COLLEGE, ETC
829. Sec. 1225, Rev. Sts., provides for the detail of army officers
at colleges, etc. The provision of this section that "the number of
officers so detailed shall not exceed thirty at any time," means that
onlv thirty officers in all — active and retired — shall be so detailed.^
XXXVIl, 201, Decemher, 1875.
830. ITeliL that the term " established college or university within the
United States," could properly and safely be construed as including
onl}^ State universities or incorporated public institutions; that, in
view especially of the fact that onlv thirty colleges, &c., could be pro-
vided with arms, military i^rofessors, &c., at one time, it could not be
supposed that it was contemplated hj Congress that the provisions
of the statute should extend to private or unincorporated schools or
academies. XLI, 496, January, 1879; XLII, 173, February, 1879.
831. The act of Sept. 26, 1888, c. 1037, in amending Sec. 1225, Rev.
Sts., authorizes the detail of officers and issue of arms to "any estab-
lished militar}- institute, seminary or academy, college or university."
Held., that the term "established," construed in connection wath the
terms of the previous legislation on this subject, was to be interpreted
as including incorporated institutions or those established by law,
such as State institutions, and that an unincorporated private school
' General Rtiles prescribed l)y the President, in accordance with the ])rovisions of
Sec. 1225, Rev. Sts., and relating to "Daties of Officers," "Organization and Disci-
pline," "Course of Instruction," &c., together with the laws governing the subject,
are published in G. O. 70, A. G. 0., Dec. 11, 1897.
2 The nnin])er has since been extended by the acts of Sept. 26, 1888 (25 Stats., 491 ),
Jan. 13, 1891 (26 Stats., 716), and Nov. 3, 1893 (28 Stats., 7) ; and the detail of retired^
officers, without increased jiav from the IT. S., is authorized by Sec. 1260, R. S. ; act of
May 4, 1880 (2 1 Stats. , 11.3) ; aiid act of February 26, 1901 , amending Sec. 1225, Rev. Sts.
A retired oliicer detailed for service at a college under Sec. 1260, Rev. Sts., receives
no additii mal compensation from the ( iovernment; if detailed under the act ai)proved
IVIay 4, 1880, he may receive from the institution to which he may be detailed the
difference between his retijred and full pay but shall not receive from the United States
any ad<litional pay or allowance. Retired officers so detailed are in addition to the
number of details authorized l)y Sec. 1225, as amended by act of Nov. 3, LS93.
Retired officers who, ni)on tlieir own application are detailed to educational insti-
tutions iu accordance with the ])rovisions of theact of November 3, 1893, are included
in \\w numl)er of details antliorizcd by that act (100 from the Army) and are entitled
to tlie full pay of their rank; (6 Goni])."^ Dec. 124, Aug. 15, 1899), but not to connnuta-
ti(jn of quarters. 6 Comp. Dec. 50(5, Nov. 23, 1899. See j^rovisiona of the act of_ Feb-
ruary 26, 1901, supra, in regard to the payment by the "schools" of commutation of
quarters to retired officers detailed thereunder.
COLLEGE, ETC. 233
or other institution of learning- was not to be regarded as "established"
in the sense of this statute. Thus held that an unincorporated academy,
owned and controlled by a partnership, was of the class of private
institutions to which a detail of an officer as professor, or an issue of
ordnance, could not legally be made. 64, -±42, Ajyril., ISOJf.; 65, 67,
May, 1S94.
832. Held that the High School of Bridgeport, Conn,, which, as such,
had no officer detailed for it as professor under Sec. 1:225, Rev. Sts.,
but was allowed to avail itself of the occasional services of the officer
of the army detailed as professor at Yale College, New Haven, was
not entitled to an issue of arms under the statute. 41, 308, Jufie, 1890/
Card 3271, June, 1897.
833. It is only colleges, &c. , for which officers of the army have been
detailed to act as professors, &c., under this section that the Secretar}^
of War is authorized, by the same section, to supply with arms for
the instruction of their students.^ XXXVII, 201, December^ 1875.
834. The Secretary of War is authorized to issue arms to any college,
&c., where either an army or navy officer has been detailed under the
provisions of Sec. 1225, Rev. Sts., as amended by the act of Sep-
tember 26, 1888.' 38, 201, January, 1890.
835. The official of the college, &c., to whom the ordnance stores
issued under this section are entrusted, may properly be required to
render the returns indicated in Sec. 1167, Rev. Sts., which directs that
all "officers, agents or persons," receiving or entrusted with ordnance
stores or supplies, shall make certain regular returns of the same
according to forms and rules prescribed by the Chief of Ordnance with
the approval of the Secretary of War. XLII, 282, 31ay, 1879.
836. It has been the general practice of the War Department under
Sec. 1225, Rev. Sts., as amended b}- the act of September 26, 1888, to
refuse applications for arms, etc., except when made b}- some "estab-
lished militar}^ institute, seminary or academy, college or university,"
to which an arm}' (or naval) officer had been regularly detailed; and
this practice is believed to be in accordance with a fair and reasonable
interpretation of the statute referred to.^ Card 3271, June, 1897.
' By act of Sept. 26, 1888, amending Sec. 1225, R. S., and act of Aug. 6, 1894 (28
Stati?., 235), ordnance and ordnance stores may also be issued to institutions at which
retired officers are detailed under the provisions of Sec. 1260, R. S., and act of May 4,
1880 (21 Stats., 113).
'^ The number of navy officers detailed under existing law must not exceed ten. Act
of Novenil)er 3, 1893.
^In 1885 arms were issued to the Washington High School by the Secretary of
Wur; l)ut subsequently under date of November 25, 1890, the then Secretary held,
u])()n an application from the same school for 100 cadet rifles, that there was no
autlioi'ity of law for the issue and declined to follow the precedent of 1885. At the
same time he recommended Congressional action in the matter and Congress by joint
resolution ai:)proved Feb. 5, 1891, authorized the issue.
234 COMPANY COMMANDER.
837. Where it was found that arms issued by the Government to an
institution were, through carelessness, damaged in a stated amount,
advtSifl, that, in default of paj-ment, if it be desired to sue for the
damages, the bond and sureties ma}' be ignored, and suit brought
directly against the owners of the institution (academy) alone, or suit
may be brought on the bond; or if it be decided to demand, under the
regulations of the War Department relating to the issue of arms to col-
leges, &c., the return of the arms, and the same were not returned in
thirty days, the bond could be put in suit and the claim for damages
included therewith. Card 2902, Fehruary, 1897.
COMMISSARY SERGEANT.
838. Sec. 1142, Rev. Sts., authorized the appointment of commis-
sary sergeants from "sergeants of the line of the Army who shall
have faithfully served therein five years, three years of which in the
grade of non-commissioned officers." A\ here an applicant for appoint-
ment had served five years, about two and a half years of which as
non-commissioned officer, and six months as commissioned officer of
United States Volunteers, it was held, independently of the question
whether the service in the volunteers could be counted in any event,
that service as a commissioned officer could not be computed as service
in the grade of non-commissioned officer expressly required by the
statute. Card 6793, August, 1899.
COMPANY COMMANDER.
839. Extract from an endorsement of the Judge- Advocate General,
in sul)mitting to the Secretary of War a communication (concurred
in by the Judge-Advocate General) from Brig. Gen. E, O. C. Ord,
commanding Dept. of Texas.
" Though 1 am aware of no law m terms prohi])iting a company com-
mander from delegating to a non-commissioned officer so important a
part of his authority and duty as the entertaining in the first instance
of the complaints and recjuests of the men of the company, I can but
consider such a delegation to be at variance with the principle and
system of our military organization. Further, such a practice, as it
appears to me, must tend to render commissioned officers negligent
and irresponsible, and non-commissioned officers arbitrary and over-
bearing. Indeed I can conceive of nothing that would sooner spoil a
good sergeant than to phice him in a position to detei-mine at his
discretion whether the complaints of his inferiors should be entertained
COMPENSATION FOR EXTRA SERVICES. 235
by his superior, and to color them at will when transmitted. Thus,
though the practice may, in some instances, have been foiuid convenient
and innocuous, its etf'ect in general must, I think, lie prejudicial to
the best interests of the service." ' XLII, 273, 3Iay, 1879.
COMPENSATION^FOR EXTRA SERVICES.
840. Upon an application by a clerk of a bureau of the War Depart-
ment to be paid an amount in addition to his regular salary, as a com-
pensation for services performed by him for a certain period as acting
chief clerk, held., in view of the provisions of Sees. 1764: and 1765,
Rev. Sts., that such additional compensation could not be allowed except
by the authority of Congress.' XXXIX, 643, August., 1878.
841. Held that a soldier, who was employed in the capacity of an
acting assistant surgeon for a certain period in time of war, could not
legally be allowed, by the Secretary of War, for such service, an}^
extra compensation (other than the extra pay provided for ' ' constant
labor" by Sec. 1287, Rev. Sts.) without a violation of Sec. 1765, Rev.
Sts., but that Congress alone could authorize the same. XXX, 456,
June., 1870. Similarly held that a soldier could not be allowed a com-
pensation, additional to his regular pay, for special services claimed
to have been rendered as a spy or scout during the civil war.
XLII, 566, April, 1880.
842. IL^'ld that the existing law prohibiting the payment of extra
compensation to salaried officers of the United States refers to pay-
ments from the Treasury of the United States, and did not affect the
right of an officer of the army to receive from a State the salar}- of a
State office exercised by him during the operation of the Reconstruc-
tion Laws (XXX, 159, March., 1870); or to receive the amount of a
reward offered by the Governor of a State for the performance of
certain public service. XXXIV, 388, July, 1873.
843. In construing statutes (Sees. 1763-1765, Rev. Sts.) restraining
the Executive from giving dual or extra compensation, courts have
aimed to carr}^ out the legislative intent b}^ giving them sufficient flexi-
bility not to injure the public service and sufficient rigidity to prevent
executive abuse. ^ These statutes can by no fair interpretation be held
to embrace an employment which has no affinity, or connection, either
in its character or hj law or usage with the line of his official duty,
or where the service to be performed is of a different character and
^Compare remarks of reviewing officer in G. C. M. O., 26, Dept. of the Columbia,
1879; do. 2, id., 1880.
^ Compare Hovt r. United States, 10 Howard, 109, 141; United States v. Shoemaker,
7 Wallace, 338, 342; Stansburv r. United States, 8 Wallace, 33.
■'Landram v. U. S., 16 Ct...Cls., 74, 82.
236 COMPENSATION FOR PROPERTY, ETC.
for a different place and the amount of compensation is regulated by
law.^ Taking- the sections all together, the purpose of the legislation
was to prevent a person holding an office or appointment for which
the law provides a definite compensation Iw way of salary or otherwise,
which is intended to cover all the services, which, as such officer, he
mav be called upon to render, from receiving extra compensation, addi-
tional allowance, or pay for other services which may be required of
him either by act of Congress or by order of the head of his Depart,
ment, or in any other mode, added to or connected with the regular
duties of the place which he holds; but that thej^ have no application
to the case of two distinct offices, places, or employments, each of
which has its own duties and its own compensation, which offices may
be held by one person at the same time. In the latter case he is, in
the eye of the law, two officers or holds two places or appointments,
the functions of which are separate and distinct, and according to all the
decisions, he is in such case entitled to recover the two compensations.
In the former case he performs the added duties under his appoint-
ment to a single place, and the statute has provided that he shall receive
no additional compensation for that class of duties unless it is so pro-
vided b}' special legislation." Where therefore the disbursing clerk of
the War Department (salary, $2,000) performed certain clerical duties
for the Gettysburg National Park commission, which were separate and
distinct from his duties as such disbursing clerk, it was held that he
could legally be paid for such extra services from the appropriation for
the Gettysburg National Park. Card 3747, December, 1897.
COMPENSATION- FOR PROPERTY TAKEN FOR PUBLIC USE.
844. The Constitution declares that private property shall not be
taken " for public use without just compensation." It does not provide
or require that compensation shall actually be paid in advance of
occupancy of land to be taken. But the owner is entitled to reasonable,
certam and adccjuate provision for obtaining compensation before his
occupancy is disturT)ed.^ When there is no provision for compensation
private property should not be taken against the consent of the owner
for pu])lic use. Thus Jicld that condemnation proceedings against land
adjoining the Presidio of San Francisco, California, should not be insti-
tuted prior to an appropriation by Congress. Card 3231, May, 1897.
845. The fact that a person who has perfected an invention is an
'Converse v. U. S., 21 Howard, 468, 470, 473; U. S. v. Brindle, 110 U. S., 688, 694;
U. S. r. Shoemaker, 7 Wall., ;«8; Meigs r. U. S., 19 Ct. Cls., 497; 15 Opins. At. Gen.,
608.
-U. S. r. Saunders, 120 U. S., 126,129, 130; 5 Comp. Dec, 9; (i hi., 683.
^Cherokee Nation /■. Kans. Ry. Co., 135 U. S., 641,659.
CONTRACT. 237
officer or employee of the United States can affect in no manner either
his right to procure a patent for said invention or to dispose of the
same or of its use to the United States, or the authority of the proper
department of the Government (if furnished with funds applicable
to the purpose) to purchase such invention or its use, and pay a
reasonable compensation or royalty for the same/ So, if the Govern-
ment, in the absence of any contract, takes and uses in the military
or public service an invention which has been patented by an officer,
soldier, or employee connected with the army, such officer, &c., has,
under the provision of the Vth Amendment of the Constitution, the
same right to a "just compensation" for such use that any civilian
would have under the like circumstances."^ If indeed, while perform-
ing his own proper duties, the officer, &c. , in experimenting, framing
models, &c., for his invention, has availed himself of the tools or
materials of the government or other facilities afforded by a govern-
ment workshop, &c. , this fact is to be considered in connection with
the question of the quantuni of the compensation to be awarded him.
XXI, 413, May, 1SG6.
CONTEACT.
846. Sec. 3709, Rev. Sts., provides, generally, that "all purchases
and contracts for supplies or services in any of the Departments of
the Government, except for personal services," shall be made by adver-
tising for proposals "when the pi(Mie exigeficies do not require the
immediate delivery of the articles or performance of the service."
Exigencies growing out of a state of war, or hostilities with Indians,
were probably mainly had in view, and it is exigencies of this class
which have been considered in the adjudged cases in the Supreme
Court and Court of Claims.^ It is clear however that other exigencies
may exist requiring that contracts or purchases be made at once or
without the delay incident to advertising for proposals. Thus a loss
of stores, structures, &c., on hand, caused by an achis Del or v/'s major,
as fire, storm, freshet, or a sudden riot or violent disorder; or a loss
of supplies occasioned b}- the neglect of military subordinates in
charge; or a failure of a contractor to fulfill a contract for supplies,
' See case of Burns v. United States, reported in 4 Ct. Cls. 113, and 12 Wallace, 24''.
^See Report of Commission on Ordnance; Ex. Doc. 72, Senate, 37th Cong. 2d S g.,
pp. 569-571, (case of Rodman cannon.)
^^See United States v. Speed, 8 Wallace, 83; Eeeside v. United States, 2 Ct. Cls.,
T'. United States, 5 /^.,302; Wilcox i\ United States, id., 386; Cobb r. United States,
7 (■(/., 470, and 9 id., 291; Thompson r. United States, id., 187; McKee v. United States,
12icZ.,504.
238 CONTRACT.
transportation, or other service — might properly be regarded as con-
stituting an "exigency"'"' under the statute, if of such magnitude or
injurious consequence to the arm}' as to necessitate an immediate making
good of the deficiency. ^ The general rule, however, of the statute in
requiring a notice and invitation to the public as a preliminary to the
awarding of a contract, is founded upon a sound and well-considered
public policy, and exceptions thereto, especially in time of peace,
should be recognized as admissible only where, if the rule were
strictly complied with, the public interests would manifestly be most
seriously prejudiced. XXXVII, 464, AprU, 1876; XXXIX, 527,
May, 1878.
847. Thus, where a contractor failed in the performance of his con-
tract, at a critical stage of an important and much-needed public work,
and at a time of the year when, if the dela}^ were incurred of advertis-
ing anew, there would be risked a loss of the appropriation; and a
greatl}' increased charge to the United States, as well as serious
embarrassment to the military service, would be involved — held that the
situation might properly be viewed as an "exigency" justifying an im-
mediate contract for the continuance of the work." XLII, 339, June^
1879. But where, notwithstanding that Congress had failed to make
appropriations for the fiscal year and no extra session had been convened
for the purpose of having the omission supplied, there remained ample
time for advertising for proposals for certain contracts for supplies
before the supplies themselves would be needed, held that the circum-
stances did not justify a dispensing with the general rule prescribed bj'
the statute, cspecialh' since, by the authority of Sec. 3732, Rev. Sts.,
contracts for these supplies could legally be made in the absence of an
appropriation. XXXIX, 527, May, 1878.
848. The fact that a contractor for work can not complete his con-
tract without losing money and desires to abandon it, does not consti-
tute a "public exigenc}'" in the sense of Sec. 3709, Rev. Sts.* L, 76,
Frhruary, 1886.
849. Except in the case of an existing public exigency, a contract
for supplies in the War Department or military branch of the serv-
ice is to bo preceded by an advertisement for proposals as directed in
Sec. 3709, Rev. Sts. This advertisement is not a mere facility for the
convenience of an executive department, which may be waived at
discretion, but an essential proceeding prescribed by the statute as
• See G. 0. 10 of 1879, §§22-25, i)p. 14-15; do. 72, id., p. 52; do. 40 of 1880, p. 58; also
McKeer. United States, 12 Ct. Cls., 504, 529-530.
'•'See 3 Coini). Dec, 175; 5 id., M.
Hi. (). 10 of 1879; 2 Opins. At. (Jen., 257; 3 id, 437; 10 id., 28.
As to what shall constitute a public exigency, or authorize the procuring of sup-
plies and the engaging of services without advertisement, see 566, A. R. (645 of 1901) .
CONTRACT. 289
a condition to the exercise of the authority to enter into a contract for
the United States. Thus enjoined, no omission or evasion of this pre-
requisite, however convenient such an omission or evasion may be,
can legally V)e allowed.^ So, hdd that it was no excuse for a non-
compliance with the statute, ))y a quartermaster, that his contracts
(made without advertisement) had been made with the most relialjle
parties and to the advantage of the United States. XXXIX, 8i,
December^ 1876. And Jield that the requirement as to advertising
for proposals must be complied with in contracting for a supply of
articles purchased for trial, equally as if the contract were for the
regular yearly supplies. XXXVII, 464, April^ 1876.
850. The Army Appropriation Act of July 5, 1884, provides that,
in purchasing supplies for the arm}" under the Quartermaster and
Commissary Departments, the award shall be made to the lowest
responsible bidder.- When the award for furnishing such supplies
was not made to the lowest bidder, though entirely responsible and
competent, but a higher bidder was preferred, held that the contract
was without binding force, 18, 265, August, 1887.
851. Where several bids are made in response to the advertisement,
the Secretary of War may, for cause, refuse to authorize a contract
with an}" of them. In accepting a bid he must be governed hy a con-
sideration for the public interests. If the lowest bidder, for example,
is not furnished with the proper facilities to perform the proposed
work — has not an available plant — he may be passed over for the next
higher provided the latter be competent. 58, 26, February., 1893.
852. A contract for the printing for the headquarters of the military
departments should be awarded to the lowest responsible bidder who
^See 6 Opiny. At. Gen., 406; 10 id., 28; also opinion of the Solicitor General of
March 20, 1876 (looping. At. Gen., 5o8), wherein, in holding contracts made Avithont
advertising to be not lunding on the United States, he dissents from the opinion of
Atty. Gen. Bates, in 10 Opins. , 416, to the effect that while an absence of the prescribed
advertisement will render illegal and inoperative an unexecuted contract, the Gov-
ernment cannot, on account of such omission, rescind, to the damage of a con-
tractor, a contract entered into by him in good faith and partly performed. In a
later opinion of April 27, 1877 (15 Opins., 235), the Attorney General refers to the
question, whether the provision of Sec. 3709, Rev. Sts., requiring that contracts in
general shall lie preceded by advertisement, is mandatory or only directory, as oiie
which has been much discussed (see, for example, the reference to this question in
Fowler t'. United States, 3 Ct. Cls., 47), but is not required to be decided in that opin-
ion. In Sclineider v. U. S.,19Ct. Cls., 547, 551, it is held that in the absence of
any exigency in fact or one determined to exist this provision is mandatory, and a
contract made in violation of it is void. Whatever may be the true construction of
this Section, it is clear that no othcer of the army, in the absence of express author-
ity to do so from the Secretary of War, t'an be justified in omitting to comply with
the provision in regard to advertising.
As to the manner of advertising in certain cases, see 1 Conq). Dec, 363; 2 id., 632;
3 id., 175; 5 Id., 4,66.
^See Army Appropriation Act of March 2, 1901, for the most recent legislation on
this subject.
240 CONTRACT.
is also a practiciil printer and in a position to perform the worlv unaided
by the Government. 61, 33.5, September^ 1893.
853. .The discretion of determining when a "public exigency" within
the meaning of Sec. 3709, Rev. Sts. and par. 566, A. R. (645 of 1901),
exists, is vested in the highest authority whenever tlie circumstances of
the case admit of it.^ Where, however, the Secretary of War should
have authorized an exigency purchase before it was made, he may, if
in his judgment the public exigency existed, approve the expenditure
after it has been made. Card 3481, Septemher, 1897.
854. Under date of March 21, 1898, a contract was made, inte7' alia.,
for certain repairs to a barrack building at Fort Monroe, Va., the
work to commence on or before jNIarch 30, 1898. By reason of the
war with Spain, the contractors w^ere not permitted to begin the
repairs until June 29th following. They were also required bv the offi-
cer in charge of the work to do certain extra work. Ileld, that the
circumstances of the case created an emergency calling for the addi-
tional work, or at any rate, rendered the work such that only these
contractors could properly perform it, and that therefore no advertise-
ment was necessary. And further held that while the amount of
compensation for the additional work was not agreed upon in advance,
the contractors were entitled to what the materials and service were
reasonably worth. ^ Card 6901, March, 1899.
^ As to the authority who is to decide whether there exists such an exigence' as is
contemplated by the statute, the Supreme Court, in United States r. Sjx'ed, .S Wal-
lace, 83, has held that it is "the officer charged with the duty of procuring supplies
or services who is invested with this discretion." This description is rather general,
nor is the term "the purchasing officer," by which the Court of Claims explains it,
in Thompson r. Ignited States, 9 Ct. Cls., li)6, a much more precise definition. It is
clear, however, that a subordinate officer cliarged with the duty of being the imme-
diate representative of the United States in a contract or purchase should not, in
general, venture to dispense with advertising, on the theory of the existence of a
public exigency, in the absence of instructions or orders from a proper superior.
Nor, on the other liand, will a superior officer, in entering into a contract for his
command or branch of the service, properly assume that an "exigency" exists
authorizing him to dispense with the statutory forms, when the period is time of
peace and no imperative necessity exists for the immediate delivery of the supplies
or performance of the service proposed to be contracted for. It is to be noted that
the cases both of Sjieed and Thompson related to contracts entered into during the
civil war. In the instructive opinions of the Attorney General on the "Fifteen per
cent. Contracts" of Ai)ril 27 and May 3, 1877 (15 Opins., 235, 253), it is held that
the "exigency" contemplated by the statute can be one of tune only, and that it can
be regarded as existing only where an immediate delivery or performance is required
by a pul)lic nece.ssity.
See, however, 8 Comp. Dec, 470; 5 id., 64.
•*In a decision dated Jan. 30, ISiMi (2 Comp. Dec., 374), Comptroller Bowler said:
It is established that wiiere in good faith work has been done under an informal
contract comi)ensation therefor ui)on the l)asis of a (juaiilitiu )it('niit. may 1)e recovered
from the United States (Clark v. IJ. S., 95 U. S., .5.39); and it was therein held that
in the absence of other evidence, the contract })rice might lie considered sufficient
evidence of the value of the services rendered, and substantially to the same effect is
Solomon r. U.S. (19 Wall. 17). It has furthermore been held that where recovery
may be had upon a quantum meruit for the work and labor done under an inii)lied or
informal contract, the accounting officers of the Treasury have jurisdiction to settle
the claim. (Dennis v.V. S., 20 Ct. Cls., 1 19. ) See, also, 5 Comp. Dec, 588; 6 id., 951.
CONTRACT. 241
855. The main object of the advertiseDient is to induce a free and
open com])etition for the contracts of the government and thus to
protect the United States from fraudulent combinations and collusive
preferences in its business transactions.^ At the same time the adver-
tisement, in inviting- proposals from the public, is properly to be viewed
as ^ 2}^e(J(ie on the part of the United States that the contract will, as a
general ride, be awarded to the lowest bidder, provided he is a respon-
sible person and his l)id is a reasonable one, and provided, of course,
he complies with the existing regulations — as to bond, &c." XXX IX,
ilJ6, and XLI, 113, Fehruary, 1878. The reservation not unfrequently
added in the advertisement, that "the United States reserves the
right to reject an}' or all proposals," is simply precautionary, and
should not be, and is not, in general taken advantage of except where
the lowest bidder fails to meet the legal and proper conditions.'' A
further instance in which the United States may properly reject a bid
or bids is in a case oi fraud — as where the lowest bidder has colluded
with other bidxlers or with the representative of the United States to
impose a high price upon the government. In such a case the bids of
all bidders concerned in the fraud may properly be rejected. XXXVII,
561, JDiy, 1876.
856. An executive ofhcer, in awarding and entering into a contract
after advertisement, is not authorized to require from the contractor
a stipulation at variance with the conditions stated in the advertise-
ment, or to assent to svich a stipulation if proposed by him; — for
example a stipulation for the furnishing of a quantity of supplies
greater than that called for in the advertisement.* XXXIX, 425,
FAi'uai'xj^ 1878.
^8ee Harvey v. United State-s, 8 Ct. Cls., 506. In regard to a statute (similar to
Sec. 3709) governing the Post Office Department, the Supreme Court, in Garfielde v.
United States, 3 Otto, 246, say: "Theobject of the statute was to secure notice, * * *
that bidders might compete, that favoritism should be prevented, that efficiency and
economy in the service should be obtained."
'■'See regulations in regard to contracts, published in G. O. 10, Hdqrs. of Army of
1879, repeated and amended in G. O. 72 of same year and G. O. 40 of 1880, now incor-
porated in Articles LV and LVI, Army Regulations of 1895.
■'See par. 543, Army Regulations of 1895, as follows: "Except in rare cases when
the I'nited States may elect to exercise its right to reject proposals, contracts will be
awarded to the lowest responsible houQ. fide bidder, for furnishing a proper article,
whose i)ro])(tsal is not uni'easonable. "
*In an opinion under an act of 1843 (similar to the existing law) requiring the
letting of contracts in the narii upon advertisements for proposals, it was held by
Atty. Gen. Nelson (4 Opinions, 334) that the Navy Department was not authorized,
"in awarding the contract to the lowest bidder, to modify its terms, as proposed for,
in regard to the time of delireri/, or any other of its material elements. The obvious
purpose," he adds, "of the act in ((uestion was to invite competition in the pro-
])osals; and it ttierefore recpiires that the advertisement emanating from the depart-
ment shall particularize every thing that may essentially affect the contract. That
the time of delivery may be, in a contract of this descri])tion, a material element, the
circumstant'es connected with this case clearly evince. Xim constat, if the time had
been extended, as now proposed, on the face of the advertisement, that other and
16906—01 16
242 CONTRACT.
857. Where the advertisement calls for proposals for supplies to be
delivered at a particular ■place specified, the place of deliver}' is a
material condition of the contract invited to be bid for, and the same
should therefore be awarded to the lowest bidder engaging- to make
delivery at the plac^e designated. To prefer to such bidder another
whose bid is lower, but whose offer is to make delivery at a different
place, would l)e unauthorized and illegal, however convenient the
place named by him might in fact be to the military authorities.^
XXXIX, 425, and XLl, 113, F>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<i!», Hex. Sts., the general law on the sub-
ject, and un(U'r such construction the purchase of supplies for these
works, whether under 'i^2(t(> 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, 21<uj, 1900.
866. Proposals were invited for construction of six locks and dams
on the Monongahela River and the specifications provided as follows:
"'Bids will be received for the lock and dam complete at any one site,
or at tW'O or more sites, or at all six sites, and if accepted contracts will
be awarded for each site separately or for two or more sites, or a single
contract will be awarded for the whole improvement at the six sites as
may appear most economical and advantageous to the United States."
One of the bidders in a letter attached to his proposal oifered, if
aw^arded contracts for three of the locks and dams, to accept at a
reduction of 3 per cent on the amount proposed for them separately;
if awarded four locks and dams, the reduction should be 4 per cent,
and if awarded contracts for the six locks and dams a reduction of 5
per cent could be made. Held that the offer made in this letter was
responsive to the specifications calling for proposals and should be
treated as a part of the proposal. Card 3488, Sejdemher, 1897.
867. AVhere an advertisement inviting proposals for furnishing law
books to the War Department specified that the proposals would be
received at a certain office of the department until IS o'clock noon on
a particular daj^, and two bids were duly received by the time named,
held that a third bid received at one oV-lock p. m. should not be con-
sidered. 47, 403, Juiie^ 1891.
868. Where a bidder proposed to complete the advertised work at a
time difi'erent by five months from that set forth in the advertisement,
held that the variance was material and that the bid could not legallv
be entertained. To let the contract on such a bid would ])e in effect
to make a contract without advertising, and such a contract would not
be binding.' 56, 356, Novemher, 1892.
869. Sec. 3709, Rev. Sts., does not require that a contract shall be'
awarded to the lowest bidder, and it is usual for the United States, in
advertisements for proposals, to reserve the right to reject any and
all bids. Tleld.^ in a case where this reservation had been made, that
'Schneider c. U. S., 19 Ct. Cls., 547, 551; 15 Opins. At. Gen., 538.
246 CONTRACT.
the Secretary of War was legally authorized to permit a bidder (before
the awarding- of the contract) to withdraw, or have rejected, a bid in
which a clerical error, to his detriment, had been made in the amount
bid for certain work. XLV, 19, Septemher, 1881; 65, 7, May, 189If.
870. A bidder may withdraw his bid at any time before receipt of
notice of acceptance without rendering himself or his guarantors
liable to suit on the guaranty which may have accompanied his pro-
posal.^ 65, 378, July, 1891^.. So, At^Zr/, where an officer of the Quarter-
master's Department advertised for proposals for the construction of
a In-idge, and having received several, opened and forwarded them to
the Quartermaster General, and the lowest bidder (a bridge company),
before any bid Avas accepted or award of contract w\as made, gave
notice to the officer who had invited the proposals and to the Quarter-
master General that it withdrew its bid. Card 419, Octoher, 189Ji,.
Where the notice to l)idders announced that no award or acceptance
of bid ""under this advertisement"" would be made until Congress
should appropriate funds for the purchase of the supplies to be con-
tracted for, hdd that a bidder was entitled to withdraw his l)id at any
time before the event imd action indicated. 65, 378, supra.
871. A contract for mosquito bars was regularly awarded to a part}'^
upon a proposal submitted ^)\ him. Subsequently he asked that the
award be cancelled on the ground of mistake in calculation on fabric
for the bars, stating that an emploj^ee to whom the matter of calcula-
tion was intrusted based the same on a fal)ric, valued roughly at 30
cents per piece of eight yards; that too late to correct it he discovered
that the extra heavy fabric in the department standard sample would
cost at least 75 cents per piece; and that in furnishing the bars called
for with a possible increase of 10% he would lose from 4500 to 9000
dollars. Held that the mistake was due to the carelessness of the bid-
'9 Opins. At. Gen., 174; 15 id., 648, 651.
In the latter opinion the Attorney-General held that as the /ywocoH/// accompanying
the bid was for tlie acts of the l)idder "after being notified of the acceptance of
said bid," and the withdrawal of the bid having taken place prior to its acceptance,
neither the bidder nor his snreties were lialile ajxtn the guaranty. He intimated,
however, that a recurrence of the difficulty might be avoided by a properly v/ordecl
statute or guaranty. In a later opinion, dated August 31,1 <S94 ( 21 Opins. , 56 ) , he cited
these ojunions as the rulings of the Dei^artnient of Justice "in the absence of any
special statutory j^rovision;" l)ut referring to Section 8719, Revised Statutes, relating
to l)ids in the Navy Department, as ri'(|uiring each ])r()p(isal to be accompanied "by
a written guaranty * * * that tlie l)idder if his )>id 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,
Dr<x,iJjc,\ 1S79; Card \~i±l, Amjasf, 1898.
But //*/(/ that the provision of Sec. 3679, Rev. Sts., the main object
of which was to protect the United States from arbitrarv expenditures
and improvident pecuniary oblio-ations on the part of executive offi-
cials, would not preclude the taking from a citizen, by the authority
of the Secretary of War. of a lease for five or more years, of land
required for military purposes, where uo rent v^hiUvri' was reserved
therein, or where the rent reserved was a mere nominal sum inserted
by way of formal consideration — as one dollar per annum. XLII,
h^\, Iprn. 1880.
887. Where an appropriation act for a certain fiscal year appro-
priated a certain sum for an arsenal, which was insufficient to complete
the proposed editice, held, in view of the provisions of Sees. 3679 and
3733. Rev. Sts,, that the Secretary of TVar, or the ordnance officer in
charge of the work, woidd not be authorized to enter into a contract
for the building of the entire structure, but could legally contract
onlv for the building of such portion as could be constructed for the
amount appropriated.^ XXXIX, 612, Jidy^ 1878.
888. Although public contracts cannot in general be made in advance
of, or in the absence of, a proper appropriation for the purpose, or other
special statutory authority, yet from this rule are expressly excepted,
b}' Sec. 3732. Rev. Sts., military (and naval) contracts "'for clothing,
subsistence, forage, fuel, quarters, or transportation," which, however,
it is added, "shall not exceed the necessities of the current year."^
Such contracts may therefore Ite entered into irrespective of the ade-
quacy of the appropriations, or entirely on credit, where Congress has
omitted (as it did in the session ending March 4, 1877) to make any
appropriations at all for the army for a fiscal year. But Judd that by
the term '" current year"" was to be understood current fiscal year, and
that, in the excepted cases, the military authorities could bind the Gov-
ermnent by contracts only for nectssary supjdt'fS for the fiscal year in
which such contracts were made.^ XXXVIII, 504, JfarcJi., 1877;
XLII. 135. J<i,iua/'y, 1876.
189. In view of the provision of Sec. 3732, Rev. Sts. (and see Sec.
3679). — until an adequate appropriation applicable to the subject has
been made by Congress, there can be (except as specified in Sec. 3732)
no contract entered into with regard to such subject, and properly no
award or acceptance of bid. L. 388, June., 1886.
'See the opinion of the Attorney General in 15 Opins., 235.
-As to tlie reason oi this statute, see the opinion of Nelson, J., in the case of The
Floyd Aoceptanoes, 7 Wallace, t^i^6, 685.
^To a similar effect, see subsequent opinions of the Attomev General in 15 Opins.,
124, 209.
254 CONTEACT.
890. Sec. -i of the River and Harbor Appropriation Act of August 5,
ISSG, provides that — "The Secretarv of War shall prescribe such rules
and reguhitions as may be necessary to secure a judicious and econom-
ical expenditure of the money herein appropriated." Regulations being
inferior and subordinate to statute, this provision can authorize no
departure from the statutor}' injunctions governing pul)lic contracts,
as for example such as are contained in Sees. 3678, 3679, 3717 and 3732,
Rev. Sts. And held particularly that such provision would not author-
ize a regulation permitting the aggregating in one contract of agree-
ments for the supplying of the materials or labor required for a
number of distinct works, since such a contract would be in contra-
vention of Sec. 3717, Rev. Sts., prescribing a separate contract "for
each class of material or labor for each work.'' ^ But remarked that
sec. 5 of the act cited permitted a departui'e from the contract system
whenever an}" other method is more economical and advantageous to
the government. LIII, 7, September, 1886.
891. By the River and Harbor Act of September 19, 1890, the Secre-
tai'v of AVar was authorized to enter into contract for a certain improve-
ment of the Delaware River, " the work to be paid for as appropriations
may from time to time be made })y law." A contract was entered into
for the whole work at a cost largely in excess of the appropriation avail-
able. It provided that v>dien 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<lvantage of tiie United States. See United States? >\ 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 f<n' their validity the approval of the Secretary of War.
Though contracts of that character are usually negotiated by subordinate officers or
agents of the Government, they are in fact and in law the acts of the Secretary whose
sanction is essential to bind the United States. The Secretary, although the head
of the "War Department, is not in the military service in the sense of the regulation,
but on the contrary is a civil officer with civil duties to perform, as niuch so as the
head of any other of the Executive Departments. It would be carrying the regula-
tion to an absurd extent to hold it was intended to preclude the "War Department
from availing itself liy purchase or any other contract of any property which an
offii'er in the military service might acquire if its possession or use were deemed
important to the Government."
^See note to § 956, ante.
16906—01 18
274 OOISTTRACT.
with such a contract b}' acquiring- an interest therein if the same
relates to matters separate from his office and is no wa}' connected
with the performance of his official duties.^ Held that par. 746 A. R.
(589 of 1805; 671 of 1901), was director}^ merel.v, and that a contract
might still be legal and binding though entered into in contravention
of its terms. 43, 117, Octoher, 1890.
959. The form of a proposed contract contained the stipulation that —
"No person belonging to or employed in the militar}' service of the
United States is or shall be admitted to any share or part of this con-
tract." The description ''person . . . emploj^ed in" is under-
stood to mean all such clerks, mechanics, laborers, or other civilians
as are legally employed by the military authorities in or in connection
with military works, operations, or other authorized transactions. So
where a lowest bidder was a civilian laborer at the Springfield Armory,
advised that the contract be made with the next lowest bidder, who
was under no such incapacity. 48, 375, August, 1891.
960. Where a contract was entered into between an army officer and
a civilian, in which the former assumed without authority to bind the
United States to operate for a term of six months a saw-mill on equal
shares with the latter, the United States to furnish the principal part
of the labor — held that such contract was void and inoperative.
XLV, 13, August, 1881.
961. The act of July 5, 1892, authorizing the extension of the Eck-
ington and Soldiers' Home Street Eailroad on certain streets in Wash-
ington, D. C, provided that the company should before commencing
the work deposit with the Treasurer of the United States, to the credit
of the Washington Aqueduct fund, such sum as the Secretary of War
nvAj consider necessary to defray all the expenses that might be incurred
by the United States in three separate matters, viz: 1, in connection
with the inspection of the work of construction of said railroad on such
streets; 2, in making good an}" damages done to the water mains, fix-
tures or apparatus; and 3, in completing any work that the said com-
pany may neglect or refuse to complete, which the Secretary of War
ma}" consider necessary for the safety of said mains, fixtures or appara-
tus. The act further provided for the disbursement of the money for
the purposes stated and that it should remain on deposit su])ject to
such use for one year after tlie completion of the construction of the
railroad, the })alance remaining to be returned to the company on
the order of the Secretary of War. Held that the Secretary of War
was without authority to return the money deposited or any part of
it until the expiration of the period named in the statute. Card 806,
December, 189 Jf..
' 14 Opiiis. At. (u-n, 482.
CONTRACT. 275
962. A part}^ entered into a contract with the United States to do a
certain amount of dredging between April 1st and Aug. 1st, 1895.
The contract contained the following provision: "Should the time for
the completion of the contract be extended, all expenses for inspec-
tion and superintendence during the period of the extension shall be
deducted from payments due or to become due the contractor." He
did not begin work at the time agreed upon, but on his own applica-
tion and the recommendation of the engineer officer in charge was
given from Aug. 14, 1895, to Jan. 1, 1896, in which to do it. He
worked from the 17th of Aug. through Sept., Oct., and Nov. On the
question whether the amount paid by the Government for ''superin-
tendence and inspection" during the months last named should be
deducted from paj^ments due under the contract it was held that the
deduction could not legally be made. There had not been an "exten-
sion " within the meaning of the contract. The work was to be
completed during a specified period of four months, and during that
length of time the Government had agreed to pay the expenses of
superintendence and inspection. The later agreement changed the
time at which the specified period should begin, but did not materially
lengthen it. The extension contemplated by the contract was any
period of time in addition to the four months, which the contractor
might require to complete the work. Card 2100, July^ 1896.
963. By act of Congress approved June 6, 1896, an appropriation
was made "to enable the Board of Ordnance and Fortification to pro-
cure and test one eight-inch calibre high-power gun cast in one piece,
on the plan of R. J. Gatling," and the Secretary of War was " author-
ized and directed to contract with said Gatling for said gun, without
advertisement, which gun shall be constructed according to the plans
and specifications prepared b}- said Gatling and under his supervision,
and to be subject to the same test now applied to the built up gun of
the same calibre * * of which sum eighty-five per centum shall be
paid in. partial payments as the work progresses in accordance with
the contract to be entered into * * and the remainder upon the com-
pletion and test of said gun * * ." The gun was constructed in
accordance with this act and the contract thereunder, and while being
subjected to the endurance test of firing 300 rounds, it was destroyed
as the result of the firing at the fifteenth round. The act did not con-
template that the final payment of 15 per cent should be made only
after the gun had undergone the required test. The words " upon the
completion and test of said gun " simply fixed a period for the final
payment whether it underwent the test or was destroj-ed while under-
going it. In one sense of the word the gun had lieen tested, when in
being subjected to the prescribed test, it was destroyed. As the act
276 CONTRACT.
made the appropriation " to procure and test" a new type of g"un; as
it authorized 85 per centum to be paid as the work progressed without
an}^ security for the return of the money, should the gun fail to stand
the test; as it appeared from the whole act that the gun was to l)e con-
structed as an experiment; and as there was nothing in the act pro-
viding for a warrant}" on the part of the contractor — held, that the
word •• test" should be construed in the sense above stated, thus enti-
tling the contractor to the payment of the fifteen per centum withheld.^
Card 5700, January, 1S99.
964. Certain contracts for forage provided that the oats and hay
furnished .should '' be of the best merchantable quality of the highest
recognized grade of the locality." Held that the language quoted
simply furnished a standard by which the receiving officer was to
judge the forage offered under the contract; that the term ^ localit}^"
had reference to the towns and country in the vicinity of the post
where the contractor could reasonably be expected to purchase the
forage. State lines would have nothing to do with the matter, and no
particular number of miles could be given as the distance to which the
locality would extend. It has reference to the sources from which
the forage could reasonably be obtained, that is, where the purchasing
officer, the local quartermaster, would probably, in the exercise of
good judgment, purchase in open market. Cards 1993, January, 1896,'
2673, October, 1896.
965. Congress having imposed upon certain designated officials the
duty of representing the United States in the making of the contract
for the monument to Lafayette, held that the authority was personal
and could not be delegated, and that all the officials named, or at least
a majority of them, must sign the contract. LII, 3G3, July, 1887.
966. The implied authority of a partner to execute contracts for
the firm of which he is a member does not extend to contracts under
seal. Where a partner has given express authority to the other part-
ners to execute contracts under seal, evidence of such authority should
be submitted with the sealed instrument. Cards 2483, January, 1897;
5031, 5066, Septeraler, 1898; 6902, August, 1899.
967. Affidavits required to be taken in the execution of contracts
pertaining to militar}^ administration may be taken before the military
officers named in the act of Congress approved July 27, 1892. This
act, having been passed subsequent to the enactment of Sec. 3745
Rev. Sts. , modifies the latter to the extent stated. Cards 3671, Kovem-
hi\ 1897; 3746, Becemher, 1897; 3768, January, 1898.
968. ^Nloncy collected upon a contractor's bond as damages suffered
1 Concurred in by the Attorney General under date of May 9, 1899
COPYRIGHT. 277
by the United States in consequence of his faihire to complete his con-
tract must, under the provisions of Sec. 3617, Rev. Sts., be turned
into the Treasury, and cannot therefore be applied to the work to
which the contract pertained until it is so appropriated by an act of
Congress.^ Card 252T, August, 1896.
COPYRIGHT.
969. The work entitled the "Infantrj^ Drill Regulations," being in
the hands of the Public Printer for printing and publication for the War
Department, that official was authorized by the Secretary of War to
sell electrotj'pe plates of the same. A retired officer of the army
purchased a set of such plates, and thereupon proceeTled to publish
the same, coj)yrighting the publication in his own name (prefacing it
with his own portrait). Held that such act of attempted copyright-
ing was an unauthorized assumption and wholly nugatory in law. It
is only the author or proprietor of a literary work who can legally
cop3'right it, and he has the exclusive right to do so." Nor did the fact
that the publication by the purchaser was of a so-called "Abridge-
ment'"' — suT)stantially the original work somewhat reduced — constitute
him an author or entitle him to copyright.^ And advised that the
"copyright,"" being without legal effect and void, could not affect the
right of the United States to publish the complete work.* 50, 350, 373,
Decerid>ep, 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><equi as to the same. For such action the authority
of the convening commander is requisite.^ But where, by a special plea
or objection, an issue is made by the accused as to the sufficiency of any
pleading, the court, without referring the question to the convening
officer, is empowered to allow the plea or objection and quash or strike
out the charge, &c.' XXIX, 370, Octoher, 1869; 20, 378, Mvember,
1887.
^ See note to § 1000, post.
2 Compare G. C. M. O. 13, Dept. of the Missouri, 1877; do. 36, 79, Dept. of the
riatte, 1877; do. 13, id., 1878; do. 41, id., 1880; do. 45, 48, Div. of Pacific and Dept.
of Cal., 1880.
^This parap;raph sets fortla the estabhshed practice in our service. It is now incor-
porated in the Court-Martial Manual (1901), p. 19, sec. v. As to the authority of the
court to direct an amendment of a charge or specification, see note to § 720, ante.
28(t court martial — authority and function.
1000. When a court martial desires to have the benefit of the testi-
mony of a part}' who has not been introduced as a witness by the pros-
ecution or defence, it may properly call upon the jud^e advocate to
have such part}' summoned, or — if he is a military person — may appl}^
to the convening authority or post commander to have him ordered
before it to testify,^ and it may adjourn the trial for a reasonable time
to await his attendance. XXV, 578, May^ 1868.
1001. In the interests of justice and for the purpose of full}' informing
itself of the facts, the court may, in its discretion, allow the intro-
duction, by either side, of material testimony after the case has been
formally closed.^ Such a proceeding, however, must be of course
exceptional, and a party should not lie permitted to offer testimony at
this stage, unless he exhibits good reason for not having produced it
at the usual and proper time. XII, 401, Ifaij. 1865; XVII, 398,
October, 1865.
1002. In a case where — a plea of guilty having been interposed — the
prosecution had closed and the accused had proceeded to present to
the court a statement of defence, held that the court was authorized,
in its discretion, to reopen the case and hear testimony relative to cer-
tain gross ill-treatment to which the accused in his statement had
represented that he had been subjected, and which he claimed, had
excused or extenuated his offence. XXXI, 35, Hoventher, 1870.
1003. A court martial, after having entered upon a trial which has
to be suspended on account of the absence of material witnesses, or
for other cause, is authorized, in its discretion, to take up a new case
not likely to involve an extended investigation, and proceed with it
to its termination before resuming the trial of the ffrst case. Ill, 281,
Augti-sf, 1863; IX, 650, Septemhet', 186^; XXVI, 548, Ifai/, 1868.
1004. A court martial has no power to terminate its own existence
or function. Where therefore it has adjourned '''sine die'''' (see
' It has not been the practice in this country for the convening authority to detail
an ofhcer to attend a military court in a ministerial capacity — to summon witnesses,
enforce the attendance of the accused, &c. In the special case, indeed, of the i)ersons
charged with complicity in the assassination of President Lincoln, and tried by mili-
tary connnission, it was ordered by the President — May 1st, 1865 — as follows: "That
Brevet Major General Hartranft be assigned to duty as special provost marshal gen-
eral for the purposes of said trial, and attendance upon said commission, and the
execution of its mandates."
^Compare Eberhardt v. State, 47 Ga., 598; and see the trial, by court-martial, of
B. G. Harris (Ex. Doc. No. 14, II. R., 39th Cong., 1st sess., j). 25), where, on the day
on which the accused was to present his final argument to the court, and wliicli was
two days after the formal closing of the case, the defence was allowed to introduce
new testimony on the merits. See also Court-Martial Manual (1901), p. 43.
'' It is moreover the duty of a court martial to see that injustice is not done the
accused l^y the admission on the trial of improper testimony ])rejudicing his defence,
or unfairly tending to aggravate the misconduct charged. In the interests of justice,
therefore, the court may exclude .such testimony although its admission may not be
objected to on the part of the accused. Com2)are State v. O'Connor, 65 Missouri, 374.
COUKT MARTIAL AUTHORITY AND FUNCTION. 287
§ 395, ante)^ it may, without being formally reconvened in orders,
reassemble and take up and try a case referred to it by the convening
authority, through its president or judge-advocate, precisely as if it
had not adjourned at all. It is its duty indeed to hold itself in readi-
ness to try all cases so referred, until formally dissolved bv the con-
vening officer or his successor in the command. XIX, 628, May,
1866; XLI, 282, Jane, 1878.
1006. An adjournment '"'' sine die'''' by a court martial does not dis-
solve it, and the reviewing authority is authorized to send back to the
court its record for the reconsideration of the judgment, and the court
itself to reconsider and reframe the sentence, subsequently to such an
adjournment and without regard to it,^ LV, 208, Decemher, 1887.
1006. A court martial is not legally dissolved till officiall}^ informed
of an order, from competent authorit}', dissolving it. The proceed-
ings of a court martial, had after the date of an order dissolving it but
before the court has become officially advised of such order, will thus
be quite regular and valid. Where an order dissolving forthwith a
court martial has been duly officially received by the court and has
thus taken effect, an order subsequently received revoking this order
will 1)6 entirely' futile. It will not revive the court, but the same, to
be qualified for further action, must be formall}" re-convened as a new
and distinct tribunal. XLIII, 160, January, 1880; 32, 29, April, 1889.
1007. Except where it sustains a challenge under Art. 88, a court
martial is not authorized to dispense with the attendance of a member.^
XXXVII, 3-1. Septemher, 1875. It cannot excuse a member to enable
him to attend to other duties; for example, to act as counsel for the
accused. For such purpose he must be duly relieved by the convening
authority. XXI, 650, September, 1866; XXXV, 488, 490, July, 1871^.
Where a court martial relieved two of its members on the ground that,
having been absent from a portion of the proceedings, the}^ had not
heard a portion of the testimony,'' Jiekl that, provided five members
had always remained and been present, the validity of the findings and
sentence was not affected, and the same would properly- be approved,
unless it appeared that the action of the court had in some manner
prejudiced the defence. 15, 48, February, 1887.
1008. Where a court martial excused its judge-advocate, and required
its junior member to act as judge-advocate in his stead, held that its
action was wholly" unauthorized and that its proceedings were prop-
erly disapproved.* It is only the convening authority (or his suc-
^See Brown v. Root, Sup. Court, D. C, 1900 (44,087 Law).
''Compare 7 Opins. At. Gen. 98.
*See note to § 1667, post.
*See G. C. M. 0. 62, War Dept., 1874.
288 COURT MARTIAL AUTHORITY AND FUNCTION.
cessor in command) who can relieve or detail a member or a judge-
advocate. XXVIII, 198, October, 1868.
1009. Strictly, communications from the convening authority- to the
court as such (and rice versa) should be made to (and b}') the presi-
dent as its organ, unless in the latter case the court directs the judge-
advocate to represent it; communications relating to the conduct of the
prosecution should be made to (and by) the judge-advocate. XXIX,
336, October, 1869.
iOlO. There is no law prohibiting a court martial of the United States
from sitting on Sunday, and the fact that a sentence of such a court is
adjudged on that day can affect in no manner its validity in law.
XXXIX, 321, 627, Woveinber, 1877, and August, 1878; Card 2955,
Fehriiary, 1897.
1011. The polUng of a court martial, in the manner of a jury or oth-
erwise, is a proceeding wholly unknown to military law. So, where
an officer, acting as the counsel of a soldier on trial by court martial,
demanded, on the court ruling adversely upon the admission of a spe-
cial plea, that it be polled,— /^t/fZ that his action was wholly irregular
as W'Cll as disrespectful to the court. ^ XXXIV, 454, September, 1873.
1012. A court martial is authorized, in its discretion, to sit wdth doors
closed to the public. Except, however, when temporarily closed for
deliberation, courts martial in this country are almost invariably open
to the public during a trial. XXIX, 34, Jane, 1869. But in a particu-
lar case where the otfences charged were of a scandalous nature, it was
recommended that the court be directed to sit with doors closed to the
pu})lic. Card 1637, August, 1895.
1013. A court martial is authorized to exclude from its session any
person who, it has good reason to believe, will endeavor to intimidate
or interrupt the witnesses, or otherwise conduct himself in a disorderly
manner. XXIX, 237, August, 1869.
1014. Where, after the accused has pleaded guilty, or after he has
pleaded not guilty and the evidence for the prosecution has been pre-
sented, he effects an escape from military custody and disappears, he
may properW be held to have waived his right of defence, and the
court is authorized to proceed with the trial to a finding and, in the
event of conviction, a sentence." XI, 260, 295, December, 186Jf.; XXI,
169, January^ 1866. Where, in such a case, the accused leaves coun-
sel, the court may, in its discretion, allow such counsel to introduce
evidence and present an argument. XIX, 487, March, 1866.
1015. The remarking by the court, in connection with the finding
'See G. C. M. 0. ;^7, War Dept., 1873.
2 See Fight v. The State, 7 Ohio, 180; McC'orkle r. The State, U Ind., p. 39; State
V. Waniire, 16 Ind., 357. See also Court-Martial Manual (1901), par. 7, p. 15.
COURT MARTIAL AUTHORITY AND FUNCTION. 289
or sentence, unfavorabl}- upon an oificer or soldier (other than the
accused) whose conduct is exhibited by the testimony, or upon an act
or practice deemed proper to be noted in the interests of military dis-
cipline, though now comparatively unusual, is sanctioned Iw the
authorities as permissible and regular in a proper case.^ XXVIII,
626, May, 1869; XXIX, 216, Augu><t, 1869.
1016. A court martial may, in connection with its judgment, prop-
erly animadvert upon a witness, not onl}' as testifying falsely but as
giving evasive and disingenuous testimony; but the power to thus
animadvert upon witnesses should be exercised with caution. 42, 1.56,
July, 1890.
1017. To detail as a military commission the same officers as those
already constituting a court martial or luce versa., without dissolving the
court lirst convened, though a proceeding for which there are prece-
dents both in the Mexican war and the war of the rebellion, is one
which should not be resorted to where, without material embarrass-
ment to the service, it can be avoided. And this view is applicable,
though with less force, to the case of a single officer proposed to be
detailed upon two distinct military courts at the same time: such a
detail should not be made unless, on account of the scarcity of officers
available for such duty, it cannot well be avoided. VII, 134, Fehru-
ary, 186 J^; XIX, 41»5,'j/«>'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):<t, ISSS; 64, 169,
March, 1894..
1022. The officers of the branches of the service specified in par. 190,
A. li. (do. of 1895; 208 of 1901), are sul)ject to be detailed upon court
martial duty only by orders emanating from the War Department.
An officer of the Subsistence Department, assigned to duty at a general
"depot of supply,*' was ordered to ''report, on his arrival, b}' letter
to the department commander." _ffi?^6^ that this was not an order to
report for duty and did not except him from the application of the
regulation or place him, for court martial service or otherwise, under
the command of such commander, but enjoined merely a formal
announcement of his arrival and entering upon his duties properly
called for by considerations of courtesy and deference towards his mili-
tary superior. 48, 255, July, 1891.
1023. A court martial cannot be availed of for the collection of the
pri^'ate debts of officers: it can take no notice of their financial obliga-
tions except as evidence of fraud or dishonor when admissible in proof
of an offence under the Articles of War. 35, 463, Octoher, 1889.
COURT MARTIAL - JURISDICTION.
1024. Courts martial (though, within their scope and province,
authoritative and independent tribunals — sec § 992, ante) are bodies of
exceptional and restricted powers and jurisdiction; their cognizance
being confined to the distinctive classes of offences recognized by the
military code.^ Their jurisdiction is crwiinal, their function being to
' See § 2294, post.
'^ Ex parte Watkins, 3 Pet., 193, 209; Barrett i-. Crane, 16 Verm., 246; Brooks v. Adams,
11 Pick., 4iO; Brooks r. Davis, 17 i<L, 148; Brooks v. Daniels, 22 /(/., 498; Waslihurn
r. Phillips, 2 Met., 29(5; Smith r. Sluiw, 12 Johns., 257; Mills r. :\Iartin, 19 id, 7;
In matter of Wright, 34 How. Pr., 221; Duffield v. Smith, 3 Ser^rf. & Kawie, 590;
Bell r. Toolev, 12 Iredell, 605; State v. Stevens, 2 McCord, 32; Miller r. Seare, 2 W.
COUKT MAKTIAL JURISDICTION. 291
award (in proper cases) j>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<re, dismissal, &c., for offences coniinitted prior
thereto, is subject to a si)ecific statutory exception, viz. that ])r(n-ided for in the con-
cluding i)rovisi<)n of the OOth Article "As to the (juestion of the constitutionality of
this provision, see § 117, ante, and note; also note to § 1081, jioxt.
COURT MARTIAL JURISDICTION. 293
punishment — a complete expulsion from the army — and covers all unex-
pired enlistments. A soldier thus dishonora])ly discharged cannot be
made amenable for a desertion or other military 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, 179, supra; 65, 165, August, 1892; 59, 55, Ajyril, 1893;
Card 7614, January , 1900.
1029. A soldier, however, provided he has not been in fact discharged,
may be brought to trial l)y court martial after the term of service for
which he enlisted has expired, provided, before such expiration, pro-
ceedings with a view to trial have been duly commenced against him by
arrest or service of formal charges.^ By such arrest or service the mili-
tary' jurisdiction attaches, and, once attached, trial by court martial, and
punishment, upon conviction, may legalh' ensue, though the soldier's
term of enlistment ma}' in fact expire before the trial be entered upon.
In the leading case on this point of a seaman in the navy {In re Walker,
3 American Jurist, 281), the Supreme Court of Massachusetts held^
(January 25, 1830) as follows: "In this case the petitioner was
arrested, or put in conlinement, and charges were preferred against
hhii to the Secretary of the Navy before the expiration of the time of
his enlistment; and this was clearly a sufficient commencement of the
prosecution to authorize a court martial to proceed to trial and sen-
tence, notwithstanding the time of service had expired before the
court martial had been convened." So JieJd., in a case of a soldier of
the regular army, arrested on the day before the expiration of his
term of -enlistment, with a view to a trial for a militar}' offence by
court martial, that the jurisdiction of the court had duly attached,
and that his trial might legally be proceeded with. XXVI, 512, April,
1868. And similarly held in repeated cases of soldiers and officers
of regular and volunteer regiments. V, 313, Novern'ber, 1863; VII,
24, July, 186J^; XII, 352, Fehruary, 1865; XIV, 229, March, 1865;
XVI, 562, 8e])temlei\ 1865; XXVII, 599, Ajmil, 1869; Card 2011,
Jan nary, 1896.
1030. Persons in the military' service are amena])le to the jurisdic-
tion of courts martial for military offences conmiitted hy them while
in arrest or confinement awaiting trial hy court martial. 33, 335,
June, 1889.
1031. B}' the Vlth Amendment of the Constitution, civilians are
guaranteed the right of trial by jur}' "in all criminal prosecutions."
1 See G. C. M. 0. 16, War Dept., 1871.
^And see Judge Story's charge to the jury in United States r. Travers, 2 Wheeler
Cr. C, 490, 509; In the matter of Dew, 25 L.'R. 540; In re Bird, 2 Sawyer, 33.
294 COURT MARTIAL JURISDICTION.
Thus — in time of peace — a court martial cannot assume jurisdiction of
an offence committed b}" a civilian without a violation of the Constitu-
tion. It is only under the exceptional circumstances of a time of war
that civilians may, in certain situations, become amenable to trial by
court martial.^ XIX, 475, 2farch, 1866; XXXVIII, (Ul, June, 1867.
1032. Anv statute by which any class of civilians is attempted to be
made amenable to trial l)y court martial for offences committed while
civilians and in time of peace, is necessarily unconstitutional. XLII,
2.50. Aj'vl/, 1879.
1033. Sec. 1361, Rev. Sts., applies only to prisoners in confinement
at fhe military prison at Leavenworth. So, in a case of a prisoner,
who, while confined, after discharge under sentence, at the prison at
Alcatraz Island, was brought to trial by court martial for an escape
and sentenced, on conviction, to an additional term of imprisonment,
hdd that the second trial — the prisoner being then a civilian — was
wholly without legal authority and the sentence of no effect.^ XXXI,
47. :S^> 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 jr<iy, 1872.
1048. It is the right of the accused, and may be most important to
his defence, that he be allowed to be present during all the material
proceedings of the trial. He cannot therefore be then legally excluded
from the court room. He may however waive the right to be present,
and if he thus voluntarily absents himself, the validity of the proceed-
ings is not afl'ected. XXIV, 4S8, Aj)rll, 1867.
1049. The fact that the accused is an oflicer of high rank should not
be regarded as constituting a ground for allowing him any special
right or privilege in his defence before a court martial. The adminis-
tration of justice bv a military, as by a civil coui't, must be strictly
'Compare G. C. M. 0. 62, Dept. of the Missouri, 1877; do. 55, id., 1879; and— as
to the civil i)ractice— Lee r. Btate, 51 [Miss., 566; People r. Harrinjrton, 42 Cal., 175.
DESERTIOlSr. 299
impartial, or it ceases to be pure. All persons on trial hj the one
species of tribunal, as b^'the other, are deemed to be equal before the
law. XI, '204:, D<:cmihei\ 186.^.
1050. It is no sufficient defence to a charge of striking- or using
other violence against a soldier, by an officer, that the soldier was
himself violent and insubordinate, unless it most clearly appear that
the force employed by the officer was resorted to in self defence, or
that the soldier could not have ])een repressed or restrained by the
usual and legitimate methods and instrumentalities of discipline. LIII,
193. October, 1886; 43, 52, Se2>Umher, 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 <icq^iitted
by the court, held., that his discharge without honor, primarily on
account of said alleged offences would not be proper. Card 1U58.
Fthrnary., 1895.
> 1138. The statement of character being no part of the discharge,
](<ld, that the discharge "without character"' given when a soldier's
character has not been sufficiently good to allow of his re-enlistment
(par. 148, Army Regulations, 1895) is in legal effect an honorable
discharge. 30, 169, Fehrmry, 1889; Cards 352, Sejytemher, 1891^; 604,
N<>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, a<hnst<^ that such a sentence was illegal
as devolving upon the reviewing ofiicer a duty pertaining to the court. ^
XXXIII, 401, October, 1872.
1148. Jfeld, that a soldier may be summaril}^ discharged while in
confinement under sentence, but a sunnnary discharge under such cir-
cumstances would not only discharge him from the service but would
<^ff'ect a remission of so much of the sentence as remained unexecuted
on the date of the discharge.^ 53, 409, 2faij, 1892; Cards 1906, 1907,
and 1912, Decemher, 1895.
1149. A sentence of dishonorable discharge (even when ignominious,
as when accompanied l)y drumming out) entails j^ci' i<e no discjualifica-
tion for civil employment under the United States,* VIII, 91, March,
>See 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. //</(/ thai the provision on this sul)ject of the act of March 3,
1805, c. 7t>, 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.<ru8t 29, 1892, the Attorney
General, whose opinion hail Ix-en asked \vitli re^ri^rd to the ap])licati()n in general of
the act to the "construction of levees on the .Mississipj)! River," declines. to give an
official opinion with a view to the guidance of persons who may propose to enter
into contract relations with the United States," in tiie absence of a special case
requiring the action of the Secretary. See 20 Oitins., 4o9.
EIGHT-HOUR LAW. 347
by the facts of each special instance as it arises. A case in which it
appeared that a compliance with the statute was not possible, might
well be held to be one of "extraordinary emergency." 55, 311, Sej)-
Uinlei\ 1R92; 60, 263, July, 1893; Card 1365, March, 1895.
1240. No provision is contained in the act of 1892 for the simpension
of its operation, and the Secretary of War has no power to suspend it
as to certain work or places of work on the theory that an "emer-
genc}'' " exists as to the same. Nor can he lay down in advance any
general rule as to what would be such an emergency as would relieve
an officer or contractor from liability or give him an immunity from,
prosecution. The question of the existence of an emergency is to be
determined, in the first instance, by the person carrying on, or in
charge of, the work; in the second, by the court, if the case comes
before one. It may be said generally that when the emergency can be
foreseen it is not extraordinary ; that increased expense and inconven-
ience cannot constitute an emergency when they can be foreseen and
guarded against. 55, 153, 321, 386, 169, August and Septemher, 1892;
56, SSO, Mimnher 1892; CsirdslSm, Jfarck, 1896; 9137, Octoher, 1900.
1241. At the Leavenworth Military Prison there are employed cer-
tain civilians as ""foremen of mechanics," who are paid, under the
Sundry Civil Appropriation Act, a stated salary of $1,200 per annuvi,
and whose duty it is to direct the labor of the prisoners. The regula-
tions framed for the government of the Military Prison, pursuant to
Sec. 1345, Rev. Sts., require more than eight hours' labor ^a^/- diem, of
the prisoners, and consequentlv more from these foremen. Held that
the latter were not entitled to the benefits of the act of August 1,
1892, c. 352, as "laborers or mechanics," the statute not being appli-
cable to them. 65, 220, June, 189^.
1242. The act of August 1, 1892, provides that it shall be unlawful
for any officer of the United States Government or any contractor or
subcontractor whose duty it shall be to employ, direct or control the
services of laborers or mechanics (on public works) to require or per-
mit an}^ such laborer or mechanic to work more than eight hours in
any one calendar day except in case of extraordinary emergency. But
where a sub-contractor purchased window blinds, sashes, etc., for a
public building at a factory in which the employes were working
mor(> 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 Unite<l States for the term required by the existing
law, and an acceptance of such service on tiie part of the Government, may ordinarily
be regarded as legal evidence of a contract of enlistment between the parties, and
as equivalent to a formal written agreement where no such agreement has been had.
- "On a charge of desertion or other offence against military discipline, it will be
sufficient to prove that the accused received the pay or did the duties of a soldier
without other proof of his enlistment on oath." 3 Greenleat Evidence, § 48.3. And
see Lebanon f. Heath, 47 N. Hamp., 359; Ex parte Anderson, 16 Iowa, 599.
350 ENLISTMENT.
1255. A soldier deserted from a volunteer reg-iment in 1862 ; was
tried for the desertion, and dishonoral)ly discharged in 1864. In Feb-
ruary", 1865, he was arrested and illegally tried again for the same
desertion, and sentenced to be assigned to duty with certain forfeit-
ures and to make g-ood time lost by the desertion. He was thereupon
assigned to a company- on April 12, 1865, and was honorably discharged
on August 11th, following. Held that his acquiescing in the assignment
and serving under it amounted to a constructive enlistment, making
his status that of a soldier during the period of such service. Card
4965, Septeynber, 1898.
1256. A private in a volunteer company was in 1864 appointed cap-
tain in ant)ther regiment. He accepted and entered upon the office.
Subsequently an order was issued purporting to revoke the appoint-
ment and directing his return to his original company as a private.
He complied with the order. Held that while this order was in fact
void he, by complying with it, abandoned the office of captain, and, by.
performing services as a private which were accepted and paid for by
the (xovernment, constructively enlisted again. Card 2293, Jane., 1896.
1257. A non-compliance with an army regulation in making an enlist-
ment does woi2>ei' 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<l early in the civil war. The fullest argument in favor (if the existence of the
power in the rresident, is contained in Mr. Horace Binney's treatise on "The Privi-
lege of the Writ of Hahea.s Corpus under the Constitution." And see also. Ex parte
Field, 5 Blatch. 63; Opinion of At. (Jen. Bates in 10 Opins. 74. The weight of
judicial authority, however, was the other way. See Ex parte Merrvman, Taney,
246; McCall r. M'cDowell, 1 Abbott, U. S. R.,212; Griffin r. Wilcox, 21 Ind. 383; In
re Kemp, 16 Wise. 382; In re Oliver, 17 id. 703.
392 HABEAS CORPUS.
part then^of;'"' — Congress, I)}'' thus asserting the right in itself to author-
ize the suspension, iniphang that, in its opinion, the power to suspend
did not reside in tlie President/
In sundry particular cases, referred to the Judge-Advocate General
by the Seci"etar>' 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, }iA<l that it would be legal to subject him to the confine-
ment adjudged l)y the sentence. XIX, 600, April ^ 1866.
1461. Sentences of imprisonment till a fine, also imposed by the sen-
tence, is paid, are sanctioned by the usage of the service. It is proper,
however, in such sentences to aflix a limit beyond which the punish-
ment shall not be continued in any event. XIll, 472, March, 1865;
XX. 16, Ocfoher, 1865; XXXII, 4:l\ Octoher, 1871. Where a sentence
adjudges a fine without also adding (with a view to enforcing its pay-
ment) a term of confinement, — such a confinement cannot of course
legally be imposed by the military commander. XIII, 472, siqtni. So,
held that par. II of G. O. 61, War Department, 1865, to the efi'ect that,
where a court martial, in imposing a fine, has failed to require that
the prisoner shall be confined till the fine is paid, "he will not be released
without orders from the War Department, except on payment of the
tine,"" — transcended the authority of an executive order; such a require-
ment being 'n punishment, which can be prescribed only by sentence of
court-martial. XXXIII, 309, Augmt, 187%.
1462. The old rule, that the term of a confinement (of so many
months, years, &c.), imposed by sentence of court martial, commenced
on the day on which the prisoner was delivered to the proper ofiicer —
as the ofiicer in charge of the prison or commanding the post — to be
confined according to the sentence (XI, 380, Jan nary, 1865)^ having
])een found inconvenient in practice, there was substituted for it by
G. O. 21, Hdqrs. of the Army, of 1870, the rule that— "the confine-
ment shall l)e considered as commencing at the date of the promulga-
tion of the sentence in orders." To hold that under this order the
commencement of the confinement must be delayed until notice of it
has reached the prisoner might lead to the same abuse which the order
was intended to correct.' XXX, 150, March^ 1870.
1463. While the fact that the accused has been confined for an unrea-
sonable period awaiting trial may properly l)e taken into consideration
by the court in estimating the period of confinement proper to l)e
imposed upon his conviction (XXVIII, 104, Aacjud^ 1868), neither the
time during which the accused may have been held in arrest and con-
finement prior to trial, nor that during which he ma}" have been so held
after trial and before the promulgation of his sentence, can be credited
' See i)aragraphs 945 and 947, Army Regulations of 1895 (1046 and 1048 of 1901),
also, jjaragraphs 13 and 15, p. 64, Court-Martial Manual (1901).
400 IMPRISONMENT OR CONFINEMENT.
on a term of imprisonment adjudged thereby in executing- the same.
If the party has been detained for an unreasonal)ly long period at either
of these stages of the proceedings, he can be indemnified therefor only
bj' a proportionate mitigation or remission of his punishment. XI,
380, January, 186-1, ■ XXVIII, 840, 48^, January and Apr!h 1S69.
1464. Where an officer or soldier is sentenced merely to a term of
confinement without the addition of "' hard labor,"" other than in a peni-
tentiary or the Leavenworth military prison, while he may properly be
required to perform the ordinary domestic or police work directed by
the sanitary regulations of the prison, he cannot properl}" be put to
unusual labor of a severe and continuous character. Thus JuJd that
to require a soldier sentenced simply to be confined, and confined accord-
ingly at Alcatraz Prison, to work daily at blasting and quarr3'ing rock,
was adding to the puni<<hm>mt (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; Unite<l States r. Fortv-tliree
Gallons of Whiskev, 3 Otto. 188; Bates v. Clark, 5 id., 204; United States r. Seveloff,
2 Sawyer, 311. See par. 475, Army Regulations of 1895 (551 of 1901).
INDIAN COUNTRY. 409
1499. The Secretary of War has no general authority to license trade
with Indians in the Indian countr3^ By Sec. 2129, Rey. Sts., such
licenses can be giyen only by a "superintendent of Indian affairs, or
Indian agent or sub-agent." 55, 283, Septemher 1892.
1500. The Secretary of AVar has no general authorit}" to license the
introduction of spirituous liquors into the Indian country. Under
Sec. 2139, Rey. Sts.. and the act of July 23, 1892, c. 234, amending
that section and extending it to beer and other malt liquors,^ the Sec-
retary of War is without authority to permit the introduction into
that country of any spirituous or malt liquors intended for sale. 55,
IVl.Zm, August 'dwdi Septemler, 1892; 56,31, October, 1892; Card 506,
October, 1891^. The statutes cited do not authorize the Secretary of
War to license the sale of spirituous or malt liquors in the Indian
countr3^ Whether a particular article is in fact spirituous or malt
liquor is a question for the courts, and not the War Department, to
decide. Cards 1747, November, 1895; 7813, 7981, Marcli and Ajmll,
1900.
1501. Prior to the act of July 23, 1892, no formal rule or regulation
goyerning the subject of the introduction of liquor into the Indian
country was promulgated by the War Department, but shortly after
the passage of the act the Secretary of War decided that no permits
would be granted except in cases where the liquor was to be used in
or connected with the United States Army. This decision was adhered
to until October, 1897, when it was modified by a further decision that
permits to introduce wine into the Indian country for sacramental
purposes would be granted upon the application of any clergyman hay-
ing charge of any congregation or district in said country when for-
warded to the War Department through the applicant's ecclesiastical
superior, or upon other eyidence of authenticity. The authority of
the War Department to issue permits under the statutes coyering the
matter has in practice been yiewed as limited to permits to introduce
intoxicating liquor into the Indian country and as not extending eyen
\>y 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 deci<led on the sentence, the record can not be
authenticated by his signature, it must show that it has been formally api)roved by
the court and must be authenticated by the signature of the president."
JUDGE-ADVOCATE. 415
1526. A direction in an order convening- a general court martial that
if the judge-advocate be prevented from attending the junior member
of the court will act in his stead, held irregular and improper; the
function of a judge advocate as prosecuting officer (see Art. 90) not
being proper!}" compatible with that of a member of a court martial.
And the member having acted as judge-advocate and meml^er in the
case, advised that the proceedings be disapproved b}" the reviewing
authority. IT, 00, 2£arch, 1863; XXI, 300, Ilarch, 1866. A court
martial has of course no authoritj^ to direct or empower its junior
member or any other officer to act as its judge-advocate. XXYIII,
198, Odoher, 1868.
1527. An officer serving as judge-advocate on the staff of a depart-
ment or army commander has as such no authorit}" to act as judge-
advocate of a court martial convened by such commander. If it is
desired that he should act as judge-advocate of such a court, he should
l)e speciall}" detailed for the purpose. V, 140, Octoher^ 1863.
1528. AVhile a civilian may legally be appointed, or rather emploj^ed,
as judge-advocate of a court martial, such an emplo^-ment has, for the
past fifty years, been of the rarest occurrence in the military service.^
Civil judge-advocates have been much more frequent]}- employed for
naval than for military courts martial." XX, 507, March., 1866.
1529. While a judge-advocate is not subject to challenge (XXXV,
618, (>ct(>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 )toU<ij)rosequl as to the same, or substitute a new and distinct
charge for one transmitted to him for trial by the proper superior.*
II. m. March. 1863; XXI, 56, Novemher, 1865; 20, 378, Xoiynnher, 1887.
1533. The duty of the judge-advocate toward the accused should
not be regarded as confined to the limited province of "counsel for
the prisoner'' as the same is defined in the 90th Article of War.
Where the accused is ignorant and inexperienced and without coun-
sel — especially where he is an enlisted man — the judge-advocate should
take care that he does not sufi'er upon the trial from any ignorance or
misconception of his legal rights, and has full opportunit}' to inter-
pose such plea and make such defence as may best bring out the facts,
'See G. O. 64, Dept. of the Cumberland, 1867; do. 98, id., 1868; do. 85, Dept. of
the South, 1874; (I. C. M. O. 36, 42, Dept. of the Platte, 1877; do. l.S, id., 1878; do.
48, Mil. Div. of Pacific & Dept. of Cal., 1880.
This paragraph sets forth the estal:)lished practice. See ]\Iaiinal for Courts IVIartial
(1901), p. 23, par. 2.
A competent judge-advocate will properly be left by the court to introduce the
testimony in the form and order deemed by him to be the most advantageous, and
generally to bring on cases for trial and conduct their prosecution according to his
own judgment. Compare (1. C. M. (). 97, Dei)t. of Dakota, 1878; do. 38, Dept. of
Texas, 1878; and — as to the civil practice — United States r. Burr, 1 Burr's Trial, 85,
469; Lynch v. Benton, 3 Rob., 10.5; Davany t'. Koon, 45 Miss., 71.
JUDGE- ADVOCATE. 417
the merits, or the extenuating circumstances of his case. V, 577,
December, 1863; LV, 182, Decemhei^ 1887. The judo-e-advocate should
advise the accused, especially when ignorant and unassisted by coun-
sel, of his rights in defence — particularly of his right, if it exists in the
case, to plead the statute of limitation (21, 156, Deeemhei\ 1887). and
of his right to testify in his own behalf.^ A failure to do so, how-
ever, will not affect the legal validity of the proceedings; though, if
it appear that the accused was actually ignorant of these rights, the
omission may be ground for a mitigation of sentence. LV, 182,
sujtra.
1534. For the judge-advocate to counsel the accused, when a soldier
or inferior in rank, to plead guilty, must in general be unbefitting
and inadvisal)le. But where such plea is voluntaril}- and intelligently
made, the judge advocate should properly advise the accused of his
right to offer evidence in explanation or extenuation of his offence,
and, if any such evidence exists, should assist him in securing it. And
where no such evidence is attainable in the case, the judge advocate
should still see that the accused has an opportunity to present a
"statement,'"' written or verbal, to the court, if he has any desire to
do so.'- V, 577, December., 1863.
1535. A judge-advocate of a court martial has no authority to place
in arrest an officer or soldier about to be tried by the court, or to com-
pel the attendance of the accused before the court by requiring a non-
commissioned oflicer to bring him or otherwise: these are duties which
devolve upon the convening authority or upon the post commander
or other proper officer in whose custody or command the accused is at
the time. XXVIII, 531, AprU, 1869.
1536. It is strictly the proper practice for a judge-advocate not to
give his opinion upon a point of law arising upon a military trial,
luiless the same may l)e required by the court. This practice, how-
ever, is often departed from, and the opinions of judge-advocates,
suitably tendered, are in general received and entertained l)y the court
without objection, whether or not formall}^ called for. But where the
court (lots object to the gi\ing of an opinion by the judge-advocate,,
he is not authorized to attempt to give it, and of course not authorized
to enter it upon the record. Whether the feict — that the opinion was.
offered and objected to ])y the court — shall be entered upon the record,,
is a matter for the court alone to decide. It is, however, certainly
the better practice that all the proceeding.^, even those that are irreg-
ular, which transpire in connection with the trial, should be set out
^ See G. 0.75, A. G. 0. 1887.
■■'See Manual for Courts Martial (1901) p. 28, par. M; also Macomb (ed. of 1809), pp.
170,171.
16906—01 27
418 JUDGE-ADVOCATE.
in the record for the inspection of the reviewing- authority. XXVI,
251, Deonther, 1S67.
1537. It is one of the duties of the judge-advocate to prepare the
"complete and accurate record'' whicli "every court niartiar' is
required b}^ the Army Keguhitions to "keep." He should, if prac-
ticable, complete the record of each day's proceedings in time to be
submitted to the court at the next day or next session for approval or
correction. The record is the record of the <:v>v//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 /</. Mav 15,1867; G. O. 29, 61, iW. 1868; do. 4, Fifth /(/.
1869; also Gen. Wool's G. 0. 516 of 1847.
AVhile the majority of these special tribunals were confined to the exercise of such
functions as are conunonly devolved upon police or justices' courts, their authority,
when empowered for the purpose I))' a competent military commander, to take cog-
nizance of important civil actions has l^een affirmed by the Supi'eme Court oi the
United States in the case of Mechanics' & Traders' Bk. v. Union Bk., 22 Wall., 276, in
which a " Provost Court," established at New Orleans by an titrder of the department
commander, of May 1, 1862, was held to be a lawful tribunal, and a judgment ren-
dered by it in an action for the recovery of $130,000, money borrowed by one bank
from another, was recognized as legal. See this case also in 25 La. An. 387.
So, the authority of the "Provisional Court of Louisiana" (which succeeded the
"Provost Court" last indicated, and was estaldished bj^ the President, in an Execu-
tive Order of Oct. 20, 18<i2) to determine a cause in admiralty, was alii rmed by the
United States Supreme Court in Tlie ( irapeshot, 9 Walhu'e, 129 and later its juris-
diction in a civil action on a mortgage debt was ret'ognized by tliat tribui;al in Burke
V. JNIiltenberger, 19 Wallace, 519. And see the same case, as Burke r. Tiegree, in 22
La. An. 629. The authority of the same court to take cognizance of a case of murder
and one of" arson (as also of civil controversies) was maintained in an elaborate
LAW OF WAR. 429
tion oli'ective after the re-instatement of the former government/
And it would seem that the same rule should apply to the granting- of
franchises for railways, electric light plants, etc. Whether the effect
of a treaty of peace substituting the sovereignty of the United States
for that of the former government would be to render such aliena-
tions and grants binding is doul^tful. Upon this point the authorities
do not seem to agree, but it is laid down in the "Instructions for the
Government of the Armies of the United States in the Field" (G. O.
100, A. G. O. 1868, par. 81) that "a victorious army appropriates all
public money, seizes all public movable property until further direc-
tion by its government and sequesters for its own benefit or that of its
go\ernment, all the revenues of real property l)elonging to the hostile
government or nation. The title to such real property remains in
abeyance during military occupation and until the concpiest is made
complete." If the title to real property is in a])eyance as stated, it
Avould seem that the military authorities would ])e without power to
make an alienation of it by the granting of franchises or otherwise
which would be valid after the termination of the government by mili-
tary occupation. Card 5(»T0, Sejjtemhei', 1S98 ; 51:57, I)ec<nnl>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 i<L, 17, 656.
MARRIAGE. 449
Held^ in view of all the circumstances of the case, that the finding and
sentence would properly be disapproved,^ XI, 592, March., 1865.
1635. Where, in time of peace., a soldier while running toward his
quartei's from two officers of the command, who were attempting to
arrest him for disorderly conduct at night, was, by the order of the
superior officer, fired at by the inferior and mortally wounded; and it
was doubtful upon the evidence whether a sufficient efl'ort had been
made to halt the soldier before firing, while at the same time it
appeared quite probable that he might subsequently have been iden-
tified at the post and duly punished; — held that, whatever may have
been the offence, if any, of the junior officer, the superior, who directed
the firing, might, upon the death of the soldier from his wound, prop-
erh" be brought to trial on a charge of "manslaughter to the prejudice
of good order and military discipline." XXV, 592, June., 1868.
1636. Where a soldier confined with other prisoners in a guard
house, in time of peace, was under the influence of liquor and noisy,
and continued to be noisy and disorderly though repeatedly ordered
by the officer of the day to keep quiet, and was finally struck or thrust
in the breast b}^ the latter with his sword and mortally wounded so
that he presently died; and it did not appear that there was any
danger of mutiny or serious disturbance on the part of the other
prisoners present at the time; — held that the evidence established no
sufficient justification for a resort by the officer to such an extreme
proceeding, and that his conviction by court martial of "manslaughter
to the prejudice of good order and military discipline," and sentence
of dismissal, were warranted and proper. An officer has no right to
take the life of a soldier, nor to commit a battery upon him with a
dangerous weapon, except in a most aggravated case: as in a case of
riot, rescue or mutin}', violent resistance to superior authority, escape,
or refusal to obey a lawful order requiring instant obedience — when
no other but such extreme means will restrain or compel compliance.^
And an act of killing of a soldier, which in time of war might be justi-
fiable homicide, might be manslaughter, or even murder (see Mur-
der) in time of peace. XXXVIIir 579, April, 1877.
MARRIAGE.
1637. In the absence of express authority given by a statute of the
State or Territorj^, an officer of the army cannot be empowered to
^ Disapproved accordingly in G. C. M. 0. 177, War Department, 1865. Compare the
case of a killing by a deputy U. S. marshal under similar circumstances, referred to
by the Attorney General in 14 Opins., 71.
^See remarks of Secretary of War in G. C. IVI. O. 47, Hdqrs. of Army, 1877; and com-
pare United States v. Carr, 1 Woods, 484; also orders cited in note to § 2322, post.
16906—01 29
450 MARTIAL LAW.
solemnize marriage, whether the male party be a soldier or a civilian,
XXIX, 674, Fehruary, 1870; Card 3501, Sejjteriiber^ 1897.
1638. A military commander, authorized to grant or refuse passes
or furloughs to his command, may of course refuse permission to leave
the post to a soldier whose purpose is to become married. A com-
mander ma}' also, if the interests of discipline require it, exclude the
wives of soldiers (who are not laundresses) from a post under his
command at which their husbands are serving. But while the Army
Regulations forbid the enlisting (in time of peace, without special
authority) of married men, there is no statute or regulation for-
bidding the contracting of marriage by soldiers, any more than by
officers, while in the service. So held that, under existing law, a mili-
tar}' commander could have no authorit}' to prohibit soldiers, while
under his command, from marrying; and that the contracting of mar-
riage by a soldier (although his commander had forbidden hmi, or
refused him permission, to marry) could not properly be held to con-
stitute a militar}" offence. Where indeed there is involved in the con-
duct of the soldier at the time any military neglect of duty or disorder,
he ma}', for this indeed, be 1)rought to trial, but not for the marr3"iug
as such. And remarked., that if the marrying by soldiers after enlist-
ment becomes so generally practiced as to be demoralizing to the army
or otherwise prejudicial to discipline, the evil can effectually be
repressed onl}" through new legislation b}- Congress. XXXVIII, 47,
April, 1876; -107, Jamiary, 1877; XLIIl, 109, December, 1879.
MARTIAL LAW.
1639. Martial law is a modified degree of the law of war (see § 1567,
cmte), or a law assimilated to the latter, called into exercise tem-
porarih' and for a specific purpose, at a time of war or public emer-
gency, and generall}" in a place or region not constituting enemy's
country, or under permanent military government.^ Whether pro-
claimed b}' the President or declared by a competent military com-
mander, martial law overrides and supersedes, for the time being, all
civil law and authorit}^ except in so far as the same ma}'- be left opera-
tive by the terms of the announcement,^ or the action or acquiescence
^ Note the distinction between military government proper and martial law as illus-
trated in Milligan's Case, 4 Wallace, 142. The "martial law" referred to in the
text is defined in the Manual for Courts Mar. (1901 ), p. 5, as "Martial Law at Home
(or, as a domestic fact); by which is meant military power exercised in time of war,
insurrection or rebellion, in i)arts of the country retaining their allegiance, and over
persons and things not ordinarily .^^ubject to it."
''Luther V. Borden, 7 Howard," 13-14; United States r. Diekelman, 2 Otto, 526; In
re Egan, 5 Blatch. 819, 321; Grithn r. Wilcox, 21 Ind. 376; Johnson v. .Jones, 44 Ills.
153; /nn'Kemp, 16 Wise. 382; Clode (Military and Martial Law), 183-191; Hough
(Precedents), 514, 549; G. O. 100, War Dept., 1863, Sec. I.
MARTIAL LAW. 451
of the dominant power. While the status of martial law continues,
the military power, instead of being- sul)ordinate, is superior to the
civil power, and the natural and normal condition of things is thus
reversed. But while martial law will warrant a resort l\y the com-
mandei', at his will, to summaiy and arljitrary measures, ])y which the
li))erty of the citizen may be restrained, his action coerced, and his
rights suspended, it cannot be availed of by subordinates to justify
acts of unnecessary violence, personal persecution, or wanton wrong, ^
XII, 105, Decemher, 1861^; XIX, 11, Octoher, 1865; Card 8383, May,
1900.
1640. Where a city or district has been put under martial law liy the
commanding general, he becomes its supreme governor, and, in gov-
erning, is ordinaril}' to be presumed to be empowered to exercise the
same authority which the President might have exercised had Jte pro-
claimed martial law therein," X, 669, Deceriiher, ISGIf..
1641. In view of the President's proclamation of July 5, 1861, sus-
pending- the writ of Jmheas corjnis, and establishing martial law in the
State of Kentucky, Juid (December, 1861), to be competent for the
general commanding the military district of Kentucky, if in his
judgment the efl'ective maintenance of martial law and the accomplish-
ment of the ends proposed b}^ its declaration recjuired it, to restrain,
b}' such means as in his discretion might l)e deemed needful, the prose-
cution of suits instituted against United States officers for acts done
in the line of their duty, and having the effect (indicated in the proc-
lamation) of impeding "military operations," and of embarrassing "the
constituted authorities of the Governnient of the United States," X,
060, Decemher, 1861^.
1642. The occasion for the exercise of martial law properh' ceases
when the emergenc}' has passed which made it necessar}- or expedient,^
So, — the commander of the Middle Militar}- Department having, in
view of the presence in the department of an army of the enemy, pro-
claimed. l)y order of June 30, 1863, a state of martial law in Baltimore
city and county and the counties of the western shore of jVLuyland,
with the assurance expressed that such status should not extend bej'ond
' "But the existence of martial law does not authorize general military license, or
place the lives, liberty, or proi:)erty of the citizens of the States under the unlimited
control of every holder of a military commission." Despan r. Olnev, 1 Curtis, 308.
And see Luther /•. Borden, 7 Howard, 14; G. O. 100, War Dei)artment, i860. Sec. I, par.
numbered 4.
^In Clark r. Dick, 1 Dillon, 8, the court, referring to the placing of the city of St.
Louis under martial law by the Department Commander, INIaj. Gen. Halleck (by
G. O. .S4, Dei)t. of the Missouri, 18t)l), observes: "That this officer represented
the President who is commander-in-chief of the army and was vested with all the
authority as such military commander that belonged to the President, cannot be
doul)t('d."
^ In re Egan, 5 Blach. 319, 322; In the matter of INlartin, 45 Barb. 145; Hough
(Precedents), 535.
452 MARTIAL LAW.
the necessities of the occasion, — held that as the exigency had long
ceased to exist, the order, though never in terms revoked, should
properlv be considered as no longer operative. XIl, 422, June^ lS6o.
1643. The President's proclamation of Sept. 24, 1862, subjected to
martial law and trial by military courts throughout the United States
certain classes of persons named, and suspended the pri^^lege of the
writ of habeas corpus as to all persons imprisoned under military sen-
tence or by military authority '"during the rebellion." The further
executive proclamation of Sept. 15, 1863 (issued pursuant to the act
of March 3, 1863, — see § 1436, ante)^ suspended the privilege of the
writ throughout the United States as to certain classes of persons
enumerated. The further proclamation of Dec. 1, 1865, in revoking
generally the suspension declared b}^ the proclamation of Sept. 15,
1863, excepted from i^uch revocation, and left the suspension in force
in, certain States and Territories specitied and ''in the District of
Columl)ia.'" The proclamation of April 2, 1866 (which, in one of its
preambles, declared that martial law and the suspension of the writ of
hahenK eorjms were ''dangerous to public liberty, incompatible with
the individual rights of the citizen," &c., and *■' ought not to be sanc-
tioned or allowed except in cases of actual necessit}"," &c.). announced
the rebellion as at an end throughout the United States, the State of
Texas only excepted. Ileld^ in view of these proclamations, that, so
far as concerned the exercise of military authority and jurisdition,
martial law might be considered to have existed in the District of
Colum])ia. from Sept. 24, 1862, as to the classes of persons indicated
in the proclamation of that date, and from Sept. 15, 1863, as to other
classes of persons indicated in the proclamation of that date, to April
2, 1866, the date of the proclamation issued at the end of the war.*
XXXV, 177, Fehruary, 187If..
1644. Martial law is defined as militar}' authority exercised in accord-
ance with the rules and usages of war;'^ and "Martial Law at Home"
(or, as a domestic fact) as military power exercised in time of war,
insurrection or rebellion, in parts of the country retaining their alle-
giance, and over persons and things not ordinarily subject to it.^
Martial law as a domestic fact presupposes a condition in which the
civil courts are unable to enforce their processes, and is justified by
the necessity of society's protecting itself by suppressing the resist-
ance, so as to enable the civil courts to fulfill their proper functions.
^"It would seem to be conceded that the power to suspend this writ" (the writ
oi Jiabeas corpus) "andthat of proclaiming martial law, inchide one another. * * *
Tlie ri<»ht to exercise one power implies tlie right to exercise the other." 9 Am, Law
Reg. 507-8. And see Ex park Field, 5 Blatch: 82.
^Instructions for the Armies of the L'nited States in the Field, (r. O. 100, A. G. 0.,
1863.
» Manual for Courts Martial (1901), j). 5.
MAXIMUM PUNISHMENT. 453
It is the suspension of all law but the will of the militaiy commanders
entrusted with its execution, to be exercised according to their judg-
ment, the exigencies of the moment and the usages of the service, with
no lixed or settled rules of law, no definite practice, and not bound by
even the rules of the military law. ^ When martial law prevails the
civil power is superceded b}^ the military power, and the ordinary
safeguards to individual rights are for the time being set aside," but it
is incumbent on those who administer it to act in accordance with the
principles of justice, honor and humanity and the laws and usages of
war.=* Card 8383, Maij. 1900.
1645. A proclamation declaring that a "state of insurrection and
rebellion " exists in a particular region of a state is in eif ect a declara-
tion of martial law, but such declaration is not essential. Martial law
as a domestic fact exists when, the resistance to law having reached
such a stage that the civil authorities are powerless to cope with it,
the military take control to suppress the resistance and restore the
civil authorit3^ Such martial law ceases when the necessity for it
ceases. It ceases when the civil authorities resume their unobstructed
functions, although the military may be present to aid them if the need
of such aid should arise. Card 8383, siqyra.
1646. When the United States is called upon to protect a State
against ''domestic violence," its militar}^ forces act in aid of the State
authorities to the extent necessary to re-establish the civil authoritj';
they are not however under the command of the State authorities, but
of their military oificers under the President. To this extent they are
an independent force, operating under the orders of the President, to
perform a duty to the State imposed upon the United States by the
Constitution.* Card 8383, supra.
MAXIMUM PUNISHMENT.'
1647. In a case where, because of previous convictions, the punish-
ment may, under G. O. 21 of 1891, be dishonorable discharge, the
department commander ma}- properly require the charges to be brought
'Pomeroy's Constitutional Law, § 712; Finlason on Martial Law, p. 107.
■■'See Lieber's L'se of the Army iu Aid of the Civil Power, p. 786, post.
^ As to the rights, duties and obligations of a military commander who is directed
to suppress an insurrection in a State, see Birkhimer's Military Government and
Martial Law, pp. 395-399.
*See Report No. 1999, House of Representatives, 56th Congress, 1st session (Cceur
d'Alene Labor Troubles).
^ " Whenever by any of the articles of war, * * * the punishment on convic-
tion of any military offence is left to the discretion of the court-martial, the punish-
ment therefor shall not in time of peace be in excess of a limit which the President
may prescribe." Act of Sept. 27, 1890.
Under this act executive orders prescribing maximum punishments have been
issued. See General Orders 21 A. G. O., 1891; do. 16 of 1895; do. 16 of 1898; do. 88
of 1900; do. 42 of 1901.
454 MAXIMUM PUNISHMENT.
to trial before a general court martial, notwithstanding that, if the
alternative punishment of di,shonora))le discharge be not resorted to,
the punishment would be within the power of an inferior court. 60,
378, July. 1S93.
1648. An offence covered by G. O. 21 of 1891 is cognizable by-
inferior court martial whenever the limit prescribed in the order may,
by substitution of punishment under the provisions of the order, be
brought within the punishing power of inferior courts as defined by
the 83d Art. of War. 60, 484, July, 1S93.
1649. The tel^n "day" or " days'\ when used in G. O. 21 of 1891, has
reference to a day of twenty-four hours. 53, 149, April, 1892.
1650. A sentence of a summary court forfeited one month's pay in a
case where, under G. O. 21 of 1891, the maximum legal forfeiture was
ten dollars. Held that the sentence was void as to the forfeiture in
excess of the limit, and adiyised that the amount collected in excess of
such limit be refunded to the soldier. 55, "il^^, August, 1892.
1651. It is now held by the War Department that when a sentence
of confinement or forfeiture exceeds the prescribed limit, the part
within the limit is legal and may be approved and carried into
execution.' 55, 349, September, 1892.
1652. The term "authorized confinement" as used in Article IV, of
G. O. 16, of 1895 (now Art. IV, G. O. 42 of 1901) is not limited to the
maximum authorized. Confinement for a period less than the maxi-
mum is also authorized confinement. The article means that when the
maximum term mav be more than six months, dishonorable discharge
with forfeiture of pay and allowances mav be awarded with whatever
confinement, within the prescribed limit, the court may adjudge.
Card 1.551, July, 1895. Held also that such " authorized confinement"
is limited to the specific confinement authorized b}^ Article II, or if
not provided for therein, by the custom of the service; that is to say,
such confinement may not be increased b}^ substitution of confinement
for forfeiture, or on account of previous convictions, the same not
being provided for by the terms of Article IV. Card 8543, Jidy, 1900.
1653. By the third subdivision of Art. Ill of the Executive order
of March' 30, 1898 (G. O. 16 A. G. O., 1898), it is provided that in
consideration of previous convictions the limit of punishment shall be
"dishonorable discharge, forfeiture of all pay and allowances, and
confinement at hard labor for three months." Such a sentence means,
so far as the forfeiture is concerned, forfeiture of pa}^ and allowances
due at the date of the discharge. A court martial when it has the
power to award this sentence may award a lesser one, but in doing so
' See par. 2, Circ. 12, A. G. 0. 1892.
MEDAL OF HONOR. 455
cannot award confinement and forfeiture greater in amount than con-
finement for three months and forfeiture of pay and allowances due,
or its equivalent under the rule of substitution authorized in the
order. ^ Card 8694, Ajyvll, 1898. See Cards 2381, Ju7ie, 1896; 2751,
November., 1896.
1654. The order prescribing maximum punishments also provides
for certain substitutions of punishment. The purpose of these pro-
visions is not onty to determine the measure but also the kind of punish-
ment, which should be considered authorized, so far as the offences
specified in the order are concerned. Thus where the prescribed limit
is forfeiture and confinement, a reprimand in lieu thereof cannot legally
be adjudged. Card 436, October, 189 J,..
MEDAL OF HONOR.
1655. The original enactments of 1862 and 1863, providing for the
award of medals of honor, and appropriating moneys for the expenses
of the same, evidently contemplated a personal presentation to the
selected recipient. Such is also inferably the design of the present
Army Regulations, wherein (Art. XXVI) the medal of honor is assimi-
lated to the certificate of merit, each being manifestly intended to honor
and distinguish the recipient in person. Held therefore that (except
bj' special authority of Congress) a medal of honor could not legally
be awarded to the widow, or a memlier of the family, of a deceased
officer, on account of distinguished service in action performed by the
latter during his lifetime. 49, 55, Septemher., 1891; 52, 30, March., 1892.
1656. Par. 175, A. R. (177 of 1895), like the provision, upon which it
is based, of the act of March 3, 1863, is deemed to contemplate, in a case
of an award to an officer, that the person shall be a commissioned
ofiicer of the army at the time of the award. A contract or acting
assistant surgeon is not, and was not at any time, such a commissioned
oflScer. Held therefore that a medal of honor could not legalty be
awarded to a person for alleged distinguished service rendered while
serving in the field as an acting assistant surgeon in 1864, who more-
over had had no connection with the army since 1865.^ 52, 404, March,
1892: 53, 167, April, 1892; Card 1128, March, 1895.
1657. On July 12, 1862, a resolution was passed providing that the
'Since the rendition of this opinion, the Executive order referred to has been
amended by adding thereto tiie following (G. 0. 88, A. G. O. 1900) : "Article IX. If,
in cases where the limit of punishment is dishonorable discharge, forfeiture of all
pay and allowances and confinement at hard labor for a stated number of months,
dishonorable discharge be not adjudged, the limit of forfeiture shall be all pay due
and to become due during the prescribed limit of confinement. " See Art. V of
Executive order, published in G. O. 42, A. G. 0., 1901 (Court-Mar. Manual, 1901, p. 56).
-See opinion in this case of the Attorney General in 20 Opins., 421.
456 MEDICAL OFFICER.
President cause two thousand medals of honor to be prepared with
suitable emblematic devices, and direct the same to be presented, in
the name of Congress, to such non-commissioned officers and privates
as should most distinguish themselves b}^ their gallantry in action and
other soldier-like qualities, " during the present insurrection", and ten
thousand dollars was appropriated to pay the cost of the same. Nearly
a year afterwards, on March 3, 1863, and while "the insurrection" was
still in progress a section in a sundry civil bill then enacted, provided
that the President should cause to be struck from the dies prepared
for and used to make the two thousand medals of honor, "medals of
honor additional to those;" and that he should present the same to
such officers, non-commissioned officers, and privates, as have distin-
guished or who ma}" hereafter most distinguish themselves in action;
and twenty thousand dollars was appropriated to pa}' the cost of the
same. The second act must necessarily be held to provide for the
same kind of medals as those provided for in the first; for it provides
for them to be struck from the same dies. They were to be given to
the same class of persons — non-commissioned officers and privates —
and also officers. The first act provided for them to be presented by
the President in the name of Congress; the second provided that the
President should present them, without expressly providing that they
should be presented in the name of Congress. The first expressly
provided that the gallantry or other soldier-like conduct, on account
of which the medals were given, should be displayed in the then
existing "insurrection". The other provided that they should be
given on account of gallantry theretofore or thereafter displayed. It
has not heretofore been held that the gallantry should be confined to
actions in the war of the rebellion. The practice has been in accord-
ance with this view; and as the literal meaning of the language of the
later act sustains it, the practice should not be changed. Card 4159,
May, 1898.
MEDICAL OFFICER.
1658. The medical officer of a command is responsible (within reason-
able limits) for the health of the men composing it. Where, in the
course of the proper and regular performance of his function he
excuses men from duty on account of sickness or disability, the com-
manding officer should almost as a matter of course accept his action
as conclusive and final. If he refuses to do so and orders on duty a
soldier thus excused, he assumes the responsi])ility of any material
injury that may thus result to the individual or the service; and if
injury results in fact, is amenable to trial for the military offence
involved. XLIII, 250, Ifarch, 1880.
MEMBER OF COURT. 457
1659. A medical officer of a post or station is legally eligible for
service on courts martial, either as a mem})er or a judge advocate (see
§§ 199 and 1521, a?ife); and in small commands, surgeons and assistant
surgeons are not unfrequently detailed upon such service. In view,
however, of the fact that a medical officer of a post, with a hospital or
sick men under his charge, is practically continuously "on duty"
(see § 4:S, ante), besides requiring a considerable time for stud}', it is
deemed to be in general prejudicial to the interests of the service to
detail such officers upon courts martial where it can well be avoided.
XXII, 536, Decemler, 1866; XXIII, 522,' June, 1867.
1660. Par. 1309, Army Regulations of 1863, authorized the employ-
ment, for officers or soldiers, of the services of a private physician at
the expense of the United States " when the attendance of a medical
officer cannot be had." Where the medical officer of a post declined
to attempt a difficult operation required to be performed upon an offi-
cer, and recommended that an expert be employed, and a private physi-
cian was so employed accordingly, advised that the case was substan-
tially within the provisions of the regulations, and that the reasonable
account of such physician would properly be paid "by the medical
bureau."^ X.'Xiy.,^'!?,, June, 1869.
1661. Medical practice 1)}^ officers of the Medical Corps of the Army,
outside of military posts, should conform to the laws of the State,
but this is subject to the qualification that medical treatment of
members of the Armj" on the active list, being an instrumentality of the
United States government, cannot be controlled by State legislation,
and may be furnished wherever the soldier ma}' be stationed. Under
A. R., 1151 (1651 of 1901), enlisted men on the retired list are allowed
medical attendance at the stations of medical officers only. By par.
1150 (1653 of 1901), medical officers on duty are required to attend
officers and enlisted men and vf\iQn jyracticahle their families. Medical
officers in their attendance upon the families of officers and enlisted men,
outside of military posts, would have to comply with the State laws;
otherwise such attendance would not be "practicable." So in the
treatment of civilians not living on military reservations, the laws of
the State would have to be complied with. Card 3270, June, 1899.
MEMBER OF COURT."
1662. A member of a court martial, though strictly answerable
only to the convening authority for a neglect to be present at a session
^See now as to the employment and payment of "civil physicians," pars. 1452-1456,
A. R. of 1895 (1655-1659 of 1901).
^ As to the liability of members of courts martial to perform duty with their com-
mands, see paragraph 918, Army Regulations of 1895 (1019 of 1901).
458 MEMBER OF COURT.
of the court, will properly, when prevented from attending, coniniuni-
cate the cause of his absence to the president or judg-e advocate, so that
the same may be entered in the proceedings. Where a member, on
reappearing after an absence from a session, fails to offer any explana-
tion of such absence, it will be proper for the president of the court to
ask of him such statement as to the cause of his absence as he may
think proper to make.^ XXX, 315, Maij^ 1870.
1663. It does not invalidate the proceedings of a court martial that
a member who has been present during a portion of the trial, and has
then absented himself during a portion, has subsequently resumed his
seat on the court and taken part in the trial and judgment. Nor is the
legal validity of the proceedings affected bj^ the adding of a nar mem-
ber to the court pending the trial. In either case, however, the testi-
mony which has been introduced and the material proceedings Avhich
have been had w^hile the new or absent member was not present should
be communicated to him before he enters, or re-enters, upon his duties
as a member. Such was the ruling of the Secretary of War on Genl.
Hull's trial,' and this precedent was followed in repeated, though not
frequent, cases during the civil war. For a mem])er, however, who
has been absent during a substantial part of a trial to return and take
part in a conviction and sentence, is certainly a marked irregularity,
and one which ma}^ well induce a disapproval of the tindings and sen-
tence in a case where there is reason to believe that the accused may
have suffered material disadvantage from the member's action. VII,
128, 411, 467, February and Ilarch, 1861^; VIII, 602, July, 186k;
XXVII, 584, Mmch, 1869.
1664. To add a neiu member to a military court after any material
part of the trial has been gone through with, must alwa}" s be a most
undesirable measure, and one not to be resorted to except in an excep-
tional case and to prevent a failure of justice. Adding a member after
^See Court-Martial Manual (1901), p. 22, par. 3. It need scarcely be added that the
absence of a member does? not affect the legality of the proceedings, provided a
quorum of members remain. See 7 Opins. At. Gen., 101.
''See the reply dated March 7, 1814, of the Secretary of War, Hon. John Arm-
strong, to the communication of the " acting special judge advocate," Hon. Martin
Van Buren, submitting questions for the court. (Forbes' Trial of Hull, Appendix,
pp. 28-29. ) It was indeed held by Attorney General Berrien (2 Opins. 414) that a
member of a court martial who has absented himself during the taking of testimony
is disqualified to take part in the sentence. Attorney General Gushing, however,
held in a later opinion (7 Opins. 98) that whether the absent member should resume
his seat and act upon his return "must depend upon his own views of propriety."
The Court-Martial ^lanual provides (]). 2<), edition of 1898) that "no member
who has been a1)sent during the taking of evidence shall thereafter take part in tlie
trial." This [jrovision was at first viewed as mandatory and a faiUn-e to comjily
with it held to invalidate the sentence adjudged, but later the AVar l)e]>artment 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<i(> 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><t. 1868;
XXIX, 620, January, 1870; XXX, 181, 3farch, 1870.
1691. The jurisdiction of a military commission convened under the
' The constitutionality of this act and the legaUty of the institutinii under it of
miUtarv commissions were affirmed by At. Gen. Hoar in i;^ Opius., 59-(37.
^Compare Ihiited States r. Tynen, "ll Wallace, 88, where it is held that, "there
can be no lejral conviction, nor any valid judjj;ment pronounced upon conviction,
unless tlie law creatinir tiie offence lie at the time in existence." And to a similar
effect, see United States r. Finlay, 1 Ab., U. S. K., 364.
MILITAEY OFFENCE. 469
law of war may be exercised up to the date of a peace agreed upon
between the hostile parties or the declaration l)y the competent author-
ity of the termination of the war status/ XX, 484, March., 1866.
1692. A military commission, convened for the trial of offences under
the law of war, has no jurisdiction of civil suits or proceedings, either
based upon contract or brought to recover damages on account of
private tvansactions or personal injuries.^ Ill, 190, JuJij, 1863; V, 86,
Octoher, 1863: IX, 205, May, 186 J^: XI, 657, Aj^riJ, 1865.
MILITARY COMMISSION— SENTENCE.
1693. Kxcept in a case of a spy whose sentence must be death (Sec.
1343, Rev. Sts.), the discretion of the militar}^ commission in the
imposition of sentence is not in terms restricted or defined by the
existing law. VII, 62, January^ 186Jf.. The sentence, however, should
award a criminal punishment: a judgment of debt or damages, on con-
viction of a criminal offence, would be irregular and properly disap-
proved. Ill, 190, July., 1863. Where a militar}^ commission was
acting under the reconstruction laws, practically as a substitute for a
State criminal court, held that it should, in general, in determining
the proper measure of punishment to be inflicted, take into considera-
tion the State statute law, if an}", prescribing the penalty or penalties
for the offence.' XXIX, 406, JYovemher, 1869.
1694. A military commission before which an enlisted man has Ijeen
legally tried and convicted is empowered to include in his sentence the
punishment of dishonorable discharge. Trials indeed of soldiers by
militar}" commission have not been frequent, and sentences adjudged
by them of dishonorable discharge have been still more rare. 41, 18,
May, 1890: 52, 96, Fehricary, 1892; 60, 164, 244, Jime, 1893.
MILITARY OFFENCE.
1695. Militar}" offences proper arc simpl}" violations of the laws,
orders, or rules of discipline governing the militar}- state. Such
offences are neither "felonies'' nor "misdemeanors" in the legal sense
'See 14 Opins. At. Gen., 250, where this principle is apphed to an Indian war.
See also 5 id., 58.
^ See State r. Stillman, 7 Coldw., 341; G. 0. 1, Dept. of the Missouri, 1862. As to the
civil jurisdiction of special courts and commissions instituted during the civil war, see
note to § 1577, (i)de.
^Excei)t where the death sentence was pronounced, the punishment adjudged by
military commissions during the war of the rebellion was, in the great majority of
cases, an imprisonment for a certain term or "till the end of the war." Fines were
sometimes imposed and a sending beyond the lines of the U. S. forces was not infre-
quent. A confiscation of property was also occasionally adjudged. In many
instances, m lieu of any punishment, it was directed or reconnnended by the com-
mission that tlie accused be I'etjuired to take an oath of allegiance, or give a parole,
and in some cases also to give a bond for future loval ]:)ehavior.
470 MILITARY PRISON.
of those terms, nor can an officer or soldier, convicted of an offence of
this class, properly be subjected to any of the consequences attaching
to a felony. LIII, 14, Si^pUmhtr, 1886; 27, 71, September. 1888. Thus
/ield that a soldier convicted b}'- a court martial, assembled within the
State of Kansas, of the offence of swearing falseh' as a witness before a
previous military court, could not be subjected to any disability attach-
ing to a conviction of perjury as a felony by the laws of that State; his
offence, as found, not being a civil crime but simply "conduct to the
prejudice of good order and military discipline."^ XXXVIII, 219,
Atigiist, 1876.
MILITARY PRISON.-
1696. The proceeds of sales of articles manufactured by the pris-
oners at the military prison are clearly public funds, and, in the
absence of any statutory provision in regard to their disposition — Sec.
1351, Rev. Sts., only requiring that they shall be "accounted for" as
received b}^ the commandant — cannot legally be expended in repair-
ing or improving the prison building, or otherwise, without authority
of Congress. XLII, 24, October, 1878.
1697. ILld that, under the general authority vested in the Secretary
of War l)y Sec. 1351, Rev. Sts., to direct as to the disposition of the
articles manufactured by the convicts at the military prison at Leav-
enworth, and in the absence of anything in Sec. 3716, Rev. Sts., or
elsewhere in the statute law relating to contracts, precluding such
action, the Secretary was empowered to order that the shoes made
by the prisoners should be turned over to the Quartermaster Depart-
ment for issue to the army. XLI, 427, October, 1878.
1698. //(/(-Z that the provisions of Sees. 1345 and 1346, Rev. Sts., in
respect to the organizing, &c., by the Secretary of War, of the board of
government of the military prison, did not simply vest a discretion in the
Secretary to do or not to do, in whole or in part, as therein prescribed,
but, imposing as they did a public duty, should l)e construed as man-
dator}" upon him, and thus as properlj" requiring him to maintain such
board with the members, both military and civil, as specified in the
former section, and with it to visit the prison as directed in Sec. 1346.
XLI, 675, September, 1879.
^The term "convicted of a felony," employed in Sec. 1118, Rev. Sts., as amended
by the act of Feb. 27, 1877, forbidding the enlistment of persons "convicted of a
felony," refers (-learly to a conviction i)y a criminal court of the United States, or of
a State or Territory for of the District of Columbia) of an offence made a felony by
the laws of the same, or by the common law as rccoirnized therein.
'■^The military jn-ison here referred to was the military prison at Fort Leavenworth,
Kans. The Sundry Civil Act of INhirch 2, 1895, provided for its transfer from the
Department of War to the Department of Justice, the i)risou to \)v tiicreafter known
as the United States renitentiary, and the transfer was duly effected.
MILITARY RESERVATIOISr. 471
MILITARY RESERVATION/
1699. A niilitaiy reservation, being .sinipl}- territory of the United
States witiidrawn from sale, pre-emption, &c.,~ the mere fact of the
^ The Constitution (Art. IV, Sec. 3, par. 2) has vested in Congress the exclusive power
"to dispose of and make all needful rules and regulations respecting the ierritory'J
(held in U. S. v. Gratiot, 14 Peters, 537, to mean "lands") "or other property belong-
ing to the United States. " As a consequence perhap.s of the indetiniteness of this grant
(see 7 Opins. At. Gen. 574) no general enactment providing for the setting apart of
land for military reservations has ever been made by Congress. . In a few cases,
indeed, a special authority to establish a military reserve has been conferred upon
the President by statute, but the great majority of the military reservations hereto-
fore located or now existing have been made by the President without any such spe-
cific authority whatever. But though no general authority has been directly given
by Congress for the reserving of lands for military purposes, an authority for the pur-
pose has been deemed to exist, and this authority is found in the usage of the Execu-
tive department of the Government, as indirectly mnctioDcd by Congress in repeated
pre-emption acts, acts relating to the survey of the pul)lic domain, appropriation
acts, etc., in which lands reserved for military purposes by the President have been
in general terms excepted from sale, exempted from entry, &c. , or special provision
has been made for the cost of improvements to be erected upon the same. In Grisar
r. ^h'Donald, 6 Wallace, 381, the C. S. Sujireme Court, l:)y Field J., observes: —
'•From an early period in the history of the Government, it has been the practice of
the President to order, from time to time, as the exigencies of the public service
required, parcels of land belonging to the United States to be reserved from sale and
set apart for public uses. The authority of the President in this respect is recognized
in numerous acts of Congress." The court then cites several statutes as containing
this recognition, including the pre-emption acts of May 29, 1830, and Sept. 4, 1841,
and adds: "The at-tion of the President in the making the (military) reservations"
(the title to which was at issue in the particular case) "was indirect!}' approved by
the legislation of Congress in appropriating moneys for the construction of fortifica-
tions and other public works upon them." And see 12 Opins. At. Gen., 381; 14 id.,
182; 17 id., 258; Wilcox r. Jackson, 13 Peters, 512; U. S. v. Hare, 4 Sawver, 653;
also U.S. V. R. R. Bridge Co., 6 McLean, 517; 1 Land Dec. (Int. Dept. ), 30, 702; 6 id.,
18, 317; 13 id., 426, 607. 628; 8 Fed. Rep., 883; 12 id., 449; 92 U. S., 733; 101 id., 768;
5 Wall., 681.
It is moreover to be noted that the provision of the act of 1841, referred to by the
Supreme Court, has been incorporated as a general enactment in the Revised Statutes,
in the Chapter (Ch. 4 of Title XXXII) on pre-emptions; Sec. 2258 expressly except-
ing from the lands of the United States "subject to the rights of pre-emption" —
"lands included in any reservation by any treat j% law, or proclamation of the Presi-
dent for any purpose." And see Sec. 2393, specifically excepting military reserva-
tions from the operation of the laws authorizing the establishing of town-sites.
The "proclamation" of the President reserving lands for military purposes is usu-
ally in the form of a military general order, issued by the Secretary of War, whose
act in this, as in other administrative proceedings pertaining to the military adminis-
tration, is in legal contemplation the act of the President whom he represents. See
§ 2294, }>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 <lelegate his duties to another." And the same author says (§ 529) :
"It is, therefore, the general rule that one may ratify the previous unauthorized
doings by another in hisl)ehalf, of any act and of that only which he might then and
V
518 ORDER IN GENERAL.
attempt to manufacture a fact as happening- in the past it is important,
but not diiiicult, to disting-uish. Thus all orders in the cases of officers
and enlisted men, which purport to make appointments, acceptances of
resignations, discharges from the service, or muster-out of service
date from, or take eti'ect from, dates prior to the issuance of the orders
therefor, are instances of the attempts referred to and are illegal. Card
8962, September, 1900.
1852. Where an officer, who had been tried l)y a court-martial was,
while awaiting the promulgation of the proceedings, taken prisoner by
the enemy, and, after his capture, an order was published in his regi-
ment, by which a sentence pronounced by the court, dismissing him
from the service, was duly conlirmed — held, that as he was beyond the
control of the national authorities at the time of such publication, he
could not be regarded as notitied of such order or affected by it; and
that he therefore continued to be an officer in the army and entitled to
pay as such up to the date — about six months subsequent to his cap-
ture — when, upon being exchanged, he returned to his regiment in
the field and was tirst notilied of his dismissal as approved. XII, 230,
January, 1865. See § 20H2, ^^asf, and note.
1853. The order of a commanding officer will in general constitute a
sufficient authority for acts regularly done b}^ an inferior in compli-
ance with the same. Where, however, the order of the superior is a
palpably illegal order, the inferior cannot justify under it;^ and if
brought to trial by court martial, or sued in damages for an act done
by him in obedience thereto, the order will be admissible only in
extenuation of the offence." XXV, 592, June, 1868.
In the Fair case {In re Fair, 100 Fed. Rep., 119) the following lan-
guage of the court in McCall v. McDowell (Federal Cases, No. 8673) is
cited with approval: "Except in a plain case of excess of authoritv,
could still lawfully do himself, and which he might then and could still lawfully
delegate to such other to be done."
Whether the foregoing can, in all strictness, be applied to military relations, I am
not entirely prepared to say. Theoretically it is, I think, correct, but I believe that
it has not been very closely adhered to in practice. The jierformance of acts of a
purely ministerial or executive nature can always be delegated or ratified, unless
expressly prohibited or the power is expressly exclusively vested in the superior.
(Note bv Judge- Advocate General to opinion of Sept. 14, 1900, Card 8962, supra.)
'8ee Harmony /■. Mitchell, 1 Blatch., 549; Mitchell r. Harmony, 13 How., 115;
Durand r. Hollins, 4 Blatch., 451; Holmes v. Sheridan, 1 Dillon, 357; McCall v.
]Mcl)ovvell, Deady, 233, and 1 Al). U. S. R., 212; Clav r. United States, Devereux (Ct.
Cls.), 25; United States r. Carr, 1 Woods, 480; Bates r. Clark, 5 Otto, 204; Ford v.
Surget, 7 6tto, 594; Skeen v. Monkeimer, 21 Ind., 1; (iriffin r. Wilcox, id., 391; Riggs
V. State, 3 {\)ldw., 851; State r. Sparks, 27 Texas, 632; Keighly r. Bell, 4 Fost. and
Fin., 805; Dawkins v. Rokeby, uL, 831. The law is the same although the order to
the inferior may emanate directly from the President. See Eifort v. Bevins, 1
Bush, 460.
^ State ('. Sparks, .sM^ra; Mc(,"all '■. 3IcI)<>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;
<Jard 1226, April, 1895.
ORDNANCE DEPARTMENT.
1861. It is required, in general and comprehensive terms b}" Sec.
1167, Rev. Sts., that all officers^ persons, &c., who may be ■ ntrusted
with any ordnance stores or supplies, shall make certain regular
returns to the Chief of Ordnance of such property in their possession
or charge, according to certain forms and regulations to be prescribed
by that officer with the approval of the Secretary of War. The act
of March 3, 1879, c. 183, authorizes and directs the Secretary of War,
at the request of the head of an}^ department, to issue arms and
amumnition, when r quired for the protection of the pul)lic mone}^
and propert}^,- — "to be delivered to any officer" of such department
as maj'' be designated b}" the head of the same, and to be accounted
for to the Secretary of War. TLld that the provision of Sec. 1167
might properly be regarded as applying to the class of officers indi-
cated in this act, who therefore would properly be required to furnish
the returns prescribed by that section, XLII, 210, Jfarcli., 1879.
1862. Held that Section 1167, Revised Statutes, does not direct or
authorize the Chief of Ordnance, subject to the approval of the Sccre-
tar}' of War, to draw up and enforce in his department a system of
rules and regulations for the inspectloji of ordnance property with a
view to its condemnation and sale or destruction. Card 63, July^
1891^.
1863. An officer of the line, on passing the examination for a ^'acanc3"
in the Ordnance Corps, does not become an ordnance officer by a mere
transfer. He nmst be appointed, confirmed and commissioned in the
usual wav. 37, 156, Dtcemher, 1889.
' The insertion, in an order of publication, of tlie proceedings had upon a re-assem-
blin<i: of the court for a revision of its findings or sentence, though at one time occa-
sionally resorted to, is now unusual. Such an addition can hardly be ])ertinent except
where it is designed as a basis for special comments, on the i)art of the reviewing
officer, upon the action of the court in connection with the matter of the revision.
522 TARDON.
1864. The Army Appropriation Act of June 16, 1892, provided: —
"That sergeants of ordnance shall receive the same allowances of
clothing as other sergeants in like staff departments." Held that this
provision entitled these sergeants to receive, free of cost, a certain
number of units of the different articles that go to make up their
clothing, or, when the allowance was expressed in dollars and cents,
the amount which such articles would cost when made up in the form
and style required for such sergeants. 55, 326, Septemher, 1S9£.
1865. JTeld that Section 1765, Revised Statutes, does not prohibit the
payment of compensation to an ordnance sergeant for work as "time
keeper" under the United States Engineer Department, such employ-
ment having no affinity or connection with the line of his official duty ^
as ordnance sergeant and not interfering in any way with the same.
Card 2570, September, 1896.
P.
PARDON.
1866. The President is empowered, by Art. II, Sec. 2, par. 1, of the
Constitution "to grant reprieves and pardons for offences against the
United States "; and a pardon, like a deed, must, in order to take effect,
be delivered to and accepted by the party to whom it is granted.'
Thus there can be no pardon of a deceased officer or soldier; and that
the pardon is asked by the party's widow or heir, who is to be pecu-
niarily benefited thereby, cannot affect the principle. XV, -186, 654,
Jidy and Seiytemher, 1866; XXI, 564, and XXII, 291, July, 1866.
So where, in a case of an officer who had died while under a sentence
of suspension from rank, a pardon was asked for the purpose of hav-
ing the stigma removed from his record in the service, Jteld that the
case was not one in which the pardoning power could be exercised.
VII, 138, Fidwaary, 1861^.
1867. It is the effect of a full pardon (otherwise of a mere remission
of the punishment— see Remission) to remove all penal consequences
(except of course executed penalties — see § 1869, j)ost) and all disabili-
ties, attached by U. S. statute (or arm}^ regulation) to the offence, or to
the conviction or sentence.^ Thus the pardon of a convicted deserter
will relieve him from the loss of the rights of citizenship attached b}^
the act of March 3, 1865 (Sees. 1996, 1998, Rev. Sts.) to a conviction
^See Converse v. U. S., 21 Howard, 463; U. S. r. Brindle, 110 U. S., 688; Meigs v.
U. S., 19 Ct. Cls., 497. See, also, § 1812, ante, and notes.
2 United States?'. Wilson, 7 Peters, ITiO; Jure De Tny, '.) lienedict, 307; 6 Opins.
At. Gen., 403. And, in tlie al)sence of an express rejection, it is conclusively i)re-
sumetl to he accejjted on actual or constructive notice.
^2 Opins. At. Gen., 81; Kc parte (Jarland, 4 Wallace, 380.
PARDON. 523
of desertion.' XXXI, 183, Julrxa/'y, 1871. But a pardon b}^ the
President will be ineftectual of course to remove a disqualification
incurred by the oti'ender under a State statute." XXIX, 251, Sep-
ttiiihti\ 1869,' XLI, -1(35, Xovemha^ 1878.
1868. Held that a pardon extended to an enemy for his offence or
offences as skc/i, committed during the war, did not entitle him to be
paid rent for the occupation of his real estate by the U. S. military
authorities while occupying by the right of conquest the region of
country in which such estate was situated. XXII, 5, 16, March., 1866.
1869. A pardon cannot reach or remit a fully executed sentence,
though the same may have been unjustly imposed. VIII, 228, Ajyril,
1864-,' XXXVI, 631, August, 1875. A pardon cannot of course undo
a corporal punishment fullv inflicted;^ nor can it avail to restore to the
arni}^ an officer or soldier legally separated therefrom and made a
civilian by a duh' approved sentence of dismissal* (see I § 1199, ante).,
or by a dishonorable discharge. XII, -±27, and XIV, 568, June, 1865;
XX, 302, January, 1866; XLI, 465, Novemler, 1878; Cards 2049, 2216,
2174, 2809, Fehruary to Deceinher, 1896; 3810, January, 1897; 5624,
January, 1899. Nor can it restore a fine paid (XVI, 305, June, 1865;
XXXV, 471, July, 1874), or pay forfeited (XX, 90, Octoler, 1865;
XXVIII, 567, JSLay, 1869), when the amount of the same has once gone
beyond the control of the Executive and been covered into the U. S.
Treasury and become public funds,'' whatever may have been the merits
of the case. XXXVI. 192, January, 1875; XXXVII, 445, 2rapch,
1876; 34, 334, August, 1889; Card 3810, suimi. Otherwise, however,
where the money still remains in the hands of a military disbursing offi-
cer or other intermediate official.** XVI, 676, Novemher, 1865. Where,
however, any portion of a punishment remains tmexecuted^ that por-
tion may be remitted by the pardoning power. ^ II, 29, Fehruary, 1863.
' 8 Opins. At. Gen., 284; 9 id., 478; 14 id., 124. And see People v. Bowen, 43 Cal.,
439. That this disability can attach only upon a conviction, see § 1061, and authori-
ties cited in note.
n Opins. At. Gen., 760.
3 8ee 8 Opins. At. Gen., 284.
n2 0]nns. At. Gen., 548; Ex pari e Garland, 4 Wallace, 381.
"2 Opins. At. Gen. 330; 16 id. 1. This, because the same Constitution which con-
fers the pardoning power contains a provision "of equal etiiciency " (Art. 1, Sec. 9
par. 7, ) to the effect that money iji the iiul)lic treasury shall not be withdrawn except
by an approi)riation made by law. 8 id. 281. Compare, in this connection, Knote
r. I'nitcd States, 5 Otto, 149, where it was held that an executive pardon would not
entitle a party to the proceeds of certain personal effects, confiscated and sold by the
United States as the property of an enemy, after such proceeds had been duly paid
uito the Treasurv. See, also, §§ 1272 and 1273, ante.
■ M4 Opins. At. Gen., 601. But see A. R. 952 of 1895 (1053 of 1901).
"And the Executive, in the exercise of the pardoning power, "may pardon or
remit a portion of the sentence at one time and a different portion at another." 3
<-)pins. At. Gen., 418.
524 PARDON.
Congress alone can restore pay fully forfeited to the United States, or
otherwise pecuniarily indeuniif}' an officer or soldier for the conse-
quences of a leg-all}' executed sentence. XLIV, 270, January^ 1881;
34, 334, August, 1889.
1870. It is the efl'ect of the exercise of the pardoning power by the
President to relieve the party from all punishment remaining to lie
suffered. Where, therefore, he remits the unexecuted portion of a
term of imprisonment, an additional penalty, which, 1)}' the express
terms of the sentence, was to be incurred at the end of the adjudged
term, as a dishonorable discharge from the service, cannot be enforced.
The pardon having intervened, the sentence ceases to have an}' effect
whatever in law, and the soldier — the remainder of his service being
regular — must be honorably discharged, VIII, 669, -/?//?/, 1861}.; XX,
460, 2[<:irch, 1866.
1871. The pardoning power extends to continuing punishments, or
punishments which are never fully executed, — remitting, in each case
the punishment from and after the tals;ing effect of the pardon. Of
this class is the punishment of disqualification to hold military or pub-
lic office, as also that of the losing of or reduction in "files" (or rela-
tive rank) in the list of officers of the offender's grade: these being
continuing punishments, may be put an end to at any time by a remis-
sion by the pardoning power. ^ XXX, 262, Ajjril, 1870; XXXI, 24,
Novemher, 1870; XLI, 158, 3farch, 1878; 41, 380, Juhj, 1890; 66,434,
Decentl)er, 189%; 60, 348, July, 1893.
1872. Where a soldier has been duly convicted of desertion, the loss
of the rights of citizenship incident thereto are in practice restored by
a formal pardon from the President; a remission of the punishment
adjudged by the court martial does not have such effect. Card 3010,
June, 1897.
1873. While to restore to or place upon duty an officer or soldier,
when under arrest or charges on account of an alleged offence, would
not probably in this country, to the same extent as in England,' be
regarded as operating as a condonation of the offence, the promotion
of an officer while under sentence or awaiting action on the sentence
has been viewed as a Gonstriictive 2Mrdon of the offence or offences on
account of which he has been tried. ^ But held that such a promotion
could not operate as a pardon of other offences committed b}' him, of
the commission of which no knowledge was had b}- the Executive at
the date of the promotion. XXXV, 649, November., 187^.. While
iSee 12 Opins. At. Gen. 547; 17 id.?,\, 656; G. C. M. O. .54, 1884, and S. O. 116, A.
G. O., 1886; also G. C. M. O. 85, A. G. O., 1891.
■■^See ('l()(le. Mil. Forces of the Crown, vol. 1, p. 17.S; Prendergast, 244-5, in con-
nection with the cases cited of Sir Walter Raleigh, Lord Lucan, Capt. Achison, &c.
» See 6 Opins. At. Gen. 128.
PARDON. 525
ordering- or authorizing an officer or soldier, when under sentence^ to
exercise a command or perform an}^ other duty inconsistent with the
continued execution of his sentence, has been viewed as a constructive
pardon,^ Jidd that to allow an officer, while under a sentence of sus-
pension from rank, to perform certain slight duties in closing his
accounts with the United States, could not be regarded as having any
suc-h effect. XXXVII, 100, Decemhtr, 1875.
1874. In certain cases of military offenders convicted of larceny" of
public property or conversion of public funds (or who had escaped
from military custody while under charges for such offences) and
applying for pardon, advised that, even if otherwise thought worthy
of pardon, no pardon should be extended to them except upon the
condition precedent of their making good the funds appropriated, or
the property stolen or its value. I, 366, Octoher^ 1862; XIX, 132,
Novemher, 1865; XXVI, 648, July, 1868.
1875. The pardon or remission of the unexpired punishments of sol-
diers, where favored b}" the Judge-Advocate General, has been recom-
mended on grounds of which the principal were the following: — That
the soldier was a minor at enlistment; that hew^as enlisted under false
representations as to the kind of service which would be i-equired of
him, made by the recruiting officer in disregard of par. 916, Army
Regulations; that he enlisted as a mere recruit, did not have the
Articles of War read to him, and had no proper comprehension of the
gravity of his offence; that he did not comprehend his militar}^ obli-
gations on account of an imperfect knowledge of the English language;
that he was an Indian scout unacquainted with our language or with
the Articles of War; that his offence was wholly or in part induced
by harsh or injudicious treatment by a military superior; that exces-
sive or unreasonable duty had l)een required of him, or that he had
been put on duty (as a guard or sentinel, for example) when unlit for
the same on account of illness or partial intoxication; that his offence
was committed under a provocation, or was accompanied by circum-
stances of extenuation, to which the court had not given due weight;
that prior to his trial and sentence he had been adequately dlscipVined
by his comuiander; that he had been improperly held in irons, or
handcuffed, pending the trial; that his confinement had so seriously
impaired his health that if contiiuied it would endanger his life; that
an unreasonable time was allowed to elapse between his arrest and trial,
or after trial and before the approval and promulgation of the sentence.
These and other grounds have been taken into consideration, some-
times alone and sometimes in combination or in connection with such
further favorable circumstances as voluntary return in case of deser-
^ See 6 Opins. At. Gen. 71-4.
526 PARDON.
tion, previous good character, good conduct under sentence, &c. In
cases of officers, the principal grounds for recommending pardon or
remission have been — a previous good record for efficiency in the serv-
ice, especiallv in time of war, a high personal character or reputation,
and an apparent absence of a fraudulent or.criminal intent in the offence
as committed. IX, 2-i5, 595, June and Sej^teniher, ISGJf; XIII, 99,
December, ISGJ^; XXVI, 540, April, 1868; XXVII, 505, Fehruary,
1869; :JtXVIII, 340, January, 1869; XXXII, 675, June, 1872;
XXXIV, 661, Decernber, 1873; 40, 386, May, 1890; 41, 2T3, Jmie,
1890.
1876. In cases in which military offenders — such as deserters from
the army remaining at large, or officers or soldiers who have escaped
from military custody while in arrest or under sentence — have applied
from their places of refuge for executive pardons, it has almost inva-
rialjl}^ been ad/vlsed by the Judge-Advocate General that the applica-
tion be not entertained till the fugitive from justice should return and
surrender himself to the military authorities to stand his trial or abide
by his sentence. XVII, 264, Septemler, 1865; XIX, 132, JYovemher,
1866; 690, September, 1866; XXII, 2S5, July, 1866; XXIII, 309,
October, 1866; XXVI, 648, July, 1868; XXXIV, 661, Decemhei^, 1873;
XXXV. 551, August, 187 J^; XXXVIII, 607, 652, May and June, 1877;
XXXIX, 324, 326, November, 1877; XLIII, 171, January, 1880; 39,
482, Mwrcli, 1890; 44, 390, December, 1890; Cards 3304, 3656, June
and November, 1897; 5342, 5733, 5885, January and February, 1899.
1877. In cases of deserters from the army and from the draft, who,
during the war of the rebellion, when men of patriotism and honor
were offering their lives in the service of their countr}^, took i-ef uge in
Canada — shirking a grave public duty at a critical period of national
peril — and remained there till the close of the war, when, in the pros-
pect of returning peace, they addressed to the Executive applications
for pardon, advised, invariably, that such applications l^e denied.
XVII, 208, August, 1865; XX^ 44, October, 1865.
1878. A party who has been pardoned by the President for a politi-
cal offence, or has taken adA'antage of a proclamation of amnesty (such
as that of May 29, 1865, or Dec. 25, 1868), is not thereby relieved
from amenability to trial and punishment for a crime, not of a politi-
cal character, connnitted by him, or from the legal consecpiences of the
commission of such a crime. XXVIII, 394, February, 1869; XXIX,
35, June, 1869.
1879. A pardon is not retroactive. It cannot remit an executed
punishment or restore an executiul forfeiture resulting either by opera-
tion of law or sentence. It caiuiot therefore restore the forfeitures
incident upon desertion. Further it cannot modify past history, or
PARDON. 527
reverse or alter the facts of a completed record. From and after the
taking effect of a pardon, the recipient is innocent in law as to any sub-
sequent contingencies, but the pardon does not annihilate the fact that
he was guilty of the offence. The pardon indeed proceeds upon the
theory that the party was guilty in fact. The asking for it is an admis-
sion of guilt, and the granting of it is a recognition of the fact of guilt. ^
Thus //f/f/that the President could not, by a pardon, remove the charge
of desertion from the record of a former soldier, who had long since
become a civilian by reason of the muster-out and non-existence of the
volunteer ami}- to which he had belonged in the war of the rebellion;
and that the effect of his pardon would not be to give him an honora-
ble discharge. A pardon would not only not remove a charge of deser-
tion, but would in fact confirm it, and constitute an additional reason
for retaining it on the record. And a party cannot, by an executive
act, be discharged from the service unless he is in the service. L, 395,
June, 1886; 42, 406, August, 1890; 43, 36, September, 1890; 48, 232,
July, 1891; Cards 3125, April, 1897; 3794, 3810, January, 1898.
1880. Where it was proposed to authorize and direct the Secretary
of War, by act of Congress, "to revoke and set aside the proceedings
had by a court-martial * * ^- during the month of November,
1865, and to remit the sentence promulgated thereunder by order of
April 13, 1866," Jteld that it was bej^ond the constitutional power of
Congress to thus invest the Secretary of War with the pardoning
power and to extend it to a sentence long since carried into execution.
The pardoning power of the President can neither be added to nor
detracted from by legislation, and it has been repeatedly held with
reference to this power that it cannot reach an executed sentence. It
must be therefore beyond the authority of Congress to vest in a sub-
ordinate official a power to pardon, which the constitutional pardoning
power cannot exercise. Congress cannot in this or an}^ other way
undo the executed judgment of a court martial. 51, 357, January,
1892.
1881. A pardon ])y the President will reach and remove a continuing
disqualification or disability incident upon the commission of an offence
against the United States, or upon a conviction by a United States
court or a court martial, but a disqualification incident under the laws
of a State, to a conviction of an offence (no reference being made in
said laws to convictions b}^ courts martial) would not apply to a con-
viction of that offence b}- a court martial of the United States. LVI,
628, Septetiiher, 1888.
1882. Held that a withdrawal })\ a department conunander of a
'See Ex parte Garland, 4 Wallace 333; Knote v. U. S., 95 IT. S., 153; In. re Spenser,
5 Sawyer, 195 (Federal Cases, No. 13,23-4). See §§ 1272 and 1273, ante.
528 PATENT.
pending charge against a soldier, upon his giving a pledge to abstain
in the future from the conduct which was the subject of the charge,
did not operate as a pardon and could not be pleaded as such. Had it
been done by an order of the President, it could have had no further
operation than as a quasi conditional pardon, leaving the charge legally
renewable upon a repetition of the otfence, 35, 423, October^ 1889.
1883. The reappointment to the armj^ of a dismissed officer does not
operate as a condonation. The dismissal remains a dishonorable
separation from the service. Card 2893, January., 1897.
PATENT.
1884. The presumption in favor of the validity of a patent, arising
from the action of the authorities in granting it, can be overcome only
by reliable and certain proof. ^ The grant of letters patent is prima
fade evidence that the patentee was the first inventor of the device
described in the letters, and of its novelty.^ So, hdd that a claim by a
patentee for a reasonable royalty for the use of his patent by the
United States was not impugned by the affidavits of a third party to
the effect that he was the real inventor, when such party had taken no
action to contest the issuance of the patent nor resorted to the courts
for his legal remedies. 53, 416, May., 1892. The use of a patent with
the knowledge and consent of the patentee is an implied promise or
agreement to pay for the same.^ Card 725, Decemher., 189 If..
1885. An existing royalty on a patented article is in the nature of a
legal lien upon it, to be paid off' before it can be safely used, and is
also an element properly entering into the price to be paid for it, if
purchased. The article is in law sold subject to this claim. So, held
that the United States, in purchasing a patented article, as being
necessary to the due prosecution of a certain work provided to be done
by an appropriation act should justly pay a price estimated by the
intrinsic value of the article, augmented b}^ the probable amount of
the ro^'alties likely to accrue as income. 44, 358, Deceinl>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, 21<n'ch, 1899.
1913. Sec. 1305, Rev. Sts., provides for the deposit by an enlisted
man of his savings with a paymaster, to be paid over to him upon dis-
charge. Held that this statute provided for voluntar}" deposits only;
and that an officer, however laudable his motive, was not legally author-
ized in thus depositing, against the will of a soldier, certain mone}' in
his hands belonging to the latter. XXXIX, 471, March., 1878. Nor
can a court martial legally sentence a soldier to "deposit" any part
of his pay. 32, 252, 283, J/^/y, 1889; 34, 22, 124, July, 1889.
1914. A soldier in confinement awaiting the result of his trial b}'
court martial was, contrary to par. 945, A. R. (1046 of 1901), paid one
month's pay, which, in compliance with instructions, he delivered to
the officer of the day, who turned it over to the adjutant of the post.
The latter delivered it to a paj'master with the statement that at the
time of payment the prisoner was "awaiting result of trial." The pay-
PAY AND ALLOWANCES. 537
master deposited it to the credit of the Treasurer of the United States.
Held that upon pa^'ment to the soldier the title to the money vested in
him, and advhed therefore, that his application for reimbursement be
referred to the Auditor for the War Department. Card 3258, June^
1897.
1915. Held that an officer on the active list,^ detailed as a professor
in a college under Sec. 1225, Rev. Sts., though detailed at his own
request, was entitled to the usual allowances of officers on dut}', vis,
the allowance for commutation of quarters made payable b}^ sec. 9 of
the act of June 18, 1878, c. 263, "at places where there are no public
quarters," and the right to purchase fuel on the terms accorded by
sec. 8 of the same act.' XXVII, 662, May, 1869; XXXIV, 365,
July, 1873; XXXIX, 175, March, 1878.
1916. Held that, while engineer officers engaged upon civil works
were*entitled, like other officers on duty, to the allowances authorized
by sees. 8 and 9 of the act of elune 18, 1878, no part of the appro-
priations special!}^ made for such works by Congress could, in the
absence of express statutory authority for the pui-pose, be devoted to
the purchase of fuel for such officers or to the payment to them of the
commutation allowance for quarters. XLI, 316, Jidy, 1878.
1917. Sec. 8 of the act of June 18, 1878, authorizes the furnishing
of fuel to officers at a certain rate "according to the regulations now
in existence."^ i/(?Mthatan officer, while absent on sick leave, was
not entitled to the benefit of this provision.* XLI, 382, Se2)te7nher,
1878.
1918. The act of June 18, 1878, c. 263, s. 8, provides that '^fuel
may be furnished to the officers of the arm}' by the Quartermasters
Department for the actual use of such officers only." &e. Held, that
it would not be in contravention of this statute to furnish to the fami-
lies of officers, temporarih^ absent by authority, though not on formal
leave, from their stations, the allowance of fuel to which the}' were
entitled (/. e. the fuel which they were allowed to purchase at a
^ See 16 Opins. At. Gen., 92, to the effect that retired officers are not entitled to the
right to purchase fuel under the act of June 18, 1878.
2 Compare Long r. United States, 8 Ct. Cls., 398.
It has been held by the Attorney General (16 Opins., 611) that the term of descrip-
tion in sec. 9 of the act of June 18, 1878, — "at places where there are no public quar-
ters," included places where the public quarters were insufficient for all the officers
of the command; and that officers, stationed at such places, to whom, on account of
the insufficiency of the existing accommodations, no quarters could be furnished,
would be entitled to the commutation allowance.
■^It has been held l)y the Attorney General (16 Opins., 92) that the words in this
section — "at the rate' of three dollars per cord for standard oak wood, or at an
equivalent rate for other kinds of fuel, according to the regulations now in existence,"
were to be construed as only authorizing the Quartermaster Department to furnish
the quantity of oilwr fuel fur three dollars which, by the regulations, is made the
equivalent of a cord of standard oak wood.
*See A. R., 998 of 1895 (1101 of 1901) .
538 FAY AND ALLOWANCES.
reduced rate under the act); — articles of necessity furnished for the
use of an officer's family under the circumstances being in contempla-
tion of law furnished for the use of the officer himself. XXXIX,
638, Angmt, 1878.
1919. Ildd that the right of an honorably discharged soldier to the
"travel pay," or allowance for transportation and subsistence, while
proceeding from the place of his discharge to the place of his enlist-
ment, as accorded by Sec. 1290, Rev. Sts., was not divested by a sen-
tence of court martial imposed upon him before discharge by which
were forfeited, with pay, his "allowances due and to become due" ;
this term referring to his regular allowances as a soldier, and not
including the allowance in question which is made to the soldier after
he has become a civilian. XXXVIII, 172, July, 1876.
1920. Sec. 2 of the act approved March 2, 1899, provides that "each
regiment of cavalry shall consist of * * * two veterinarians * * *
Provided., * * * Of the veterinarians provided for in this act, one
shall have the pay and allowances of a second lieutenant of cavalry and
one shall have the pay of seventy-five dollars per month and the allow-
ances of a sergeant major." Veterinarians under this act are appointed
by the Secretary of War, and their allowances are fixed by the statute
(save as to money allowances of clothing for junior veterinary surgeons
as provided in Army Appropriation Act approved May 26, 1900).
AVhile traveling under proper orders veterinarians of the second class
should be furnished with transportation requests and given commuta-
tion of rations, being governed by the same rules as in case of a
sergeant-major. A veterinarian of the first class traveling under
proper orders without troops should receive mileage the same as a
second lieutenant.' Card 8587, Jidy, 1900. The language of the act
quoted should be construed as placing the veterinarian of the first class
on the same footing with the second lieutenant of cavalry as to pay
and allowances of every kind. Held therefore that he was entitled
to the change of station allowance of a second lieutenant of cavalry.
Card 7111, October, 1899.
1921. During the war with Spain an enlisted man of the regular
army was given a commission as an officer of United States volun-
teers and at the same time a furlough as enlisted man "to last dur-
ing the war." While serving as such officer his term of enlistment
expired and he was discharged accordingly, but remained in the serv-
ice as an officer of volunteers. TMd that his case did not differ from
that of a soldier discharged to accept a commission; that he was there-
fore not entitled to travel allowances on his final statements; but that
' Concurred in by the Comptroller under date of July 21, 1900.
PAY AND ALLOWANCES. 539
when discharged as an officer he would be entitled to travel pay as
such. Card 5953, Mirch, 1899.
1922. The Treasury Department will not pay the claims of creditors
of a soldier out of mone^^ due him at the date of his death. The way
for them to obtain payment is to have letters of administration taken
out and prove their claims liefore the administrator, to whom the
Government would pay the amount due the estate.^ Card 2779,
December^ 1896.
II — Pay of Officers.
1923. Sec. 1268, Rev. Sts., requires that officers shall be paid
monthl}^, and Sec. 3648, Rev. Sts., in effect forbids their being- paid in
advance. Their right, however, to assign their monthlj^ pay, when
duly accrued, has long been admitted.^ The prohibition, by Army
Regulations, of the transfer of pay accounts before they are due implies
the right to transfer them when or after due. LV, 251, December^
1887. The pay of an officer authorized to receive it can be paid, by
a paymaster, only to the officer himself or his proper assignee. Where
two or more persons produce assignments of an officer's pay, or of a
portion or portions of the same, the paymaster should refuse to pay
at all. The Government cannot undertake to decide such controver-
sies. 21, 281, December, 1887.
1924. Par. 1442, A. R.(1889), prescribes in effect that "troops at posts
and in the field" shall be paid personally and in cash. This, however,
is directory merely. If the Pay Department is unable at any time to
effect such a payment, and the troops at a post are willing to accept
checks sent by mail, a payment made in this manner will be legal, and
no liability will be incurred b}' the paymaster except that of properly
making out the checks and duly depositing them in the mail properly
addressed. 48, 8, June, 1891.
1925. The additional pay, payable under Sec. 1261, Rev. Sts., to
aids-de-camp and infantry officers on mounted duty, is a part of their
regulai' pay as such — as much a part of their legal compensation as
the pay attached to their grade. It therefore needs no special appro-
priation to authorize its payment, but it is payable under the general
clause of the army appropriation — ""for pay of officers of the line,"
&c. 54, 468, Augmt, 1892; 59, 228, May, 1893.
1926. Held that an infantry officer, detailed under the act of August
5, 1892, "for special duty in connection with the World's Colum-
bian Exposition," was not entitled to receive mounted paj^; the act
expresslj^ providing that no officer or employee of the United States
1 See 2 Comp. Dec, 226. ^5 Opins. At. Gen., 271.
540 PAY AND ALLOWANCES.
should receive any "additional pay or compensation because of serv-
ice connected with said exposition." 65, 495, Oetoher, 1892.
1927. The "advances'' which may be authorized by the President
to "persons in the military and naval service" under Sec. 3648, Rev.
Sts., when made to officers, are not payments to them in advance but
are merely transfers to them of the funds with which to paj^ their
monthh" pay as it falls due.^ Where, therefore, an officer, to whom
an advancement covering- several months had l)een duly ordered, trans-
ferred his pay accounts for those months prior to his departure to a
distant station to another officer, advised that the order be so changed
as to have the advancement made to the latter officer. Having the
pay accounts in his possession already executed, he could pay them as
the}^ fell due and thus account as a disbursing officer for the whole
amount. Card 3730, Dtcehd>e>\ 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)riate<l sliall l)e paid for conunutation of fuel, and for quarters to otlicers and
enlisted men." This j)r(>vision 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.<tdiction, should also itroi)eily be specially presented when the accused is first
called upon to plead: valid objections of this ntdtmJ character, however, are not
waived if the accused, instead of submitting a special plea, pleads over to the merits,
since consent cannot confer jurisdiction on a court martial where none exists in law.
See § 1031, ante, and note.
556 POST COMMANDER.
April, 186 Jf. So licld that the fact that the charge was preferred
throug-h personal hostility to the accused was not matter for plea, ])nt,
if desired to be taken advantage of, should be ofi'ered in evidence.
XXXTV, 554, Octoher, 1873.
1997. A plea of a restoration to dutv bv competent authority with-
out trial, under the Army Regulations, is in the nature of a plea of a
constructive pardon, and a good special plea in bar of trial. But going
to trial on the general issue waives it.^ XLIX. 1'4. J\f<nj. 1885.
1998. An individual pardon must be pleaded; hut a court is ])0und
to take judicial notice, as affecting its jurisdiction, of a general pardon
or amnesty. Thus where a court martial failed to do so in the trial
of ii deserter who had returned to service under the terms of the
cinnesty proclamation of March 11, 1865. this fact appearing from the
specification to the charge of desertion upon which he was tried, it
was held that the court was without jurisdiction of the offence and that
the trial had was illegal. Card 1274, Apr!!, 1895.
1999. Where an accused declined to plead on the ground that he was
so much under the influence of liquor at the time of the acts charged
that he could not remember what occurred, held that the court prop-
erl}' directed a plea of "not guilty" to be entered. XLIX, 545,
Decern he?' , 1885 .
2000. The fact that a sergeant has been reduced to the ranks, con-
fined in arrest, and required to perform work under the custody of a
sentinel, though such a disposition may be in excess of authority, can-
not constitute a legal plea in bar to a trial upon the charge for which
he was arrested. Such treatment is apposite to the case only as enter-
ing into the consideration of the question of the quantum of punish-
ment upon conviction. XLVII, 242, July., 1883.
POST COMMANDER.
2001. A post commander cannot properl}' allow his post to become
an asylum for fugitives from civil justice. XXXVI, 450, May .^1875.
2002. Held that the commander of the prison post at Alcatraz Island
was authorized to make and enforce all necessary and proper regula-
tions for the safe keeping and government of the military prisoners
there confined; that he might, by the use of force, if needful, but
using no more force than was necessary", prevent civilians from land-
ing on the island in violation of the regulations, and put such persons
off' the island as had landed there contrar}^ to the same; that, in an
extreme case, as where a civilian engaged in aiding a prisoner to
^Compare Heard's Criminal Pleading, 296; U. S. r. Wilson, 7 Peters, 150.
POST EXCHANGE OR CANTEEN. 557
escape, and no other means of prevention would avail, he might prop-
erly order the party to be fired upon by the guard. XXXII, 525,
ApriL 1S72.
2003. Where a general court martial has been convened at a military
post ))y the department commander, the commander of the post is not
empowered, in the absence of authority from such superior, to refer
cases to the court for trial. Such action has sometimes been taken
and acquiesced in. but (unless specially authorized) it is irregular and
a transcending of his province ))v the post commander. XLI, 306,
Jultj. 187S.
2004. A Post commander can, in his discretion, exclude all persons
other than those belonging to his post from post and reservation
grounds, but should he admit everybody except one individual against
whom no charge of wrong doing existed, such action would be con-
sidered an abuse of discretion on the part of the post commander.
Card 2682, October, 1896.
POST EXCHANGE OR CANTEEN.
2005. The post exchange (or canteen) is (or was) in no sense a post
trader but an establishment created solely by military orders. Card
1490, July, 1895.
2006. The relation which exists between the post exchange and the
officer in charge, as to the custody of its funds, is not simply that of a
gratuitous bailment. In a case of such a bailment, the law only
requires slight diligence and makes responsible only for gross neglect.
But the liability here is more than this; the custody of the funds is an
official duty, devolving a material trust, and in the discharge of that
duty a greater degree of care is required. So, where the officer in
charge of a post exchange, in conveying the funds of the exchange
from the post to a bank in the town for deposit, placed them in a
package inside of the breast of his blouse which was without pockets,
and the package slipped down and was lost — held that the officer had
not used due care and should be charged with the amount lost. 54, 41,
Jum-, 1892.
2007. AVhere the officer in charge of a post exchange at a post
adjoining a city, having in his hands for deposit in bank an amount of
about one thousand dollars of post exchange funds, instead of person-
ally attending to the deposit, sent in to the bank, with the funds, the
post exchange steward, who appropriated to his own use a portion of
the amount and did not return to the post till arrested by the civil
authorities — held that the officer, not being a mere bailee without com-
pensation but an official charged with the custody of the funds in a
558 POST EXCHANGE OR CANTEEN.
public capacity, had not taken the degree of care properly required of
him, and was responsible for the amount lost. 64, 138, Jfarch^ ISOJf..
2008. A post exchange was entered and robbed of a sum of money,
consisting in part of that day's receipts and in part of a small and rea-
sonable sum left by the officer in charge with the exchange steward,
to make change. Under par. 337, A. R. (par. 4, G. O. 46, A. G. O.,
189.5), the officer in charge is not responsible for the dax'^s receipts
till turned over to him by the steward on the following morning.
Held, in the absence of any evidence of negligence or want of pre-
caution on his part, that the officer was not legally liable for the
amount of the loss. 58, 437, March, 1893.
2009. The post exchange is a part of the administrative machinery
of the army established by army regulations which have the force of
law. A fraud conmiitted l)}^ the steward of a post exchange in its
management is therefore clearl}^ a military oflence. Card 5255,
Noreinher ,1898.
2010. A post exchange is not a corporation but merely property
appertaining to the organizations constituting the garrison. It is a
co-operative store belonging to the persons or organizations which
have paid for their shares of it. Articles donated to the exchange are
donated to the owners, and such articles should be considered as part
of the assets of the exchange, to be turned over, or accounted for, by
its members to their successors. 65, 127, May, 189J^.
2011. Held (Januar}^, 1892), that the appropriation in the existing
army appropriation act, "for fuel and lights for enlisted men,"
included the fuel and lights required at a canteen, since thus used,
the}" are for '' enlisted men" almost if not quite as much as when used
in their places of messing and sleeping. But hdd otherwise as to the
sale, to or for a canteen, of articles for fuel or light, for cash. The
act authorizes such sale to ''officers" onh'. And though the official
in charge of a canteen is a commissioned officer, a sale to him of such
material would not be for his use but for that of the canteen and
therefore unauthorized. 51, 239. Jamiary, 1892.
2012. When the post exchange (then called canteen) was of a pri-
vate character it was held that stoppages of pay could not l)e made to
reimburse losses of canteen funds; and at that time the Treasury
Department also held that canteens were taxable by the Government.
Subsequently (in 1897) the Treasury Department held that post
exchanges as then organized under the orders of the War Depart-
ment were government instrumentalities or agencies and were there-
fore not taxable under the internal revenue laws. The funds of the
post exchange are moneys used in carrying on this pul)lic agency,
and the Government has a right to protect its instrumentalities, — the
POST EXCHANGE OR CANTEEN. 559
establishments through which it carries on public business. Held
therefore that stoppag-es against the pay of officers and enlisted men
may legalh" be made to reimburse the post exchange fund on account
of losses for which such officers and enlisted men are responsible.
Cards 3171, June, 1897; 7186, Octol)et\ 1899.
2013. The post exchange (formerh' canteen) was not established hj
Congress but is maintained under special regulations prepared by the
War Department.^ It is recognized as a government instrumentality,
and has been recognized by Congress, b}" reference to it, in acts of June
13, 1890 (20 Stats., 154), and of July 16, 1892 (27 Stats., 178). Card
5394, November, 1898.
2014. A post exchange is not legally liable for local or municipal
taxes or licenses, on the sale of commodities for the exclusive use of
persons in the militar}^ service; such exchange being as was recognized
by the Court of Claims (in Dugan r. United States) an instrumentality
of the Government of the United States.^ Card 7324, Noveriihei\ 1899.
^ See G. 0. 46, A. G. 0., 1895, as amended by Post Exchange Regulations of Febru-
ary 2, 1901, pursuant to sec. 38 of the army act of February 2, 1901.
■^In the case of Thomas B. Dugan r. The U. S. decided June 5, 1899 (34 Ct. Cls.,
458), the Court said: "Under Post Exchange Regulations adopted by the War
Department, and published l>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. <ien. Wilkinson, and Maj.
Gen. Gaines, tried in 181.S-1S1(), and including that of Bvt. IMaj. (ien. Twiggs, tried
in 1858. His authority in this particular has been in .substance affirmed by the Judi-
ciary Committee of the Senate, in Report No. 868, dated March 3, 1 879, 45th C^ong.
.3d .Session. A single men)ber of the (Jommittee apparently dissented, in a subse-
quent report of April 7, 1879, Mis. Doc. No. 21, 46th Cou'g., 1st Ses. See Swaim
V. U. S., 28 Ct. Cls. 173, and 165 U. S., 559.
PRESIDENT, 569
approving-, mitigate the punishment. But when final action has been
taken bv him in any of these cases, his function as reviewing or con-
firming authority is exhausted. Where indeed he has approved or
confirmed a punishment, and the same remains in any part unexecuted,
he may of course exercise the quite distinct power of pardon; but an
approval or disapproval once given by him, and duly notified to the
accused. — though his action may afterwards be discovered to have
worked an injustice. — is bevond his power to revise, reverse, or
modify. IX, 44, May, 186 Jf,) XXXVIII, 104, June, 1876; XLII, 91,
Decenih,',% 1878.
2041. So, where a legal sentence adjudged by a court martial has
once been duly executed^ the same is irreversible and cannot be
rescinded or modified by virtue of any executive authority of revision
or pardon vested in the President. However severe or unjust such a
sentence ma}" have been, or whatever irregularity (short of an abso-
lutely fatal defect) may haA^e characterized the proceedings, the case,
after the sentence, as approved, has been executed, is wholly beyond
cxecutiA-e control.' XXXYI, 2T4, 330, Fehruary and 2farch, 1875;
XXXVII, 243, 390, 420. January 2.^^ Marclu 1876; XXXIX, 242, 248,
October. 1877; 34, 334. August. 1889.
PEESIDENT— AUTHORITY TO RESTORE TO THE ARMY.
2042. While, as provided in Sec. 1228, Rev. Sts., an officer duly
dismissed from the army hy sentence of court raartial can be restored
to it only by a new appointment; so, except by a new appointment,
the President cannot restore an officer separated from the army other-
wise than by sentence, viz, by summary dismissal by order, or b}"
being " wholh'" retired, or by the acceptance of a resignation. Thus
separated, the officer is made a civilian as effectually as if he had been
dismissed b}' sentence; and. as to a readmission to the service, he is in
precisely the position of a civilian who has never been in the ami}' at
all. He can therefore be admitted to it only in the mode pointed out
in the Constitution (Art. II, sec. 2, par. 2). A relocation of the order
by which he was dismissed or wholh' retired, or of the acceptance of
his resignation, must (after notice) be quite futile and inefiectual.
An order purporting to revol'e a previous order by which an ofiicer
has been legally detached from the military service is a simple nullity.
XXXV, 466, July, 187 1^; XXXVII, 451, ll^r/vV, 1876; XXXIX, 474,
March, 1878; XLI, 611, July, 1879.
^Such a sentence is "no longer s^ubject to review bv the President." 15 Opins.
At. Gen. 290.
570 PRESIDINC; OFFICER OF THE COURT.
PRESIDING OFFICER OF THE COURT.
2043. No special rank or (lualitications are required for the position
of president of a military court. In onr practice the president is not
appointed as such; he is simply the senior in rank of the members
present, and he presides by virtue of his seniority alone. If the
senior of the officers detailed in the convening order is not present
with the court at the original organization, the next senior present
becomes president; so, if the officer who presided at the beginning of
a trial is at a subsequent stage of the proceedings relieved or com-
pelled to be absent by sickness, &c., the next ranking officer present
presides as a matter of course; and the senior officer present with the
court at the termination of the trial authenticates the proceedings as
president. XXX, 246, April, 1870; Card 5332, November, 1898.
2044. While a special authority' — that of swearing the judge-advo-
cate — is devolved upon the president of a military court ))y statute
(the 85th Article of AVar'), such officer has, in other respects, as in
performing the usual duties of a presiding officer, in authenticating
the proceedings with his signature, and in communicating with the
convening officer or other commander, no original authority but acts
simply as the representative and "organ" of the court.^ XXVIII,
BT8, .hint, 1SG9; XXX, 246, April, 1870.
2045. The president of a military court has no command as such. As
president he cannot give an order to any other member. As the organ
of the court he gives of course the directions necessary to the regular
and proper conduct of the proceedings; but a failure to comply with a
direction given by him, while it may constitute "conduct to the prej-
udice of good order and military discipline,'' cannot properh' be
charged as a " disobedience of a lawful command of a superior officer,"
in violation of Article 21. XXX, 246, 315, Ajyril and 2£ai/, 1870.
2046. For the president of a court martial to assume to adjourn the
court against the vote of the majority of the members, would be an
unauthorized act and a grave irregularity, properly subjecting him to
a charge under the 62d Article.' XXX, 248, April, 1870.
1 The further function devolved upon him by Art. 52 is not known to have ever
been exercised in our service: the article itself is a dead letter, as is also Art. 53 in
pari materia.
^See par. 1005, Army Regulations of 1889. The language of this regulation is taken
from the order of Secretary Crawford in his review of the case of Bvt. Lt. Col. Ikick-
enstos, in (t. O. 14, War Dept., 1850. It is now incorporated in the Couit-Martial
Maimal (UtOl), p. 22.
In deliberations on questions raised upon a trial, as well as in the finding and the
adjudging of the sentence, the i)residing mendier is on a perfect equality with the
other members. He has no casting vote, nor, if the vote is even, does his vote have
any greater or other weight oi- effect than that of anv other member.
» Case of Backenstos, Li. ( ). 14, War Dept. 1S50.
PREVIOUS CONVICTIONS. 571
PREVIOUS CONVICTIONS.
2047. IJdd that the reopening of the coiii-t, after a conviction, to
receive evidence of previous convictions, was not a violation of the
84th Article of War. The procedure is in accordance with the spirit
of the legislation which excludes judge-advocates from closed ses-
sions — to place prosecution and defence on a more equal footing, by
allowing the accused to 1)C present when evidence of previous convic-
tions is submitted and to scrutinize and test the legality of the same.
63, 49, Decemher, 1893; Card 3097, .-Ipr/Y, 1897.
2048. A court martial refused to take into consideration evidence of
previous convictions offered by the judge-advocate, on the grounds —
1st, that the accused had been previously" punished for each offence;
2d, that he had not introduced any testimony in support of his char-
acter, and, in the al)sence of such testimon}', the rules of evidence
preclude attacking the same. Held that such objections were not well
taken. ^ L, 647., August, 1886.
2049. A memorandum of the previous conviction is not sutficient : they
must 1)0 shown either 1)}^ the records of the trials or by duly authen-
ticated copies of the records or of the orders of promulgation. LIT,
508, S^eiUemher., 1887. It is unauthorized for the judge-advocate to
introduce, or the court to admit, as evidence of previous convictions
(or in connection with proper evidence of the same), the statement of
service, &c., required by par. 1015, A. R., to be furnished to the
convening authority wdth the charge." 39, 459, J/arch, 1890.
2050. While there is no legal objection to the consideration by courts
martial of evidence of previous convictions, not referred to them by
the convening authority, yet to secure a uniformity of practice in the
matter, recommended that general courts martial be directed to con-
sider only such evidence of previous convictions as is referred to them
by the convening authority.'' Card 3013, May., 1897.
2051. Previous convictions except of desertion on a trial for deser-
tion, not adjudged during the current pending enlistment of the soldier
but incurred during a prior enlistment, are not admissible. LVl. 305,
July., 1888; 61, 225, August. 1893. Nor is evidence of a previous con-
viction by Ji eiril court admissible in this procedure. 26, 380, Septem-
her, 1888.
2052. Evidence of a previous conviction is not admissible where the
findings and sentence were disapproved by the proper reviewing
^ A statute imposing heavier penalties on a person convicted of a felony, if twice
before convicted of a crime, is not unconstitutional, as putting twice in jeopardy.
^McDonald v. ]\Iass., 180 U. S., 311.
- See Circular 13, A. G. O., 1890.
^See this recommendation adopted and puVjlished in Circular 11, A. G. O., 1897.
572 PKISONER OF "WAR.
authority. LII, 121, 508, March uiid Septemher, 1887. As to all
trials (except those had by a suininary court where the post com-
mander acts as the court, and no approval of the sentence is required
by law), the term ''previous conviction" means a conviction to which
effect has been given by the approval of the sentence bv competent
authority.' 58, 210, 2fare]u 1893.
2053. The proper evidence of a previous conviction bv a summary
court is the summary court record relating thereto, or a cop}' of the
same, certilied to l)e a true copy by the post commander or adjutant.
64, 36, Fehruary, 1891^; 65, 170, June, 1891^. The certificate of the
company commander to the fact of such conviction, as shown by the
company records, will not be a legal substitute. 65, 170, supra.
When the proof produced is the copy furnished the compan}- or other
commander, it should be returned to him, and a copy attached to the
record of the court martial (except that of the summary court) before
which the trial is had.' Card 208, ASej)tentler, 1891^.
2054. Under the Executive order of March 30, 1898, previous con-
victions •'"whatever their number within the prescribed period," are
admissible to aid the court in determining upon the proper measure of
punishment, ■■ whether the limit of punishment is within or greater than
the ]3unishing power of an inferior court; 1)ut if greater, the pre-
scribed limit can only be increased on account of such convictions as
arc specified in subdivision -l, Article III, of the order (Manual, 1901,
p. 55.) The limits of punishment are, however, operative onl}^ "in
time of peace." (Act of Septem])er 27, 1900, Manual, 1901. p. .18.)
In time of war, therefore, courts martial are remitted to the discretion
conferred upon them ])y the Articles of War. Card 5781, February
1899.
PRISONER OF WAR.
I — Prisoners takkn from the Enemy.
2055. An engineer captured while doing duty on a steamer of the
enemy, held properly detained as a prisoner of war, civil employees
of the enemy serving with its army in the field being regarded as on
the same footing in this respect with the soldiers of such army. VI,
542, August, 1866,
iSeeCirc. 10, A. G. O. 1S93.
■■'The copies furnished the company or other commander are identical with those
furnished for use as evidence of previous convictions. ( See Court- INIar. Manual (1901 ) ,
p. 45. ) To distinguish the former from the latter and to thus insure tlieir return,
tlic fact that they belong to records of a company or other organization should, by
lilc mark or otherwise, l^e disclosed.
•'This ])rovision is repeated in the new Executive order of March 12, 1901, pre-
scrihing limits of ])unishment, published in G. O. 42, A. G. O., 1901. (See Court-
Mar. 31anual (1901), p. 55, par. 4.)
PRISONER OF WAR. 573
2056. Where certain persons, apprehended, while engaged appar-
ently as partisans in a raid from Kentucky into Indiana, were held to
trial by a civil court of the latter State for robbery, and the Confed-
erate agent for the exchange of prisoners of war made thereupon
official application that the^^ should be treated and exchanged as such
prisoners, on the ground that they were Confederate soldiers acting
under the orders of their military superiors — advised^ in view of the seri-
ous doubt as to their real status, that the}' be left to have their offence
passed upon by the court which had assumed jurisdiction of their case,
and by which the defence that their operations were legitimate acts of
war could be properh' investigated.^ II, 591, June., 186S; Y, 344,
Noveinh€t\ 1863.
2057. Where a prisoner of war, held with other prisoners at a prison
camp within a State in which the civil courts were in operation, killed
one of his fellow prisoners, advised that the Government might in its
discretion turn him over for trial to the State authorities, or exchange
him under the cartel and leave him to be tried by the Confederate
authorities. XIII, 498, March, 1865.
2068. The violation of his parole by a paroled prisoner of war is an
offence against the common law of war and punishable with death. ^
VI, 20, January, I86J4,.
2059. Where certain soldiers of the enemy's army, having f)een
taken prisoners in Virginia upon Lee's surrender, were released on
parole, on condition of their returning to their homes, held that this
parole did not authorize them, in the absence of special authority from
the U. S. Government, to come within our lines and into the State of
Maryland, although that State had been their place of residence before
the war; and that, in actually coming into Maryland, they were
chargeable with a violation of their parole.^ And held, further, that
a citizen of Mar\dand, in harboring and relieving them after coming
into that State, was chargeable with an offence under Art. 45. XII,
400, May, 1865.
II — Prisoners taken by the Enemy.
2060. I hid, in the absence of any stipulation to the contrary in the
cartel of exchange,* that a prisoner of war of our arm}-, released on
parole b}' the enemy, might legally be put on dut}' as one of the post
'See 11 Opins. At. Gen. 240.
■'See G. 0. 100, War Dept., 186.3, par. 124 (Lieber's Instructions).
■"* In 11 Opins. 207, Atty. Gen. Speed says ot these paroled prisoners that they "can-
not be regarded as havin^; homes in the loyal States. * * * As ])elligerentH their
homes were, of necessity, in the territory belligerent to the Government of the United
States."
*See 10 Ojiins. At. (ien. .So7.
574 PEISONER OF WAR.
guard at a post not in the field or threatened T)v the enemy. ^ XXI,
592, August, ISGG.
2061. A prisoner of war, on being paroled, is not necessarily bound
to return to the regiment or other command to which he was attached
upon capture, or subject, if he does not return, to ])e treated as a
deserter. In the absence of any special order given him by competent
authority, he is required only to abide by the existing orders in regard
to paroled prisoners in general. XXXIX, 339 Decernhei', 1877.
2062. Where an officer of our army, while on trial or awaiting sen-
tence, is taken prisoner by the enemy, and a sentence of dismissal
adjudged l)y the court and duly approved is not officially communi-
cated to him till, upon being exchanged, he has returned to his regi-
ment, he is entitled to be treated and paid as having been in the U. S.
service up to the date of such notification. And so of an officer dis-
missed by order, or a soldier dishonorably discharged by sentence
under similar circumstances.^ XII, 230, January, 1865; XIII, 589,
Ajn-;!, 1865; Card 2039, February, 1896.
2063. Officers and soldiers of our arm}' taken prisoner b}^ the enemy
and released on parole, are (in the absence of any statutorA' provision
to the contrary) to be regarded, while occupying this status, preciseh'
as officers and soldiers on ordinary active dut}'; so far as concerns
their right to pay. ^ I, 385, Octoher, 1862.
2064. A paroled prisoner is simply a soldier who has been placed
under a disability to engage in active operations against the enemy.
He remains a part of the army and as much subject to military control
as he was before his capture. If he absents himself without authority
from the post or station to which as a paroled prisoner he has been
assigned by the militar}' authorities, he is absent without leave or in
desertion according to the intent with which he absented himself.
Card 1746, Se2)teiither, 1895.
2065. While it is laid down by the authorities* that a prisoner of
war is, strictly, justified in enlisting in the service of the enemy only
by a well founded apprehension of immediate death, yet where soldiers
of the Federal army, while subjected, when prisoners in the hands of
the enemy, to extreme privation and suffering b}^ which their lives
^See G. O. (A. & I. G. O.) of Feb. 14, 1814; do. 100, War Dept. 1863, par. 130
(Lieber's Instructions).
^Note the provision of the act of 1814, now incorporated in Sec. 1288, Rev. Sts.,
entithng certain otiicers and soldiers to be paid as such during their captivity when
made prisoners of war by tlie enemy. And see Jones v. United States, 4 Ct. Cls. 197;
Phelps v. United States, id. 209 — adjudicated cases of officers dismissed while prison-
ers of war and claiming jiay under the statute.
^ As to the status of jirisoners of war, whose (volunteer) regiments were mustered
out in their aVjsence, see CJ. O. 108 of ISfv).
' Respublica v. McCarty, 2 Dallas, S(i; Uniteil States r. Vigol, id. o4i). And com-
pare United States •. Griiier, 4 Philad. ;}9(>, 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?><r>. ^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<J5, Rev. Sts.. since
they have no military rank or grade. 56, 151. Octoher, 1892.
PROMOTION.
2067. Par. 19, Army Regulations (1863). prescribed that promotions
in i'stut)lished regiments and corps to the grade of colonel should be
made according to seniority, except in case of disabilit3\ Thus a
senior first lieutenant, upon a vacancy occurring in the grade of cap-
tain in his regiment, is entitled (if not disabled or incompetent) to be
promoted thereto. But where, in ca.se of such a vacancy, a civilian (a
dismissed officer) was nominated (illegally. /. r.. without authority of
57(> 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, 2i<u'ch, 1879.
2088. Nor, Avithout authority from Congress, can an ext^cutive
depai-tment or officer convey away any u.^rifrHctuary interest in land
of the United States. Thus it has lu'en repeatedly held by the .Fudge-
Atl\c)cate (Jeneral that the Secretary of War (or a military com-
mander) was not empowered, of his own authority, to grant a right
of way over a military reservation to a railroad company or other
corporation.- XXXI,'237, Jfareh, 1871; XXXIV. 107, 170, Man-h
and S,j>t,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,
Q<d'$<, Sej)teinher, 1875. So Jteld that neither the Secretary of War nor
a department commander could grant to an individual or individuals
the exclusive right to use for an indefinite period certain water power
belonging to the United States (XLI, 136, Felwaary, 1878); nor the
exclusive right to mine the soil of a military reservation for a certain
term of years (XLI, 37, JVovemher, 1877); nor a similar right to make
and maintain for an indefinite period ditches through a portion of such
a reservation for the purpose of irrigating the lands of private parties
(XXXVIII, 232, August, 1876); nor the right annually to enter upon
and occupy a militar}^ reservation and cut and possess the hay crop
growing thereon" (XLII, 128, January, 1879); nor the right perma-
nently or indefinitel}' to occupy and use a portion of a reservation for
a burying ground. XXXIX, 337, Decemher, 1877.
2089. JIdd, however, that a distinction was to be observed between
a grant of a usufructuary interest in land and a revocable license, not
involving a transfer of such an interest.^ XXXIII, 657, January,
1873; XXXIV, 196, Jfarch, 1873; XLIII, 278, Ajjril, 1880. Thus
held that the Secretary of War would be authorized to permit a tele-
graph company to erect posts upon a military reservation and attach
to the same telegraph wires, subject to their being removed at the will
of the Government if found to interfere with the purposes for which
the reservation was established. XXXVIII, 591, May, 1877. So
held that a municipal corporation might legally be permitted l^y the
Secretary of War to lay water pipes in the soil of the arsenal grounds
at Springfield, Mass. , the same being equally for the benefit of the
military authorities and the citizens, and subject to removal at the
^ See confirmatory opinion of the Attorney General in 160pins., 205. In this case
there was the further objection that the State of New Jersey, in ceding to the United
States jurisdiction over the premises, by deed of March 10, 1846, had expressly
declared that the grant was "for military purposes;" adding, "and the said United
States .shall retain such jurisdiction so long as the said tract shall be applied to the
military or public purposes of the said United States, and no longer."
'^A fortiori in regard to growing timber. See Spencer v. United States, 10 Ct.
Cls., 255.
•' See this distinction recognized in opinions of the Attorney General of October 1
and November 22, 1878 (16 Opins. 152, 205), in the former of which it was held
that the Secretary of the Navy was not empowered to authorize the City of Chelsea,
Mass. , to continue one of its main sewers through the grounds of the U. S. Naval
Hospital.
584 PUBLIC PROPERTY.
will of the Government. XXXVI, 653, August, 1875. And held that
a po!?t trader niioht leg-ally be licensed by the Secretary of War to
erect the buildinos necessar}- for his business upon the land of the
post for which he was appointed.^ XXXIII, 453, October^ 1872;
XXXV, 78, 1)ece)ul>er, 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 <if autluirity from Congress.
In t-er+ain emergencies, however, the use of property of the I'nited States to relieve
suffering auKMig persons not entitleil to such aid has been authorized by the Presi-
dent, and similarly the Army Regulations contain provisions with reference to the
care of certain sick persons not entitled io such care; but there is no authority of law
for this. It can only be said to rest on the necessitij of furnishing relii-f in such ca.ses.
See note to § -oOO, post.
PUBLIC PROPERTY. 585
Cards 148, August, 1S9J^; 1299, 3fay, 1895; 3555, 3679, Octoher and
Novemher^ 1897; 5008, SepteDiber^ 1898. So held that the Secretary
of War would not be authorized, in the absence of enabling legisla-
tion, to sell or negotiate the bonds or promissor}' notes made to the
United States by certain railroad companies, in consideration of roll-
ing stock, &c., sold and transferred to the same. XXX, 605,
August, 1870. And held that the fact that certain valuable public
property- was perishable and liable to waste was not legally sufficient
to justify the sale in the absence of statutory authorit}'. XXVIII,
479, A^jril., 1869. Held that the "Cavalry Tactics," a work prepared
under the orders of the Secretary of War by a board of officers, was
the property of the United States, and therefore could not, without
the authority of Congress, be disposed of to a bookseller with a view
to its publication and sale by him on his private account. XXXV,
264, March .^ 187 1^-. And held that the telegraph lines of Porto Rico,
which by the Treaty of Paris, became the property of the United
States, could not be alienated except by authority of Congress. Card
8097, April, 1900.
2091. Under par. 616, A. R. (698 of 1901), "transfers of public
property from one bureau or department to another is not regarded
as a sale.'"^ Paragraph 671 (753 of 1901) requires for such transfer
"special authority of the Secretarj^ of War" and provides that "when
between a bureau of the AVar Department and an}' other executive
department the amount to be paid will include the contract or invoice
price, and cost of transportation." The amount thus determined should
be transferred as indicated on page 602, volume 3, Decisions of the
Comptroller of the Treasury. Held that a transfer of certain clothing
from the Quartermaster's Department to the Department of Justice for
the use of prisoners in the U. S. Penitentiarv at Fort Leavenworth,
could legally be made under the provisions of the regulations cited;
the latter department having an appropriation made by Congress for
the purchase of clothing for the prisoners named. Card 7184, Octoher,
1899. Similarly held with respect to a proposed transfer of five mules
purchased from the appropriation for river and harbor improvements,
to the Quartermaster Department of the armv. Card 3679, January,
1898.
2092. The provision of the Constitution in regard to the disposition
of public property applies to exchanges as well as to other dispositions
thereof. The exchange of public property for other property not
belonging to the United States cannot therefore be made, except by
the authority of Congress. Cards 613, Nommler, 189^; 1223, Ajyril,
1895; 2127,"^2183, 2rarch and April, 1896; 3414, August, 1897.
I See 17 Opin. At. Gen. 480.
586 PUBLIO PROPERTY.
2093. The exchange of a lighthouse reservation for a militar}^ reser-
vation by the Treasury and War Departments, would not be legal without
the authority of Congress, but advised that it would be in accordance
with precedent for each department to give to the other a license to
occupy the lands of that department pending* action by Congress.
Cards 3657, N^ovemher, 1897; 87i3, August, 1900.
2094. The term "surplus documents," as used in section 95 of the
public printing- and binding act of January 12, 1895, has reference to
public documents printed by the United States, and does not refer to law
books purchased by and become the property of the United States.
These latter cannot be exchanged under the section referred to. Card
2183, April, 1896.
2095. Requests for the loan of tents, flags and other public property
under the control of the War Department have as a rule been denied
on the ground that the Secretary of War had no authority to loan
public property under his control unless authorized to do so by reso-
lution or act of Congress.^ While there have been instances in which
dredges and other public property used for the improvement of navi-
gation have been loaned under authority of the War Department, the
practice has been, with few exceptions, in accordance with the view
that, in the absence of authority from Congress, the Secretary of War
cannot legally loan personal property of the Government. Card 1561,
Jidij, 1895; 2265, Matj., 1896. Held, therefore, that in the absence of
Congressional authority government ambulances could not be loaned
to the national guard of a State for use on a practice march. Card
1561, sujjra. But ]ield that it was within the discretion and power of
the Secretar}^ of War to temporarily furnish transportation and an
escort for j^ United States judge, on his request, while traveling from
place to place for the purpose of holding court in the Indian Territory.
Such use would not be a loan. Card 228, August, 1891^..
2096. Under the provisions of the act of March 3, 1879 (20 Stats.,
112), the Secretary of War is, upon the request of the head of any
department, authorized and directed to issue arms and ammunition
whenever they may be required for the protection of public money
and property, to any officer of the department designated b}^ the head
thereof, to be returned when the necessity for their use has passed.
Held that under this statute the Secretary of War could furnish arms
and annruinition, upon the request of the Secretary of the Interior, to
an Indian agent for use of his police to meet any threatened armed
opposition that might arise in the attempt of the agent to evict tres-
passers from the reservation under his charge. Card 1119, June, 1895.
'*Such action, for example, was taken by the War Department, Jan. 16, 1881, on a
request for the loan of tents for a camp meeting, and again on June 24, 1895, on a
request for the loan of flags to be used at an encampment.
PUBLIC PROPERTY. 587
2097. Held that the principle that buildings erected on the land
of another without his consent become his property, did not apply to
buildings erected b}^ the United States on land occupied jure helll by
the army in an enemy's country; but that, on subsequenth^ surrender-
ing the land to the owner, the military authorities might legally
remove and retain or dispose of the buildings. XXXV, 565, Septem-
hei% 1875.
2098. Temporary buildings erected by military orders on land of the
United States at a military post, to serve only a temporary purpose,
are in general personal property of the United States which may be
removed by the direction or authority of the Secretary of War.^ But
if the same be permanent structures and real estate, the authority of
Congress is necessary to their removal. 58, 162, Fehruary, 1893.
2099. The United States, being tenant of land leased for military pur-
poses at Fort Davis, Texas, erected buildings thereon for the purposes
of a military post. In view of the fact that the relation was that of
landlord and tenant; that the buildings were erected for a purpose
analogous to that of trade, and for a public use; and that in their erec-
tion there coidd certainly have been no intention to benefit the inherit-
ance or add to the freehold — Jield that such buildings were to be
regarded not as fixtures but as personal property," and removable by
the tenant at any time before the expiration of his lease. '' Should the
Government sell the buildings standing, the purchaser would have
the same right of disposition as the United States and no more. He
would therefore be obliged to remove them before the termination of
the lease, unless otherwise permitted by the owner of the premises. 47,
71, May, 1891. And held similarly of like buildings erected at Fort
Union, New Mexico, where the United States was tenant at will; the
buildings not being intended as improvements, but merely for the use
of the troops. 47, 138, May, 1891.
2100. Where a post commander, without authority, took possession
of land of the United States for the purpose of erecting thereon a
building for his personal use, and having erected it assumed to hold
and dispose of it as his own property, held that his act was unauthor-
ized and illegal, and that he acquired no legal estate in the building.
And similarly held where, without authority, he permitted an enlisted
^ But such buildings cannot be sold without the authority of Congress. Lear v.
V. S., 50 Fed. Kep,, 65.
^Yan Ness v. Pacard, 2 Peters, 141; King v. Wilcomb, 7 Barb. 263; Hutchins r.
Masterson, 46 Texas, 555; Moodv v. Aiken, 50 Texas, 65; Conrad v. Saginaw Mining
Co., 54 Mich. 249; Meigs' Appeal, 62 Pa. St. 28.
^'-^uniner r. Tileston, 4 Pick. 307; Griffin ;-. Ransdell, 71 Ind. 441; 18 Opins. At.
Gen. 270; Taylor's Landlord and Tenant, 433. But such buildings could not be
sold without the authority of Congress. 20 Opins. At. Gen. 284.
588 PUBLIC PROPERTY.
man of his command to use land of the United States for the erection
thereon of a dwelling- and to hold and dispose of such dwelling as his
own property. 63, 04, Dectnnher^ 1893.
2101. Wood growing on a military reservation is the property of the
United States. So, JitJd that a contractor who cut such wood to fill a
contract made by him with the IJ^nited States to furnish wood to a
military post, could not legally be allowed to remove or dispose of the
same as his own property. 48, 218, July., 1891.
2102. Ifchl that the provision of Sec. 3618, Rev. Sts., — requiring
that '"all proceeds of sales of old material, condemned stores, supplies,
or other public property of any kind," shall, with certain exceptions
specified, bo deposited and covered into the Treasury as miscellaneous
receipts, and not withdrawn except b}" the authority of a statutory
appropriation, — applied to the proceeds of the surplus cuttings of
material for clothing manufactured h\ the Quartermaster Department
of the army, the same not being within any of the designated excep-
tions; and therefore that the proceeds of such cuttings could not
legally be retained and used in the business of that depai'tment.
XLII, 653, May, 1880.
2103. Unserviceable public property can only be disposed of by sale
according to the provisions of Sees. 12-11, 3618, Rev. Sts. It cannot
be exchanged for other property not belonging to the United States.
Thus held that an old and useless printing press, the property of the
United States, could not l)e disposed of b}' exchanging it for certain
new property belonging to a regiment. 62, 124, October'., 1893.
2104. JIdd that, in the a1)sence of specific authority from Congress,
the Secretary of War woidd not l^e empowered to sell to a State, for
the use of its militia, an amount of clothing in excess of the State's
quota as already appropriated. 42, 371, August., 1890. And /teld,
that, without such authority, he would not be empowered to exchange
government property for property owned or possessed by a State:
thus, that he could not legalh" deliver to the State of Pennsylvania
certain arms, the propert}' of the United States, in exchange for
arms formerly issued to the State for the use of its militia, and in
which the State had a (jualitied property. 41, 497, July, 1890.
2105. In the absence of statutor}' authority, land cannot be pur-
chased yor the United States with any more legality than land of the
United States can be sold or disposed of. B}^ a provision of an act
of May 1, 1820, now contained in Sec. 3736, Rev. Sts., it is declared
that "no land shall be purchased on account of the United States
except under a law authorizing such purchase." Held that the term
"purchase" was to be understood in its legal sense, as embracing any
PUBLIC PROPERTY. 589
mode of acquiring property other than by descent; ^ and that therefore
the Secretary of War would not l)e empowered to accept a gift of
hind or interest in land, for any use or purpose independently of
statutory authority.^ XXXII, 19, September, 1871; XXXVIII, 175,
July, 1876; XXXIX, 313, JVovemher, 1877; XLIV, 9, June, 1880;
Card 3896, Fehruary, 1898. And similarly held as to the construction
tion of the same word (''purchase") as employed in Sec. 355, Rev. Sts.,
and advised thtit an appropriation of public mone}^ could not legally be
expended for the erection of a public building upon land donated to
the United States, until the Attorney General had approved the title,
and the legislature of the State in which the land was situated had
given its consent to the grant.' XXXII, 19, supra; XXXIX, 313,
supra; XLII, 152, JDecemher, 1879.
2106. In view of the prohibition of Sec. 3736, Rev! Sts., that "no
land shall be purchased on account of the United States, except under
a law authorizing the same," the Secretary of War cannot accept a
grant by y!ft of land or of an easement in land, without authority
of special statute.* XLV, 359, June, 1882; 40, 147, 3fay, 1890; 43, 70,
Sep>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 Ian<l, may be implied fmm an appropriation
act granting a sum of money for a pul)lic work requiring for its construction the
occupation and use of certain land of an individual or corporation, see opinions of
the Attorney General in 15 Opins. 212; 16 id. 119, 387. In the opinion in 16 Opins.
119, it was held that where no statutory authority whatever existed for accepting a gift
of land, a head of dei)artment would not be justified in accepting the same on the
condition that Congress ratify the acceptance and in anticipation of such ratification.
■^ But vmder the implied authority contained in Sec. 1838, Rev. Sts., lands required
as sites for forts, arsenals, &c., or needful public buildings, may be pm-chased (or
acquired by gift) without the consent of the State, though, in the absence of such
consent, public money cannot, in view of the provisions of Sec. 355, legally be
expended, upon tJie huildings. 10 Opins. At. Gen. 35; 15 id. 212.
*But by act of April 24, 1888, the Secretary of War is expressly empowered to
purchase, or accept donations of, land, for river and harbor improvements.
590 PUBLIC PROPERTY.
land should, in the exercise of the authority, be strictly construed.
Thus where a statute authorized the Secretary of War to purchase, for
a certain stated sum, a certain described tract containing a specified
number of acres, held that the act did not invest him with discretion
to purchase a portion only of such tract. XXXVIIl, 346, October,
1876.
2109. Authority to acquire land in a State, by the exercise of the
right of eminent domain, whether b}^ proceedings for condemnation in
the U. S. Circuit Court or in the courts of the State, ^ can be vested in
an executive ofiicial of the United States, only by express legislation
of Congress. XLII, 63, December, 1878.
2110. A State can have no authority to appropriate land included in
a military reservation of the United States to the purposes of a right
of way for a railroad.^ Such a right of way granted by a State legis-
lature, cannot be recognized as legal by the United States. XXXI,
249, 3farch, 1871.
2111. Where conflicting claims, not clearly groundless, were made
by several persons to the title to a portion .of a militarj^ reservation,
advised that the Secretary do not attempt to pass upon the questions
involved, but refer the parties to the courts for their legal remedies.
XXX, 72, February, 1870. (See § 766, ante.)
2112. A statute may grant title, and a statutor}^ grant is equivalent
to a patent — is, in fact, in the words of Attorney General Bates, '^ the
highest and strongest form of title known to our law." ' Thus where
a statute vests in terms in an individual or corporation the title of the
United States to certain land or other public property, in occupation
or charge of the military authorities, no deed or conveyance from
the Secretary of War is necessary; all that is required being that the
proper military commander or officer relinquish or turn over the
premises or property to the grantee. XXXVII, 596, June, 1876;
XLI, 28, October, 1877. And where the grant by the statute is made
upon a condition precedent, the title, upon the condition being per-
formed by the party, becomes complete without any written deed.
Thus where an act of Congress granted to a railroad company certain
land for buildings and a right of wa}' within the limits of a militarj^
reservation, upon the company's filing with the Secretary of the Inte-
rior a map of its route to ])e approved by him, and also locating,
under the direction of the Secretary of War, the land required for its
buildings and roadway; held that, upon these conditions being duly
1 See Kohl v. United States, 1 Otto, 367.
''See United States v. R. R. Bridge Co., 6 McLean, 517; Ills. Central R. R. Co. v.
United States, 20 Law Rep. 630; 6 Ojiins. At. Gen. 670; 16 id., 114.
» 11 Opius. At. Gen. 49. And see 9 id. 346; 12 id. 254; Terrettv. Taylor, 9 Cranch, 50.
PUBLIC PROPERTY. 591
performed, a complete title vested in the company. XXXVI, 130,
Deceinhe'i\ 187 Jf..
2113. The Constitution vests in Congress the exclusive power to dis-
pose of the property of the United States, real or personal.^ The Sec-
retary of War, in the absence of authority from Congress, cannot
alienate land of the United States. Thus, where a Company proposed
to cut out and remove a part of a dam (some one hundred and forty
feet) on Fox River, Wis., belonging to the United States, and to sub-
stitute another, as a private improvement, below, — held that this was
a proposition for the alienation by an executive official of public prop-
erty and could not legally be entertained. 29, 259, Januai'ij^ 1889.
2114. The title to lands purchased on account of the United States is
not properly assured by a certificate of "no liens", signed hj the
attorne}' who made the abstract of title. The proper person to make
such a certificate is the custodian of the records of judgment and other
record- liens in the county in which the land is located. '^ 33, 292,
Juhj. 1889.
2115. Held that the title and possession of the United States to and
of land situate at El Paso, Texas, duly purchased for cemetery pur-
poses, would properly be protected against a continuous trespass on
the part of the municipality in cutting a street through the land, by
an injunction sued out in the proper court, the remedy by suit for dam-
ages being inadequate.^ XLIX, 240, July., 1885.
2116. The State of North Carolina ceded to the United States, by an
act of its legislature of 1794, the land of the present military reser-
vation at Southport, N. C, the site of old Fort Johnson. A condition
of the deed of cession was to the effect that a fortification should be
erected on the laud within three years and be maintained forever
thereafter for the public service, or the land should revert to the
State. The time allowed was repeatedly extended, the last extension
expiring in 1818, when a fortification had been constructed if not fully
completed. The fort has long since ceased to be garrisoned. In 1889
an individual citizen 'entered' the site as State land. Held that this
act was without legal authority or effect; that the condition subsequent
in the deed was one of the breach of which the grantor, the State, could
alone take advantage; and that, as the State had not proceeded to
re-enter for such breach, the United States was not ousted and could
legally continue to hold the premises.* 36, 107, October., 1889.
M6 0pins. At. Gen. 477.
'^ ^See G. 0. 47 of 1881, for Attorney General's Regulations as to making deeds, prov-
ing title to lands, &c.
^Pomeroy, Eq. Jur. §§ 138, 1347, 1356.
*See Schulenberg !. Harriman, 21 Wallace, 44.
592 RAILROAD COMPANY.
2117. Except the State, War and Navy Building-, provided for by a
separate .statute, of March 3, 1883, the other buildings owned by the
United States and occupied by the War Department are not found
to have been taken from the charg-e of the Chief of P^ngineers. The
fact that a "superintendent of building"' is authorized, as in the case
of the appropriation for the Record and Pension Office, would not take
the building from the general charge devolved upon the Chief of
Engineers by Sec. 1797, Rev. Sts. 60, 237, June, 1893.
2118. When a general deposit is made in a bank, the depositor parts
with the title to the money deposited and takes in the place of it a
credit. This credit is a choHe in action and is '' property." This kind
of property when belonging to the United States may, under par. 585,
A. R. (489 of 1895; 566 of 1901), be protected like any other property.
Card 314, Septemher, 189Jf,.
R.
RAILROAD COMPANY.
2119. Where a railroad has been placed in the hands of a receiver,
the custody and control of the property are in the court, and the
receiver has no power, without the previous direction of the court, to
incur any expense except those absolutely necessary for the preserva-
tion and legitimate use of the property.^ 60, 118, June, 1893.
2120. An incorporated railway company cannot effect a consolida-
tion with another such company without a transfer of its franchise,
which cannot be legally transfered without the consent of the State
which granted it. 50, 455, Decemher, 1891. Where a railway com-
pany has been incorporated by act of Congress, it cannot transmit
the existence, thus given, to, or confer it upon, a consolidated company,
without the authority of Congress. 51, 11, Decemher, 1891. A cor-
poration is an artificial person owing its existence to the sovereignty
of the State, and it cannot assume to dissolve itself and at the same
time re-create itself as part of a consolidated company without the
assent of the .sovereignty which created it. And such assent cannot
be implied but must be given by special act of the legislature.'^ 51,
47, Decemler, 1891.
iCowdrey v. Galveston, etc., R. R. Co., 93 TJ. S., 352.
'■'Taylor on Private Corporations, § 419; Waterman on Corporations, vol. 1, p. 557;
Morawetz on Private Corporations, § 543.
RANK. 593
2121. The Sundry Civil Act of Mtiicli ;], 18U9 (30 Stats., 1108), con-
tains the provision '"''that no railroad shall be permitted upon the right
of way which may have been acquired by the United States to a national
cemeter3% or to encroach upon any roads or walks constructed thereon,
and maintained by the United States.'' Held that this provision was
intended to prevent the occupation of and encroachment upon the
rights of way or roads named therein; l)ut did not forbid the granting
of permission to lay a railroad track across a government roadway
leading to a national cemetery. Card 74:6Q, Dece7?iher, 1899.
RANK.
2122. Where the appointment or commission of an officer specifies
a particular date from which he is to rank, which is prior to the date
of the formal execution of the instrument, it is the former date which
fixes his relative rank in the army.^ XXIII, 439, April , 1867.
2123. Under the existing statute law, an officer of the army can
claim rank or precedence 1)y virtue of service as a rolunterr officer
onl}^ as between himself and another officer of the same grade and
date of appointment or commission — the case provided for in Sec.
1219, Rev. Sts. The 123d Article of War is operative to regulate the
relative rank, &c. of regular and volunteer officers only when serving
together in the army — as during the civil war, for example — as dis-
tinctive classes of commissioned officers." XLI, 238, May., 1878.
2124. Held that, in fixing his rank in relation to another officer of
the .same grade and date of commission, under Sec. 1219, Rev. Sts., an
officer w^as entitled to have taken into account a period of service ren-
dered by him ''as a commissioned officer of the United States" in the
volunteer force during the Mpxican war; the provision of the second
sentence of the section not being viewed as limiting the application
of the general and comprehensive provision of the first sentence.
XXXIX, ()()9, July, 1878.
2125. In fixing the relative rank of officers of the Kdtne grade and
date of appointment, by reference to time of service, under Sec. 1219,,
Rev. Sts., it is the time of service as a commissioned officer in the
army that is alone to be taken into consideration. Service in the navy
is not to be computed. 40, 51, Murcli., 1890. A second lieutenant
of infantr}', appointed in the army, October 10, 1883, claimed, by
' Except as between himself and an officer of the grade whose appointment or
commission gives rank from the same date as does his own, in Avhich case the rule
prescribed by Sec. 1219, Rev. Sts., governs.
- See, to a siinilar effect, an opinion of the Attorney General, in 1.5 Opins. 330. See
also note 1 to § 408, ante.
16906—01 38
594 RANK,
reason of service as a cadet of the Naval Academy from 1S76 to 1883,
a precedence over all second lieutenants of his date of appointment,
and the right to have his name placed in the register accordingly.
Ildd that the claim should be disallowed, since a naval cadet is not a
commissioned officer and not within the application of Sec. 1219, Rev.
Sts. LV, 672, June, 18S8.
2126. In the case of two brigadier generals of volunteers, officers of
the regular arm\', whose commissions bore the same date, and whose
prior service as commissioned officers had been continuous, hdd that
their relative rank should be determined by the dates of their original
entry into service, and this under the practice of the War Department
is determined by the date of acceptance of the original commission.
Card 4254, June, 1898.
2127. The general rule is that relative rank in the army is regulated
])y the actual rank held by the officer in his corps, and this hy the date
given him in his commission in such corps. If an officer has, imme-
diately preceding his present commission, held the same rank in
another corps, this will not give him increased rank in his present
corps, nor corresponding relative rank. To this rule a noticeable
exception is presented l)y par. 42, A. R., relating to transfers of offi-
cers, as amended ])v G. O. 47 of 1S!>1. 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<(mi<iry, 1870.
{(]) That the recoi'd should show that the court met and organized
pursuant to the order or orders constituting it. It is necessary, j^'/'.s?',
to the due organization of a general court martial that there should
assemble at the time and place indicated in the order, at least a quorum,
/. e. five, of the officers detailed as members. And the record should
show that at least five members Avere present and acting, not only at
the original assembling anu proceeding to business as well as at the
formal organization after the right of challenge has been fully exer-
cised, but also at every day's session throughout the trial to the end.
Ill, 413, Augufyt, 1863; VI, 384, September, 186. f^. The record of
the first assembling should, preferably, specify the members present
by name, rank, «.^c. : the statement that ^^ all the vwinbeni'''' were
present, while stricth' sufficient, is not a form to bo favored. A state-
KECORD OF COURT MARTIAL. 599
ment to the effect that the same nienihers were present as at a previous
trial by the same court, is improper, as being iu contravention of the
rule that the record of each case should be an entirety and not made
up as to any particular by a reference to a record of a previous case.
Ill, 402, Au(/hM 14^ 1863. It is not however irregular to state at the
commencement of any da^-'s proceedings — subsequent to the day of
the first session of the court in any case — that all the members and the
judge-advocate, without specially naming them were present. XXI,
351. April, 186G\ XXVI, 616, April, 1868. The record should also
show the presence of the accused at the time of the organization oi the
court for his trial, as also at all the material stages and portions of the
proceedings.^ XXIV, 488, April, 1867.
In the record of the proceedings of a court martial at its organiza-
tion for the trial of a case the officers detailed as members and judge-
advocate should be noted by name as present or absent. In the record
of the proceedings of subsequent sessions the following form of words
should be used, subject to such modifications as the facts may require:
"Present, all the members of the court and the judge-advocate."
When the absence of an officer who has not qualitied, or who has been
relieved or excused as a member, has been accounted for, no further
note should be made of it.' 46, 395, April, 1891. It is not customary
to take notice in the record of a mere recess; but if a recess be noted
at all, it should appear from the record that, on the reassemliling. the
members, judge-advocate and accused were duly present. 57. 418,
January, 1893.
(t) That the record should show that the order or orders convening
the court and detailing the members were read to the accused or commu-
nicated to him, and that he was afforded an opportunity of objecting to
any member, that is to say, that the privilege of challenge, accorded
and defined by the 88th Article of War, was extended to him. II, 83,
March, 1863. This testing of the members is the second essential to the
due organization of the court, and, though the phraseology of the ques-
tion put to the accused, or of his answer thereto, need not be given in
the record, it should clearly appear either that he had (or made) no objec-
tion, oi' if he made any, what it was. IX, 1(36, Mat/, IS64. Where
a specific challenge is offered, it should, preferably, be recorded in the
terms in which it is expressed by the accused; and, in connection with
each challenge, the record should set forth the remarks of the mem-
ber, if any, and the action of the court, as also, if an issue be joined
on the challenge, the evidence, if any, introduced, and the argument
had. Where a member is added to the court at a subsequent stage of
^ Compare Long r. State, 52 Miss. , 23.
^ See Circular 5, A. G. O., 1891; also Court-Mar. Manual (1901 ), p. 137, note 1.
600 RECORD OF COURT MARTIAL.
the proceedings, the record .should similarl}' show that the accused was
afforded an opportunity of ol)jecting to him, and set forth the action
taken if objection was made. VIII, 602, July^ 186^. It maj^ be added
that while, with the convening order, any subsequent orders by which
the original detail may have l^een modified, should be read to the
accused, — the fact that other orders relating to the court, but not to
its ^J)t^r.5?6»;^/k/, such as an order changing the place of meeting or an
order authorizing the court to sit without regard to hours, may not
have been so read, will not constitute an irregularity. It is usual,
however, and proper, to read all such orders, equally with those relat-
ing to the composition of the court, in the presence of the accused.
XXXIX, 239, October, 1877.
{/) That the record should show, as the final essential to the due
organization of the court, that the members and judge-advocate were
qualified by being dulj^ sworn. And this should be shown in the rec-
ord of every case tried b}^ the same court, since the court and judge-
advocate must be sworn independently and anew for each trial.'
XXXV, 3, April, 1873. The approved form for recording this pro-
ceeding is: "The members of the court and the judge-advocate were
then dul}^ sworn." Any statement, however, will be legally sufficient
from which it can be gathered by the reviewing officer, or presumed,
that the members and judge-advocate were in fact qualified as required
b}' Arts. 84 and 85. Where an absent member joins or a new mem-
ber is added to the court, or the first judge-advocate is relieved and a
new judge-advocate is detailed, at a stage of the proceedings subse-
quent to the original organization and qualifying, the record should
show that such member or judge-advocate, before acting, was sworn
as above indicated.^ Ill, 548, August, 1863; IX, 222, June, 186 1^,;
Card 5323, Novemher, 1898.
{(j) That the record should further set forth the arralgnnient of the
accused on the charges and specifications, with the plea or pleas made.
If special pleas are interposed, the issue joined and action taken upon
the same should be clearly stated. II, 83, March,, 1863; XV, 5-16,
July, 1865; Cards 5166, 51ST, October, 1898. The charges and speci-
fications should properl}^ be embodied in the record instead of being
referred to as annexed. XIV, 39, January, 1865.
(/i) That the record should fully set forth all the testimony introduced
^Compare Coffin v. Wilbour, 7 Pick. 150. "It is not considered a compliance
with" par. 829, Army Eegulations, directing that "the court is to be swoi'n at the
conunencement of each trial," "to call several prisoners into court at the same time
and swear the members of the court once before them all." G. O. 60, War Dept.,
1878. See also Court-Mar. Manual, pp. 59 and 139.
^The inversion of the proper order of swearing the court and judge-advocate was
held by the Attorney General (lo Opins. 374) not to have invalidated the proceed-
ings of a naval court martial.
RECORD OF roTTRT MARTIAL. 601
upon the trial — the oral portion a.s nearly as practicahle in the precise
words of the witness. II, 23, Febt'um^^ 1863. For a judg-e-advocate
to assunio to record only such testimon}" as he considered material, or
to summarize the testimony given, has been remarked upon as a gross
irregularity. Ill, 189, July, 1863; XX, 42, October, 1865.
It is usual and proper (though not essential) to specify l)y which
party the witness is introduced and by whom the questions are put.
XXXIV, 435, Septemhei\ 1873. It is also usual (though not essen-
tial) to designate the point at which the prosecution is closed and the
testimony for the defence is commenced. IV, 131, Sejytemher, 1863.
It should appear that each witness (whether or not his evidence was
important) was duly sworn (III, 550, August, 1863; XXI, 43, JVorem-
1)1 r, 1865; XXXI V, 457, Sej/teinher, 1873), but it is not customary' to
add that he was sworn in the presence of the accused; this fact that he
was so sworn being presumed in the absence of any statement to the
oontrar3\^ IX, 166, May, I86J4.. Objections taken to the admissibility
of testimonj^ should be set forth with the argument had thereon, if
any. and the ruling of the court (XXVI, 643, July, 1868); and where
the couit is closed on any interlocutory objection, the fact will properly
l)e noted. IX, 221, June, 186Jf..
AMien the court closes, the record should, (now) properly set forth
that the judge -advocate 'withdrew. (Act of July 27, 1892, s. 2.) But
an absence of a' statement to this effect will not impair the legal valid-
ity of the record. Where it simply appears from the record that the
court "closed," the presumption will be that, in closing, the require-
ments of law were observed.^ 56, 387, JSFoveinher, 1892; 65, 350. 356,
J>n)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 lr<jalilv «»r
i(s |>rociM'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(/?</' iii'i (inal ac( ion on (he seidence, could h^eally reeonvtne (he
coiir( to : iippU (he omission in (he record, if (here was in fac( an ouds
.sion; (ht^ only pllrpos(^ of such re\ ision l>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, S<pt,,Hh,i\ /Sh'',;
XI, !K!, .\<>rr/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 <A' (he
riMH)l"(l its(dt' or hy copies proved (i>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 (</., \W\ Swaim r. T.S., i('u\ m/., otil,
ivl'coK'it oi' si:k\ ici.;.
007
lisidi' MS void, i( WMs licM 1 li;i( 1 lie i'(>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<li ciisi' (li(>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(i<Mi of tin' TresidiMit, /h/i/ lliiil (he
order publishing (he e.-ise mid sediiiLj' forth (lu^nedon (liertMni of the
rresid(>n( \\: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<Tulf,
1863; do. 38, Dei)t. of the East, 1864; do. 36, iMiddie Dept. 1864; do. 5, 2d Div., oth
Army Corps, 1864; (i. C. :M. O. 25, 51, Army of Potomae, 1864; do. 12 k7. 1865. No
instance has been met with of the imposition of tliis jiunisliment upon a conviction
under the Uttter statute. -In some few cases, during the t-ivil war, tliis inmishment
was adjudged — illegally — for offences other than those specified in the acts designati'd
in the text.
■'The authority to order the transfer of soldiers is expressly vested by the Army
Kegulations in certain military conmianders.
IIE-ENLISTMENT. 609
mander. Ileld^ that the legal effect of such appointment was to reduce
the deserter to the grade of a private. Card 2213, May^ 1896.
2152. The legal effect of an order making* an appointment or pro-
motion of a non-commissioned officer to a position supposed to be
vacated by an illegal sentence, when made by the officer having
authority to reduce by order, would be a reduction by order of the
soldier so sentenced to reduction. Card 2757, JSfoveniber, 1896.
RE-ENLISTMENT.
2153. Except in cases to which the last paragraph of the 60th Article
of War may be applicable, a soldier cannot be made amenable for an
offence committed under an enlistment prior to that in which he is
serving. Re-enlistment does not revive such a liability. L, 501, July^
1886.
2154. The term re-enlistment is sometimes used in the narrow sense
of an enlistment within one month after discharge under sections 1282
and 1284, Rev. Sts. ; but these sections simply prescribe increased pay
in case of re-enlistment within one month. ^ They do not prevent a
re-enlistment after the expiration of the month. Section 1116, Rev.
Sts. is based upon the law of March 16, 1802 (2 Stats. 135), in which
there is no such limitation as to time. Re-enlistment under this statute
means a re-entry into the service and it is prescribed that as to such
re-entry the limitation as to age shall not apply. LVII, 41, October,
1888.
2155. The act of June 20, 1890, c. 437, in directing the mustering out
of the enlisted men of the Artillery Detachment at West Point and their
immediate re-enlistment as army service men in the Quartermaster
Department, does not authorize their being forced into a new contract
or re-enlisted against their will. The enlistment, like all other enlist-
ments, can be voluntar}^ only. 41, 460, 'July, 1890.
2156. Held that the provision of the Arni}^ Appropriation Act of
Feb. 27, 1893, c. 168, that thereafter, in time of peace, '"no private
shall be re-enlisted who has served ten years or more," applied to
"lance corporals" and "band musicians," but did not apply to general
service clerks, or to the musicians of the band of the Military Academy.
58, 333, JIarch, 1893.
2157. Under the act of Feb. 27, 1893, c. 168, a soldier who has served
as an enlisted man twenty years or more may be re-enlisted, but if
G. O. 96 of 1891 be observed, only in his former command. 61, 57,
August, 1893. The term — "as enlisted men " — here employed, held, in
^The act of Aug. 1, 1894, c, 179, extends this perioci to three months.
16906—01 39
610 REGULAR ARMY,
view of the context, to mean enlisted men of the army. A service of
twenty years, a portion of which was rendered in the navy, held not to
authorize a re-enlistment.' 62, Dl, Octohep, 1893; 65, 257, June, 1894-
2158. Desertion during a term of enlistment rendered service during
such term /lof honest and faithful within the meaning of the act of
June IG, 185)0, and for the purposes of that act onl}'. Held, therefore,
that the question whether desertion constitutes a bar to re-enlistment
under the act of Aug. 1, 1894, is a matter to be determined by the
Secretar}^ of War. Cards 2004, 2121, January and March, 1896;
3530, Septeinler, 1897; 3794, June, 1898.
2159. Held that the term of three months after honorable discharge
within which a man ma}' be re-enlisted under the act of August 1, 1894,
commences on the da}^ after the day of the discharge. It is a uniform
principle in the construction of statutes — which do not expressl}^
describe a different rule — that where time is to be computed from an
act done, the day on which the act is done shall he excluded.^ Card
1084, March, 1895.
REGULAR ARMY.
2160. The regular army was mainly distinguished from the other
principal contingent of the army of the United States during the civil
war — the volunteer force — by the fact that the tenure of office of the
officers of the former was not in general limited, cither expressly or
by implication, to the period of the war. An unlimited tenure, how-
ever, is not a necessary or invariable incident of office in the regular
arnw. The eleven new regiments, for example, added to the regular
army by the act of July 29, 1861, were "declared to be for service
during the existing insurrection," &c.* XXXIV, 459, Septemher, 1873.
2161. The term regular army and "'volunteer army" are not sig-
nihcant of the methods l)y which these two branches of the army are
brought into the service. The term ' ' regular army " simply means
the ""standing army" — the military organization of the (xovernment,
which it is the intention ordinarily to maintain and continue in existence
indefinitely and without regard to whether the country is at peace or
at war; and this army is made up of persons who engage voluntarily
and directly with the United States to serve. Card 1301, March, 1895.
1 This conclusion was sustained by a subsequent opinion of the Attorney General of
Nov. 23, 1893.
But the provision here referred to and that referred to in the preceding section of
the act of Feb. 27, 1893, were repealed by the act of Aug. 1, 1894, "to regulate enlist-
ments in the Arniv".
*See 9 Opins. At. Gen., 131.
'And see Extk.\ Pay, as to the similar tenure of medical storekeepers of the army;
also Aid de Camp, as to the tenure of "additional " aids de camp.
REMISSION. 611
RELIEF.
2162. An officer or soldier cannot in general properly be relieved by
executive authority from the consequences of a militar\^ order or pro-
ceeding- unless the same has deprived him of some si^ecijic right capable
of being legally restored by the same authority — as a right to pay, allow-
ances, or bounty, or a right of command, precedence, &c. Action not
looking to some recognized form of specific relief must in general be
superfluous and futile, and to take such action is contrary to the usage
of the War Department. Thus where, in the case of a party who, in
1864, had been dismissed the service as an officer of the arm}^ b}- the
sentence of a court martial duly confirmed and executed, an applica-
tion, supported by evidence going to indicate that his dismissal may
not have been strictly legal, but not satisfactorily establishing the fact
of illegality, was presented in his behalf, asking to have the stigma
attaching to his record in the service by reason of the dismissal
removed by an official declaration in general orders, — advised^ that
.such form of relief, especially in view of the fact that the part}^ had
deceased, would not be within the proper province of the Secretary of
War. XLI, 214, Ajml, 1878.
2163. An executive department has in general no poiner either to
undo an executed legal act of the j^ast or to indemnify a party for injury
suffered by him therefrom. Thus where an officer claimed that he
had been unjustly prejudiced b}'^ not having had a higher relative rank
in his grade given him by his original appointment, but it appeared
that said appointment had been confirmed by the Senate, accepted, and
held for nearly thirteen years, and that to increase as desired the rela-
tive rank thereby conferred would divest the rights of twelve officers
who now ranked the claimant in his grade, advised^ that however
unjustly his appointment, when made, may have discriminated against
this officer, his case was one in which Congress alone could grant the
appropriate relief.^ XLIII, 206, Fehruai'y, 1880.
REMISSION.
2164. Remission is relieving the person from a punishment or the
unexecuted portion of a punishment, but not pardoning the offence as
' The authority of the executive department of the Government to grant rehef is
limited by strict law and to a few subjects. Congress, in our system, is the fountain of
general relief. By its authority to authorize special appointments, and to dispose of
the public money, it can meet and adequately provide for nearly all the applications
for relief presented by officers and soldiers of the army which the Executive is not
empowered favorably to act upon.
As to relief by means of the Pardoning Power, see § 1866-1883, ante. As to relief
from a dismissal, or from a sentence of court martial, see §§ 1199, 1200, 1214, 2042,
ante, and §§ 2367-2373, j^ost.
612 REMOVAL OF DISABILITY.
such, or removing the disabilities or penal consequences attaching-
thereto or to the conviction,^ The pardoning of "punishment,"
authority for which is vested in certain conuuanders b}' the 112th
Article of War, is remission. An offender can be completely rehabili-
tated only by afuN pardon granted under the pardoning power of the
Constitution.' XXIV, 671>, 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 repriman<J.,
will, if adding anything in regard to its execution, properlv direct that
the reprimand be administered by the commander who convened the
court. A sentence to be reprimanded by an othcer inferior to the
convening authority is not in accordance with the approved practice
of the service. It is not necessary or desirable, however, that the court
should direct as to the exei'ution of the sentence, the same being the
proper prinince of the reviewing otticer. XII, 18, Octobei\ 186Ii..
2175. Although, in adjutlging ;i reprinuuul, it is generally intended
by a court martial to impose a mild punishment, the quality of the
reprimand is nevertheless left to the tliscretion of the authority who is
to pronoimce it, and it is open to him to make it as sere/'t as he may
deem expedient without being chargeable with adding to the punish-
ment. XXXlll, 4\% JVovemhet', 187'2.
REQUISITION.
2176. Whether the Executive shall turn over a military prisoner
undergoing sentence of court martial to a governor of a State, upon
his formal request, in order that he may be tried and punished by a
court o( the State, or in order to enable such governor to surrender
him to tlu' governor of another State in compliance with a requisition
made by the latter for the party as a criminal under the laws of the
latter State, — is a question to be decided by considerations of policy
and expediency suggested by the facts of the particular case. The
RESIDENCE. 015
U. S. Government is under no obligation to surrender its prisoner,
and whether it will, in comity, do so, should in genenil depend mainly
upon the nature of the crime charged. Unless the part}'- be charged
with a peculiarly heinous offence, of which, for the purposes of public
example and punishment, a prompt investigation b}" a civil tribunal is
called for, the Executive will in general properly decline to turn over
the part}^ to the civil authorities till his military punishment has been
fully executed. XXXVII, 47, Octoher, 1875.
RESIDENCE.
2177. The fact that an officer is stationed within a particular State
or Territory does not make the same his legal residence, since he is there,
not by his own will or choice, l)ut in obedience to the order of a superior,
and moreover can have no (in! tit us rtianetidi, subject as he is to be re-
moved at any moment b}" a similar order to a station in a different
State or Territory.^ Exceptions, however, to this general rule may
exist in the cases of officers who are not subject, or likelj^, to have their
places of habitant-y changed by superior military authority. Such are
the cases of the officers — the chiefs of the staff' corps for instance —
whose duties require them to remain or at least have their offices per-
manently in Washington; and such are also the cases of the majoritj'^
of the officers on the retired list. In any such exceptional case, the
question of residence, where it is at all doubtful, will in the main, as
in the cases of civilians, be determined b}' the evidence of an anitnus
tnanendi^ as exhibited b}" the acts and declarations of the part3^
XXIX, 85, July 1S69; XXX, 215, 528, March and July, 1870.
2178. An officer who has resided elsewhere cannot make a certain
place his residence by merely declaring that it is so, or that he has
elected it to be such. He must take some definite action indicating an
intention and an ability to permanently remain, such as providing
himself with a dwelling there, removing his family there, entering
into business there, etc., to constitute the place designated his actual
residence or domicil in law, 53, 4-1:3, 2fay., 1892.
2179. If a legal residence in a certain State has once existed, mere
temporar}'^ absence, however long continued, as the result of an enlist-
ment or enlistments in the arm}-, will not destroy it.'^ L. 392, June,,
1886. Liability to taxation or other liability, as a resident of a certain
locality, is not ordinarily affected by the enlisting or holding of a com-
Kiraham v. Commonwealth, 51 Pa. St. 258; Wood v. Fitzgerald & Wingate, 3
Oregon, 568; G. 0. 13, First Mil. Dist., 1868; Tavlor v. Reading, 4 Brewst. 439; Devlin
V. Anderson, 38 Cal. 92. And see § 645, ante.
^ Brewer v. Linnaeus, 36 Maine, 428.
616 RESIGNATION.
mi.s.sioii in the army and the ])eing .stationed at a place other than such
locality; the party being at such place not by his own volition, and
the animtis reveriendi to the original domicil being presumed to still
subsist. 1 LV, 623, January, 1888.
2180. The legal residence of the father of a person who was a com-
missioned officer in the military service at the time when he became
of age was Calais, Vermont. Soon after attaining his majority, the
military station of this officer (he continuing in the army) was changed
to Burlington, Vt., where he is now on dut3\ Sec. 63 of the revised
statutes of Vermont provides that "no person shall gain or lose a
residence b}' reason of his presence or absence while in the service of
the State or of the United States." Held that the residence of the
officer was still Calais, Vt., his status, after leaving there, not having
been such as to enable him to acquire a new residence. 60, 223, June^
1893.
2181. The legal residence of an unemancipated minor is that of his
father or parent, and as an officer of the army does not acquire a new
legal residence hj being temporarily on duty at a station, his uneman-
cipated minor son could not acquire a legal residence at such place.
Card 1220, Ajjril, 1895.
2182. A person in the military service of the United States, is
entitled to vote w^here he has his legal residence provided he has the
qualifications prescribed b}- the laws of the State. He does not lose
such residence by reason of being absent in the service of the United
States. The laws of a particular State in which he is stationed and has
only a temporary as distinguished from a legal residence may however
permit him to vote in that State after a certain period of actual resi-
dence. Cards 472, Octoher, 1891^; 601, Novemler, 1891^.
RESIGNATION.
2183. It has been held b}' a United States court '^ that "a civil
officer has a right to resign his office at pleasure, and it is not in the
power of the Executive to compel him to remain in office." In a case
of a military officer, however, this right is subject to certain restric-
tions growing out of the militar}^ status. Thus while, in time of
peace, an officer of the army, in good standing, is in general entitled
to tender and have accepted his resignation, yet, in time of war or
when grave embarrassment to the service or prejudice to discii)line
ma}^ result from his leaving his duty, the acceptance of his resignation
may properly be refused. And so, where he has tendered his resigna-
^ JacobH, Law of Domicil, 401.
^ United States v. Wright, 1 McLean, 512.
RESIGISIATION. 617
tion while under charges, and a failure of justice might result from
allowing- him to evade trial. XIV, 129, Fehruary^ ISGo.
2184. A resignation does not become operative until the officer is
officially noticed of the acceptance of the same. Mere acceptance,
without notice, does not give effect to the resignation. It is not till
due notice of the same is received that the officer is legally separated
from the army and made a civilian, and up to the date of such notice
he is entitled to pay.^ XLII, 68, Decemher. 1878.
2185. A mere offer to resign or tender of resignation is revocable at
any time before acceptance. But after an acceptance, and before effect
has been given to the same b}' notice (see § 2184, ante), the offer can not
be withdrawn or materially modified by the act of the officer alone,
but the consent of the appointing power is also necessary. After due
notice of the acceptance has been communicated, there can of course
be no withdrawal of the tender^ or revocation of the acceptance.
XXXIX. 375; Card 2170. Ajjrih 1896.
2186. While a tender of his resignation b}" an Insane o^qqv is in general
without legal effect and incapable of being legally accepted,^ yet where
a resignation tendered by an insane officer was, in the absence, at the
War Department, of any knowledge of his insanity, formally accepted,
and the vacancy created by the resignation was thereupon filled. — held
that the acceptance could not legally be revoked, and that the appoint-
ment to the vacancy was valid and operative.* XXXIX, 120. Ft^>ru-
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
'!</."296; 19 Opins. At. Gen., 2S3. If the retired officer receives $2,500 or more, the
holding of any other office is forbidden, by sec. 2 of the act of July 31, 1894 (28 Stats.
205) , except as specified in that act. See § 2210, po.s/, and notes. See, also, sec 7,
act of July 3, 1896 (29 Stats. 235), as to employment of retired officers on rivers and
harbors.
RETIREMENT. 621
Rev. Sts., was a physical cause; that moral obliquity was not had in
view; and that the matter of the financial integrity of the officer was
beyond the jurisdiction of the board. So, held that the board was not
authorized to recommend the retirement of an officer because he did
not pay his debts. 41, 403, Jidy^ 1890. Held also that the inabilit}^
of a disbursing officer to furnish a bond when duly required to do so
was not sufficient ground for his retirement. 64, 53, Fel:>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<ms are given therefor, or whether the reasons given are well-
founded in fact or sufficient in law. XXVIII, 198, Octoher, 1868.
2230. A reviewing officer cannot himself correct the record of a
court martial by striking out any part of the finding or sentence, or
otherwise (see § 2256, ^».s'/'); nor can he in general change the order in
which different penalties are adjudged by the court to be suffered (see
§ 1146, ante)\ nor can he add to the punishment imposed by the court
though deemed b}^ him quite inadequate to the offence. (See § 2320,
post.) He may, however, in general, specify the reasons for the action
taken by him, without transcending his authority. Thus, where a
depai'tment commander disapproved a sentence as inadequate, and, in
stating his grounds for so doing, commented unfavorabl}" upon the
conduct of the accused as indicated by the evidence, held that such
comments were a legitimate explanation of the action taken and did not
constitute an adding to the punishment.^ XIX, 676, August, 1866.
2231. Where the reviewing officer deems that the proceedings of
the court are in any material particular erroneous or ill advised, his
proper course in general will be to reconvene the court for the pur-
pose of having the defect corrected, at the same time furnishing it
with the grounds of his opinion. Thus if he regards the sentence
inadequate, he should, in reassembling the court for a revision of the
same, state why he so considers it. XI, 490, February., 1865. While
he cannot compel the court to adopt his views in regard to the sup-
posed defect, he may, in a proper case, express his formal disappro-
bation of their neglect to do so. Thus where a court martial, on being
reconvened with a view of giving it an opportunity to modify a sen-
tence manifestly too lenient for the offence found, decided to adhere
*See as a marked instance of such comments, G. C. M. O. 104, Navy Dept., Sect.
13, 1897.
REVIEWING AUTHORITY. 629
to the sentence as adjudged, and, on being again reassembled to con-
sider further grounds presented b}- the reviewing- commander for the
infliction of a severer penalt}", again declined to increase the punish-
ment, — held that it was within the authorit\^ of the reviewing officer,
and would be no more than proper and dignified for him, in taking
final action upon the case, to reflect upon the refusal of the court as ill-
judged, and as having- the efi'ect to impair the discipline and prejudice
the interests of the militar}' service.^ IV, 579, January^ 186 Jf.; Xll,
546, August, 1865.
2232. In passing upon the findings and sentence of a court martial,
the reviewing officer will properly attach special weight to its conclu-
sions where the testimony has been of a conflicting character. This
for the reason that, having the witnesses before it in person, the court
was qualified to judge, from their manner in connection with their
statements, as to the proper measure of credibility to be attached to
them individually. - XXX, 383, 447, Ifaij and June, 1870; XXXV,
542, August, 1871^; XXXVIII, 272, 325, August and Sejjtember, 1876.
2233. The reviewing authority should properly authenticate the
action taken b}' him in any case by subscribing in his own hand (add-
ing his rank and command, as indicating his legal authorit}- to act)
the official statement of the same as written in or upon the record.
(See § 2136, >?■, 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<t, 1873; XLV,
439, September, 1882. (See §§ 2136, I, and 2143, ante.)
2255. Where, after a sentence had been duly adjudged, and the record
forwarded to the reviewing officer, a majority of the members of the
court transmitted to him a written statement to the effect that the sen-
tence was intended to have a certain meaning not conveyed by its
terms — /. e., was not intended to operate as a forfeiture of certain pay
clearly forfeited by it as recorded — held that such irregular statement
could have no effect as a correction of the sentence; that the proposed
correction could only be made by the court itself, after having been
reconvened to reconsider the sentence. XXXIII, 347, Septemher, 1872.
2256. The reviewing officer himself can have no authority to make a
correction in any part of the record. Thus where, upon a specifica-
^See G. O. 47, Hdqrs. of Army, 1879.
-' See par. 19, S. O. 99, A. G. O., 1900, quoted in note to § 2242, ante.
RIGHT OF WAY. 635
tion duly setting forth ii military offence, a court martial found an
accused "guilt}" but without criminality,'' and the reviewing com-
mander, in disapproving this contradictor}' finding, ordered that the
words after " "guilty" be treated as struck out of the record, JieJd that,
however objectionable the finding, the reviewing ofiicer could not him-
self assume to correct it. If he desired it amended, he should have
formally reconvened the court for the purpose. XII, 250, January^
1865. Nor has the War Department authority to correct the findings
or sentence of a court martial. Card 1624, December^ 1895.
2257. Where the court has been dissolved., or, by reason of any cas-
ualty or exigency of the service, cannot practically be reconvened,
there can of course be no correction of its proceedings. XXXI, 108,
Dccewher, 1870.
2258. The procedure here contemplated is of course quite distinct
from the ordinary revision and correction of its proceedings by a court
martial from day to day during a trial and before the record is com-
pleted. XXVIl^ 581, 2Iarch, 1869.
RIGHT OF WAY.
2259. Where an act of Congress grants to an individual or corpora-
tion a right of way (or other franchise), no formal acceptance of the
same is necessary. By simply acting under the grant, the grantee
accepts the same with all its conditions. 59, 418, May., 1893.
2260. Where a grant of a right of way is made by the United States
to a particular grantee over lands of the United States, but without
designating the precise strip of land in the entire body of land which
is to be occupied, it is held by recent authority that if the grantee
selects such way, and the grantor does not object to such selection but
silenth' acquiesces therein, he substantially constitutes the grantee his
agent for such selection, and himself joins, in law, in the selection,
and the title to the tract selected passes to the grantee.^ This ruling
held appli(^able to the case of the right of way through the Fort Leav-
enworth military reservation, granted to the Kansas and Missouri
Bridge Company, by the act of July 20, 1868, c. 179. 50, 395, Decem-
hr, 1891.
2261. The right of way granted to the Northern Pacific Railroad
Company by sec. 2 of the act of July 2, 1864, c. 217, unlike the grant
of lands by sec. 3, was subject to no exceptions or limitations. So,
held that the fact that, subsequently to the date of the act, the Presi-
dent reserved land on the line of the railroad for military purposes,
before the company had definitely fixed its line and filed its maps,
did not artect the right of way as granted b}^ the act, and that such
1 Railway Co. v. Ailing, 99 U. S. 468; Onthank v. Railroad Co., 71 New York, 196.
630 RIGHT OF WAY.
way was not interrupted by such reservation.^ XLIX, 3.57, October^
1885.
2262. AMiere an enactment of Congress (the River and Harbor
Appropriation Act of Sept. 10, 1890) required the Secretar}^ of War
to '■'acquire the title'' to certain lands sufficient for a right of wa^^for
a canal, Jield that a contract of conveyance made with the owner of
the land, a railroad company, ])y which a use was granted of such way
jointly with the company, was not a compliance with the law, and that
if no better title could be obtained by agreement, the Secretary should
proceed to the alternative (authorized in the act) of causing the
premises to be condemned. 51, 184, January, 1892.
2263. The act of September 10, 1888, c. 999, relating to rights of
way of railroads through water-reserve lands in Wisconsin, confirms, as
to that State, the rights of way given bv the act of March 3, 1875, c.
15:>. 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><lniint1: the authority to use the
needful force in such cases will not justify the superior, when the offender is repressed
or apprehended, in subjecting him to arbitrary punitory treatment. See §§ 1192-
1 195, a)de.
SENTINEL. 655
2323. A legal sentence of court martial, when once duh' approved
and executed^ cannot be reached l)v a pardon, nor revoked, recalled,
modified or replaced b}^ a milder punishment or other proceeding,
either by the Executive or by Congress.^ The only remedy for a party
who has suffered injustice from such a sentence is either a new appoint-
ment to the arni}^ by the President or some legislation within the prov-
ince of Congress ^ relieving or indemnifying him for and on account
thereof. XLI, 538, April, 1879; XLII, 320, June, 1879; LIII, 143,
Octohei\ 1886; Cards 4494, June, 1898; 6590, June, 1899.
2324. Where a sentence in excess of the legal limit is divisible, such
part as is legal may be approved and executed. Thus where a sentence
of an inferior court imposes a fine or forfeiture beyond the limit of
the S3d Article of War, the sentence may be approved and executed
as to so much as is within the limit. '^ 55,349, Septemljer, 1892; 59,27,
Ajjril, 189S; Card 439, (Mohei\ 1891^.
2325. The rule prescribed in pars. 1025 and 1032, A. R. {944 and
951 of 1895),* to the effect that confinement and forfeiture, when the
sentence is silent as to the time of their taking effect, shall be opera-
tive from the date of the promulgation of the sentence in orders, is an
exception to the general rule that orders affecting the status or rights
of officers or soldiers shall take effect from notice. But where a
sentence of dismissal of a cadet of the Military Academy was on
October 31, 1893, commuted to suspension from the academy without
pay until Aug. 28, 1894, hdd that the general rule, in the absence of
any specific exception of such a case by the Army Regulations, applied,
and that the sentence as commuted took effect upon and from notice,
the forfeiture commencing to run from its date. 64, 280, April, 1894^.
2326. The suspension of the sentence of a court martial liefore or
pending its execution is a procedure without precedent in our military
service. Card 8838, August, 1900.
SENTINEL.
2327. Respect for the person and oifice of a sentinel is as strictlj^
enjoined by militar}^ law as that required to be paid to an officer. As
it is expressed in the Army Regulations "all persons of whatever rank
in the service are required to observe respect toward sentinels.'"
Invested, as the private soldier frequently is while on his post, with a
grave responsibilit}^ it is proper that he should be fully protected in
* The well established principles, that mere irregularities in the proceedings will
not affect the validity of an executed sentence, and that a legal sentence once duly
conlirnicd and executeil is "no longer s<ubject to review i)y the PreHident," so
pointedly set forth (in 184.S) in 4 Opins. 274, are further illustrated in 15 id. 290,432.
^See §■§ 1199, 1200, 1394, 1869, 2041, and 2235, ante.
«See Circ. Ko. 12, A. G. (). 1892.
^Paragraphs 1045 and 1052 of 1901.
656 soldiers' home.
the discharg'e of his duty. To permit ain^ one, of whatever rank, to
molest or interfere with him while thus employed, without l)eeomino'
liable to a severe penalty, would obviously establish a precedent highly
prejudicial to the interests of the service. So where, in time of war,
a lieutenant ordered a soldier of his regiment, who had been placed on
duty as a sentr}^ by superior authority, to feed and take care of his
horse, and, upon the latter respectfully declining to leave his post for
the purpose, assailed him with abusive language — held that a sentence
of dismissal imposed by a court martial upon such officer, on his con-
viction of this offence, was fully justified by the requirements of
military discipline. XVIII. m%[ F<hruani. 1866.
SOLDIERS' HOME.
2328. Sec. 4824, Rev. Sts., subjecting the inmates of the Soldiers'
Home to the Rules and Articles of War, is unconstitutional and a dead
letter. These inmates are no part of the army, nor are they supported
by the United States. The}' are civilians occupying dwellings and
sustained by funds held in trust for them. The territory of the home
being within the District of Colum])ia, and not having l)een exempted
b\" Congress from the operation of the criminal laws of the District,
the inmates are subject to those laws like any other residents.^ 55, 406,
Septemher, 1892.
2329. An inmate is not required to remain at the home if he wishes
to leave it. The privileges of the institution may be renounced by any
act showing an intention to renounce them — such as direct notice of such
intention, or by absenting himself with the evident purpose of not
returning. In Februaiy, 1864, a certain inmate was transferred from
the home to the Government Insane Hospital, and was discharged
thence as sane in June, 1864. He did not return to the home and was
not again heard of till March, 1886, when it was ascertained that he
was at the State Insane Hospital of Pennsylvania. As he was sane
when he left the government hospital and did not return to the home
within a reasonable time, but remained absent nearl}" twenty-two years,
held that he uuist be deemed, in the absence of contrary evidence, to
have intended to permanently separate himself from the institution,
and that he therefore was not now an inmate or member of the same.
L. 1(!7, A2:)rlK 1886.
2330. Contracts for the home should be entered into, not by the
"Soldiers' Home," which is not an incorporated institution, but by
the Board of Commissioners, who, as representing the United States
in th^e management of the home, may authorize contracts which wull
bind the United States. 58, 137, February, 1893.
'Comiuirc opinion of Atty. Gen. in 20 ()j)in.«. 514.
soldiers' home. 657
2331. The funds for the .support of the Soldiers' Home are not of
the cUlss of public moneys annually appropriated for a specific object,
as for the pay of the army, but a .special trust fund committed to and
administered by the Board of Commissioners for the benefit of the
institution. From an earl}- period in the history of the home it has
been the usage for the commissioners to permit the officers of the
home (retired oflicei's of the army residing thereat), gratuitously to
receive and use a reasonable portion of the ordinarj" supplies of fuel,
light, forage, milk, ice and vegetables, either produced at the home or
obtained for its consumption. Held that such allowance was not in
contravention of law; that the articles thus issued are not of the class
of military pay and emoluments, and therefore unauthorized because
not allowed by law to retired officers, but are a reasonable share of
the supplies for the use and benefit of the home, the disposition of
which is properly within the discretion of the commissioners as charged
by law with the ''government and intere.sts" of the home. And simi-
larly' lidd in regard to the amount of $1,000, allowed annually out of
such funds to the treasurer of the home, as a compensation for hi.s
special services and in consideration of his pecuniar^' responsibility as
a bonded officer.^ 51, 296, January, 189£. — ^
2332. Held that a medical officer of the army, occupying quarters
at the Soldiers' Home, was not thereby precluded from receiving com-
mutation of quarters at New York, on being ordered to dut}- there as
a member of a medical examining board. The quarters occupied by
him at the home are not '"public quarters'' in the sense of par. 1-1:80,
A. R. : he does not occup}' them at the expense of the United States;
and by allowing him the commutation, the Government is not put to a
double expense for his quarters. 56, 174, Octohe/% 1892.
2333. Sec. ■i818. Rev. Sts. , appropriates as one of the funds for the sup-
port of the Soldiers' Home — "all forfeitures on account of desertion".
Held that this appropriation included the retained jpay of soldiers, as
forfeited by desertion under the provisions of Sees. 1281 and 1282,
Rev. Sts., and of the act of June 16, 1890, c. 426, s. 1. The retained
pay is merely a fraction of the monthly paj^ of the soldier, earned
with the rest of his monthly pay, as a part of the entire consideration
for service rendered, but of which the payment — the right to receive —
is deferred. The theory that it is not to be regarded as earned till the
soldier's service is concluded and he receives an honorable discharge,
is rebutted by the statutory provisions above cited, and especially by
the provision of the act of 1890, which treats the retained pay as pay
constantly accruing and as a continuing deposit for the use of the sol-
^ See opinion of Attorney General to same effect, in 20 Opins. 350.
16906—01 42
658 soldiers' home.
dier drawing interest from the end of eacli year in which it accrues.
The ruling- of the Supreme Court in U. S. v. Landers (92 U. S. 77)
is not opposed to this view, but, as construed by the same court in
U. S. V. King-sley (138 IT. S. 87) shows that the "forfeiture" referred
to in Sees. 1281 and 1282, Rev. Sts., was regarded by the court as
meaning a loss of an acquired right. And the act of 1890, passed
since this ruling, has confirmed this interpretation. Thus a soldier,
in deserting, forfeits, with the main portion of his pay, the portion
which has been reta/hied, his right to this lesser portion being as much
acquired and perfected as his right to the greater portion. Both for-
feitures rest upon the same basis, and the aggregate forfeiture of both
is appropriated by the statute to the suppoi't of the Soldiers' Home.
60, 18, June, 1893; 61, 486, Octoher, 1893.
2334. A stoppage of twelve dollars was made against a soldier on
account of the loss of a revolver. Subsequently he was tried for pawn-
ing the revolver and for desertion, and sentenced to dishonorable dis-
charge, forfeiture of all pay and allowances and confinement for three
j^ears. Later the revolver was recovered. Held., that the stoppage
should be removed but that it would go to the Soldiers' Home as a
forfeiture under the sentence and could not therefore be returned to
the man. Card 15(H), July, 1895.
2335. There is no law expressly relating to the subject but the Sec-
retary of War in the exercise of his general power over the movements
of members of the .irmy, may order a hospital attendant, an enlisted
man, to accompany an invalid discharged soldier to the Soldiers' Home.
Card 2592, Septemhet\ 1896.
2336. Section 4745, Revised Statutes, should not be construed as pro-
hibiting the practice by which transportation to the Soldiers' Home is
furnished ])y it to a needy discharged soldier, with the understanding
that the home will repay itself out of his pension when collected.
This is not a pledge, etc., of his pension b}' a discharged soldier within
the meaning of Sec. 4745, but a repayment by a governmental agency
to itself out of money belonging to him and placed in his hands Ij}''
law. of money advanced 1)}^ it to him solely for his interest. Card
6922. FJrruurij, 1890.
2337. The law of the United States for the District of Columbia is
to the effect that where a person dies intestate, leaving an est:ite in
the District and there is no relation of the intestate within the fifth
degree, the estate shall belong to the United States. Undei* this law.
whenever an inmate has died in the Soldiers' Home, at Washington,
D. C, leaving money in bank in that city, or other moneys or per-
sonal efiects, in the District, the same l)econ)e the propei'ty of the
United States; and all such ])r<)pei"ty and ett'ects other than money
SOLDIEES' HOME. 659
should (by the proper proceedings in court) be converted into monej^,
and then this, tog-ether with the money left by the soldier in bank or
elsewhere in the District, should be turned into the United States
Treasury by order of court, as money of estates escheated to the
United States. Section 3689 of the United States Revised Statutes
appropriates for the Soldiers' Home "Vm/ of any moneys in the Treas-
ury, * * * all moneys belonging to the estates of deceased sol-
diers''. After, therefore, the moneys and the proceeds of the other
effects of inmates of the home, have been paid by order of court into
the United States Treasurj" as moneys of escheated estates, the Sol-
diers' Home is entitled to receive the same from the Treasury. The
home is not however entitled to it until it shall have gone into the
Treasury so that section 3689 can apply to and appropriate it to
the use of the home. It is not the duty and probably not within
the power of the Soldiers' Home to move in the matter of enforc-
ing the law with regard to the moneys or property of any estate,
whether the decedents were inmates of the home or not. But as
it is the duty of the Attorney General of the United States (through
the United States attorney of this district) to look after and collect
all moneys and propert}" the United States is entitled to under the
law. whether the decedents are inmates of the home or whether
they are civilians who reside elsewhere in the District, Advised that
he be informed b}^ the proper officials of the home of the death of all
inmates who leave an}" money or property in the district and the
whereabouts of the same, which it may be in his power to collect and
turn into the Treasury as abov^e indicated. Money so turned in should
be obtained hy the home by direct application to the Treasury for the
same. Card 3493, Septemhei\ 1897.
2338. On the questions, (1), whether the Board of Commissioners of
the Soldiers' Home has authority to establish a branch home; (2),
whether the Secretary of War has legal authority to grant to the
Soldiers' Home the right to locate a branch of the home on a military
reservation and to occup}" buildings erected for the militarj^ establish-
ment; and (3), whether, if such right were granted, the board of com-
missioners would have authorit}' to expend funds of the Soldiers'
Home in keeping such buildings in repair — Jield, tirst, that it was the
intention of the original legislation relating to the Soldiers' Home to
establish it at one or more places, and no subsequent legislation has
interfered with this, except as to one locality, and that under the legis-
lation as it now stands it would not be illegal to establish a branch;
second, that the Secretary of War has no authority independently of
congress to grant away any interests in buildings erected on military
reservations, but that he may do so under legislation of July 28, 1892
660 soldiers' home — state.
(27 Stats., 321), which vests him with authority, " when in his discre-
tion it will be for the public- good, to lease for a period not exceeding
five years, and revocable at any time, such propertj^ of the United
States under his control as may not for the time be required for public
use and for the leasing of which there is no authority under existing
law"; and third, that if the Soldiers' Home may thus lease buildings
on a military reservation, to be used as a branch, the expenditure of
funds of the home in keeping the buildings in a condition fitting them
for this purpose would be a legal expenditure notwithstanding that
the home could not, on the termination of the lease, recover any money
so expended. Card 6818, Jxdy. 1899.
SOLDIERS' HOME— STATE.
2339. By act of Congress, approved Aug. 27, 1888 (25 Stats., 450)
it is provided: ""That all States and Territories which have established,
or which shall hereafter establish, State homes for disabled soldiers
and sailors of the United States who served in the war of the Rebel-
lion, or in any previous war. who are disabled by age, disease or
otherwise, and by reason of such disa))ility are incapal)le of earning a
living, provided such disabilit}' was not incurred in service against the
United States, shall be paid for every such disabled soldier or sailor who
may be admitted and cared for in such home at the rate of one hun-
dred dollars per annum." Under this statute and the current appro-
priation (28 Stats., 955), the State or Territory establishing a home is
to be paid for caring for the persons designated, and the United States is
not concerned Avith the application of the moneys so paid. Aside from
verifying the number of inmates cared for, the general government
makes no inspections of or exercises any supervision over such State
or Territorial home. Card 2222, April, 1898.
2340. The act of Aug. 27, 1888 (25 Stats., 450), further prescribes
that the number of persons for whose care the l^tate or Territory shall
receive payment "shall be ascertained by the Board of Managers of
the National Home for Disabled Volunteer Soldiers, under such regu-
lations as it may prescribe," and the board has adopted a regulation
recognizing the right of the States to payment for insane members cared
for in insane as3^1ums. Held, that such regulation is legal and proper.
The word "home," as used in the statute, should not be narrowly con-
strued. The insane man is still a member of the homo and taken care
of in it, within the meaning of the statute, when he is sent to and
kept at an asylum at the expense of the home. There is a marked
dili'erence between the case of such insane inmate and that of an inmate
who voluntarily leaves the institution to live with others. The latter
abandons his right to the care of the home, while the former simpl}'
continues under its care. Card ;-'12l. Aj>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 auth<jrize but eighty fonr ({ayti of solitary' confinement in an entire
year. XXVIII, 329, January^ 1869.
SPY.
2346. Sec. 1343, Rev. Sts.,^ is one of the few provisions of our statute
law authorizing the trial, in time of war, of civilians., h\ military courts.
The majority, however, of the persons brought to trial as spies dur-
ing the civil war were members of the army of the enemy. The
gravamen of the offence of the spy is the treachery or deception prac-
tised — the being in disguise or acting under false pretences.^ An offi-
cer or soldier of the enemy discovered •' lurking" in or near a camp or
post of our army, disguised in the uniform or overcoat of a U. S. sol-
dier, is prima facie a spy, and liable to trial as such. XIV, 57i^, Jane.,
1865. So an officer or soldier of the enemy who without authority and
covertly penetrates within our lines disguised in the dress of a civilian^
may ordinarily be presumed to have come in the character of a spy,
unless, by satisfactory evidence that he came for some comparatively
venial purpose, as to visit his family, and not for the purpose of obtain-
ing information, he ma}" rebut the presumption against him and show
that his offence w^as a simple violation of the laws of war. II. 580,
Jwie, 1863; IV, 3(>T, 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<ld in a case in which, hy act of Congress, the
President was "authorized to reinstate" a "major, late of the United
^ This bill did not become law, but there was subseiinently J)as8ed an act author-
izing the President, in his discretion, to appoint the officer, with the concurrence of
the Senate.
STATUTE TO RESTORE DISMISSED OFFICERS. 669
States arm3% and to retire him in that grade as of the date he was pre-
vioush" mustered out" ; and remarked that such construction was espe-
cially justified in a case like the present, where — as gathered from the
reports of the committees of the two Houses, upon the reconmienda-
tion of which the act was passed — the evident intent was simply to
have reinstated in his former position an officer who had been displaced
from the same through injustice or error. ^ XLII, 196, March, 1879.
(See § ttlO, ante.)
2371. In the case referred to in the preceding section, the act (as
cited) authorized the reinstatement of the officer "as of the date he
was previously mustered out, charging him," as it was added, "with
all extra pay and allowances paid him at that time." Held that this
officer, upon his reinstatement, was entitled to the pay of a major from
the date of his muster-out (under the act of July 15, 1870), less the
extra "one year's pay and allowances" then paid him in accordance
with the provisions of sec. 12 of the same.' XLII, 192-196. March.,
1879.
2372. An act of Congress, in declaring in substance that an officer
was iinjusth' and erroneoush" mustered out of the service in eJanuary
1871, proceeded to authorize the President "to restore him to his
proper rank and promotion in the army with directions to the Secre-
tar}^ of War, on account of his disabilities incurred in the line of dutj^,
to place him on the retired list." The officer, had he not been mus-
tered out (as a captain), would have attained the rank of major on
Dec. 10, 1873. Ileld^ on construing this act in connection with the
emphatic favorable reports upon the case by committees of the two
houses of Congress, that the intent of the act clearl}^ was to reinstate
completely this officer so far as his rank was concerned, and that the
President was therefore authorized (by appointment without the con-
currence of the Senate — see § 2370, ante) to restore the officer to the
army as a major with rank from Dec. 10, 1873, and thereupon to cause
him to be placed upon the retired list as an officer of the army of this
rank. XLII, 246, April, 1879.
2373. An act of Congress required the Secretary of AVar to order a
court martial or court of inquiry "to inquire into the matter of the
dismissal " of a certain officer who had been summarily dismissed by
the President in 1863, and further empowered such court "to confirm
or annul the action" by which he was dismissed, adding that its ''find-
' See the concurring decision of the Court of Claims in this case — Collins v. United
States, 14 Ct. Cls. 568; the Solicitor General, however, in an earlier opinion (16 Opins.
At. Gen. 624) , held contra.
-This opinion was also concurred in l)y the Court of Claims in a second decision in
the same case, Collins v. United States, 15 Ct. Cls. 22. And see the similar conclusion,
as to the right to pay, of the Solicitor General, in 16 Opins. At. Gen. 624.
670 STorrAGE.
ini»s'' slioiild "■ liavo the ollcct of rcsloi-inu-" the ])iU'ty "to liis nuik
Avitli the pi-oiiiotioii to whicli he would l>(> 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, <if tlie Consti-
tution. Moreover this jjower, as interjireted by tlie authorities, pniperly extends
only to tiie appointment, by the U. S. Courts, ot their own inferior oliieers, such as
clerks, reporters, or bailiffs. See 4 Opins. At. Gen. 164; 11 id. 213; Ex parte Ilen-
iien, 13 Peters, 258; Story's Com. on the Const. § 1536.
'■'Tliis conclusioUj however, was not accepted, and the appointment was made and
conlirmed.
STOPPAGE. 671
conformitj' to the i'e<^ulation,s of the army which have the force of
law." The power of the Secretary of War over tlie ,subj(M-t of stop-
page of pay is too narrowly restricted in the opinions abo\'e (|ii()ted.
It is not possible to foresee, and by re<i-idati()ns to ])i-()vide for, all cases
which ma}' arise within the army in wliich it would be reasonable and
proper that the pay of a soldier should be stopped in order to cover
some liability which he has incurred; and on the ]ia[)penino- of any
such case it would be reasonable and proper that the Secretary of
War, representing the constitutional power of the President over the
army, should exercise the same powei- with reference to such case,
which would be exercised in the making of a general regulation i-elat-
ing to stoppages. The result would simply be the satisfaction of a
pecuniary ()])ligation to the United States, which the soldier had
incurred in his military relation, but which it had not been practica])le
to provide for in advance ])y a regulation. The practice of the War
Department is T)elieved to be in accord with this view. 61, 109, An<j>iHi.,
1893.
2375. The United States is not authorized to stop against the pa\' of
an ofHc<n- or soldier an amount of personal indebtedness to another
officer or soldier, though such indebtedness ma}' have grown out of the
relations of the military service. Thus, in the absence of a sentence
of court mai'tial forfeiting the same, an officei-'s pay cannot legally be
stopped with a view to the reimbursement of enlisted men who have
deposited with him money for safe keeping, which he has failed to
return when recjuired, the officer being accountable for the same in a
personal capacity only. XII, 510, Augunt, 1805 1 XVI, 637, Octohe'i\
1865.
2376. /7^?/''7, that for a liability incurred during one enlistment, a
soldier may under the provisions of Sec. 1766, Kev. Sts., legally be
subjected to a stoppage against the pay due him under a subsequent
enlistment. Card 3167, Mm/, 1897; 6.500, May, 1899; 7395, Decemher,
1890.
2377. A stoppage difiers from a fine or forfeiture, in that the latter
is imposed as punishment for an offence while the formei" is a means
of reimbursement or a "charge on account" to make good a loss. A
stoppage cannot therefore, in the absence of a statute or regulation
authorizing it, legally be imposed as a punishment for an offciicr. 36,
87, (>ct()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, provi<led, among other things, that the sale to
a civilian employed with the army, etc., should be "at invoice or contract prices with
10 per cent, added." It has been further amended by G. O. 118 of 1899. See A. R.
1430 of 1901.
^See A. R. 932, 933 of 1895 (1031,1032 of 1901); also Court-Mar. Manual (1901),
p. 74, par. 16.
676 SUMMARY COURT.
arrested on Saturday, that the court did not, b}' not sitting on Sunday,
lose jurisdiction; and therefore that it is not necessary that a summary
court should ever .sit on a Sunday.^ 51, 151, Decemhei\ 1891.
2396. The provision in the act in regard to the trial being had
within twenty-four hours of the arrest being directory only, a trial
held after that time is entirely valid. Thus, where a soldier, by reason
of drunkenness or otherwise, is not in a condition to l)e tried within
that time, his trial may be postponed till he is in proper condition. 64,
108, Marcli.lSdl^.
2397. Held that the provision of the O-lth Article of War, relating
to the hours of cession of courts martial, was not applicable to sum-
mary courts. 54, 301:, July., 189]^..
2398. The procedure of the sunmiary court should be similar to that
of the older courts martial. The charges and specifications should be
read to the accused, and he be required to plead guilty or not guilty,
and the witnesses should be sworn. But the testimony is not set forth
in the record. '^ 44, 13, 17, Novemher, 1890.
2399. The act of 1890, in providing that the trial officer "shall have
power to administer oaths," has reference to the oaths of witnesses.
The officer himself is not sworn. But the witnesses must be sworn ;
and, in a case in which it appeared that they were not in fact sworn,
held that the proceedings and sentence were invalidated, and that a
forfeiture imposed was illegall}^ charged against the accused, who
should be credited with the amount of the same on the next muster-
and-paj^ roll. But the record need not state in terms that the wit-
nesses were sworn; it will be presumed that the law has been complied
with unless the contrary appears, 48, 7, June., 1891; 53, 301, Mc/i/., 1892.
2400. A summary court is not empowered to issue process of attach-
ment to compel the attendance of a civilian witness. 51, 468, Ju/ie,
1892.
2401. For a summary court to impose a forfeiture of ten dollars,
when the soldier is receiving only nine dollars a month because of the
retention of four dollars under the act of June 16, 1890, is not in
excess of authority.'' The true monthly pay is thirteen dollars. The
retention does not affect the amount of the pay but simply the time of
payment. 44, 288, December., 1890.
2402. A summary court is not empowered to impose a sentence of
dishonorable 'discharge. Such punishment is not in terms authorized,
'See Circ. No. 2, A. G. O., 1891; do. of 1892. The present summary court act,
approved June 18, 1898, directs that the accused "shall be brought to trial within
twenty-four hours of the time of the arrest, or as soon thereafter as practicable."
'' As to the procedure and form of record of summary courts, see Court-Mar. Manual
(1901), pp. 73-75 and 148"
^See now 83d Article of War, as amended ^farch 2, 1901, set out in note 1, page 72,
ante.
SUMMARY COUKT. 677
by Art. S3, to be adjudoed b}- regimental or o-arrison courts, and it is
restricted to general courts martial b}^ the -ith Article of War. 46
402, A2)rU, 1891; Card 350, September, 1891^.
2403. By the act of July 27, 1892, c. 272, s. 5, "commanding offi-
cers authorized to approve the sentences of summary courts" are
empowered to "remit or mitigate the same.'' Held that where a sol-
dier, who had been convicted bv a summary court, had passed into
another command, so that the officer who approved his sentence was
no longer his commanding officer, such officer could not legally exer-
cise the power of remission or mitigation of the sentence.^ 63, 337,
January, 1891^..
2404. General courts martial have exclusive jurisdiction to try
offences punishal^le capitally. A trial therefore by a summary court
for a violation of the 21st Article of War or for desertion in time of
War, would be void, and the sentence adjudged should be set aside as
such. Cards 6186, April, 1899; 7302, Becemher, 1899.
2405. The Summary Court Act of June 18, 1898, provides, inter alia:
"That the commanding officer of each garrison, fort, or other place,
regiment or corps, detached battalion, or company, or other detach-
ment in the army, shall have power to appoint for such place or com-
mand, or in his discretion for each battalion thereof, a summary court
to consist of one officer to be designated l)v him," for the trial of enlisted
men, and "that when but one commissioned officer is present with a
command, he shall hear and finally determine such cases ". This was
intended to provide for the trial of enlisted men under all conditions
of service. Held, therefore, that the surgeon in command of the
Army and Nav}^ General Hospital, Hot Springs, Ark., being an officer
of the army, has authorit}" under this act to appoint a summary court
for the trial of enlisted men of the ami}' under his command. Card
856, Fehruary, 1900. And held, that if the U. S. general hospital at
Fort Myer. Va., and at Fort McPherson, Ga., were not included in the
command of the respective post commanders, the surgeons command-
ing the hospitals would be competent under the act cited to appoint
summary courts. Cards 4826, August, 1898; 5713, Fehruary, 1899.
Held, also, where the division tield hospital and the division field ambu-
lance company were independent commands and responsible direct to
the division surgeon and division commander, that their respective
commanders were competent to appoint summar}- courts for the same.^
Card 4966, Octobei\ 1898. And the surgeon in command of a LT. S.
* The summary court referred to in this and preceding paragraphs is the summary-
court established by the act of Aug. 1, 1890. An examination of the present Sum-
mary Court Act of June 18, 1898, will show however that the opinions are applicable;
to the latter act.
2 See Circ. 49, A. G. O., 1S9S.
678 SUSPENSION.
hospital ship is a commanding officer within the meaning of the Sum-
maiy Court Act and ma}" appoint such court for the trial of enlisted
men on such ship. Card 4931, Septemher^ 1898.
2406. Ildd, that the summary court is a court martial within the
meaning of the acts making appropriation "for expenses of courts
martial, * * * and compensation of witnesses, * * * attend-
ing the same." The summary court officer would make the necessarj''
certificate as to the fact of attendance in the case of a civilian witness
and administer the oath respecting his expense account. Card 7890,
April, 1900.
SUPERNUMERARY LIST.
2407. IleJd^ that it was clearly contemplated by sec. 12, act of
July 16, 1870, c. 29-1, that the President, though not absolutely in
terms required to transfer officers to the supernumerary list prior to
January 1, 1871, would in fact do so, so that all the officers classed as
supernumerary would be equally eligible to appointment to vacancies
occurring prior to said date; preference onl}" being given to those of
superior rank, length of service and fitness. 8o, advised that the case
of an apparently meritorious officer who was placed on the supernumer-
ary list and mustered out on one and the same date, January 1, 1871,
and thus deprived of all claim or opportunity to be so appointed, was
not equitably disposed of, and for this reason would commend itself
to the favorable consideration of Congress in connection with an appli-
cation on the part of the officer for relief and restoration. XXXIX,
570, June, 1878.
SUSPENSION.
2408. The punishment of suspension, as imposed by sentence, is
usually in the form of a suspension from rank or from command' for
a stated term, sometimes accompanied by a suspension from pay for
the same period. Suspension from rank includes suspension from
command.^ VII, 8, January, 180 Jf..
2409. A suspension from rank does not affect the right of the officer
to his office. He retains the same as before, and, as an officer, remains
subject as before to military control as well as to the jurisdiction of a
court martial for any military" offence committed pending the term of
suspension.^ XXX, 1.57, ]\farch, 1870; XXXVII, 536, May, 1876;
XXXVIII, 221, Augmi, 1876; XXXIX, 410, February. 1878.
2410. The effect of a suspension from rank (beside detaching the
^ McNaghten, Annotations of the Mutiny Act, p. 17, el seq.
2 See 5 Opins. At. Gen. 740; 6 id 715.
SUSPENSION. 679
officer from the performance of the duties incident to his rank) is to
deprive him of any right i<d jyromotion to a vacanc}^ in a higher grade,
occurring pending the term of suspension and which he would have
been entitled to receive by virtue of seniority had he not been sus-
pended; such right accruing to the officer next in rank. VII, 8,
Janmry, 186 J^; XXVIII, 164, October, 1S6S; XXXVII, 536, 3fay,
1876.
2411. Suspension from rank does not, however, deprive the officer of
the right to rise in files in his grade, upon the promotion, for example,
of the senior officer of such grade. The number of an officer in the
list of his grade is not an incident of his rank but of his appointment
to office as conferred and dated, and— as we have seen — suspension
does not affect the ojfice. Moreover loss of files is a continuing pun-
{i<hme)it, and if held to be involved in suspension from rank, the result
would be that, for an indefinite period after the term of suspension
had expired, the officer would remain under punishment, the sentence
imposed by the court being thus added to in execution, contrary to a
well known principle of military law. XXXIII, 69, 109, June^ 1872.
2412. It is further the effect of a suspension from rank that the
officer loses for the time the minor rights and privileges of priority
and precedence annexed to rank or command. Among these is the
right to select quarters relatively to other officers. And where quar-
ters are to be selected by several officers, one of whom is under sentence
of suspension from rank, the suspended officer necessarily has the last
choice. Or rather he has no choice, but cfuarters are assigned him by
the commander; for, being still an officer of the army, though without
rank, he is entitled to some quarters. But advised that an officer sen-
tenced to be suspended from rank could not, because of such suspension
alone, be deprived of quarters previously duly selected and occupied
at the time of the suspension; such a sentence not affecting a right pre-
viously accrued and vested.^ XXVII, 241, Septemher, 1868; XXIX,
672, February, 1870; XXXVII, 536, 2fay, 1876; 50, 371, November,
1891.
2413. Under existing usage (1892), an officer suspended by sentence
from rank and command is deemed entitled to retain his quarters. But
such rule may, in some cases, work a considerable inconvenience as
well as prejudice to discipline. As where, for example, the suspended
officer is ;i post commander, and continues, pending the term of his sust
pension and while another officer has succeeded him as commander, to
occup3^ the proper commanding officer's quarters. An army regula-
' But the Secretary of War decided, May 27, 1876, that an officer under su^iension
18 not deprived of his usual right to quarters according to rank. This was reaffirmed
by the AVar Department in 1892. See oar. VII, Circ. 1, A. G. O., 1892.
680 SUSPENSION.
tion, prescribing- that an officer in .such a status shall not be entitled to
retain, or to select, quarters b}" virtue of rank, but shall have assigned
him an}' quarters that are availal)le at his late station, or elsewhere —
advh-ed as desirable to be adopted. 53, 322, Ifay, 1892.
2414. Suspension from rank does not involve a status of confinement
or arrest. VII, 242, Fehruary., 186 Jf.. In sentencing an officer to be
suspended from rank, it. is indeed not unusual for the court to require
that he be confined during- the term of suspension to his proper sta-
tion, or that of his regiment, &c., /. <?., that the sentence be executed
there. Where this is not done, — while the suspended officer is not
entitled to a leave of absence, it cannot aflect the execution of his sen-
tence to grant him one, and leaves of absence are not unfrequently
granted under such circumstances. XXXVI, 226, Fehruary^ 1875.
2415. Suspension from rank or command does not involve a loss or
authorize a stoppage of pay for the period of suspension.^ Pay can-
not be forfeited by implication. Unless therefore the sentence
imposes a suspension from rank (or command) '"'' andjjay,'''' or in terms
to that effect, thfi suspended officer remains as much entitled to his pay
as if he had not been suspended at all, and to require him to forfeit
any pay would be addiiKj to the punishment and illegal. XXIII, •427,
April, 1867; XXVIII, 164, October. 1868 ; 62, Z^Q, Mvember, 1893.
2416. A sentence "to be suspended from the Military Academ}^"
in the case of a cadet, does not deprive him of pay during the term of
the suspension. XXIII, 427, April, 1867. Nor does a commutation
of dismissal to suspension aflect pay. Thus where a sentence of dis-
missal of a cadet was conmiuted to suspension for one 3'ear, held that
he was entitled to full pay during the year of suspension." 62, 340,
Novemhet\ 1893; Card 3226, May. 1897.
2417. Where, however, the suspension is in terms extended hy the
sentence to pay., the pa}^ is forfeited absolutely, not merelv withheld.
And all the pav is forfeited, unless otherwise expressly indicated in
the sentence. XXIII, .556, Jidy, 1867. The forfeiture, imposed by a
sentence of suspension from rank (or command) and pay for a desig-
nated term, is a forfeiture of the pay of that specific term, the suspen-
sion of the rank and that of the pay being coincident. Under such a
sentence the officer cannot legally" W deprived of pay due for a period
prior to the suspension. XXII, 113, May^ 1866. Where an officer
was sentenced to suspension from rank and pay for three months, held
that his entire pay for those months was absolutely forfeited, notwith-
standing that the pay of officers of his grade was increased by statute
pending the term. XXIV, 462, April, 1867.
2418. A sentence of suspension from rank and pay does not affect
'See 4 Opins. At. Gen. 444; (5 /(/. 20:^.
^See, sustaining this opinion, Conrad r. U. S., 32 Ct. CIs., i;59-146.
SUSPENSION. 681
the right of the officer to the allowances which are no part of his pay,^
as the allowance for rent of quarters, as also the allowance for fuel.^
XXIX, CT3, February, 1872; XXXYIIl, 426, January, 1877.
2419. The status of an officer under suspension is the same whether
such suspension has been imposed directly by sentence or by way of
commutation of a more severe punishment. Thus where a sentence
of dismissal was commuted to suspension from rank on half pay for
one year, heldih^it the officer, while forfeiting the rights and priA-ileges
of rank and command during such term, was ^^et amenable to trial by
court martial for a military oflfence committed pending the same.
XXXVIII, 221, January, 1877.
2420. Where an officer, when under a sentence of suspension, is
ordered b}^ the commander who approved the sentence, or some higher
competent authority, to resume his command or the performance of
his regular military duty, such order will in general operate as a con-
structive remission of the punishment and thus terminate the suspen-
sion;^ but allowing an officer while under suspension to perform
certain slight duties in closing his accounts with the United States
would not have such effect, XXXVII, 190, Decemher., 1875.
2421. A sentence of suspension from duty and pay for fifteen days
does not imply confinement to quarters, or involve a condition of arrest.
It is customar}^ for an officer undergoing sentence of suspension from
pa}^ and duty to be allowed the limits of his command. VII. 242 Feh-
Tuary^ 186If,.
2422. Where a sentence suspended an officer "from the service for
the term of six months," hdd^ in view of the general principle that
pay may not l)e forfeited by implication, that such sentence could not
properly be construed as intending a forfeiture of pay, but should be
regarded as imposing a suspension from rank, promotion, and com-
mand onh"; that a larger meaning should not be ascribed to its lan-
guage merely because it was expressed in general terms.* XXIII,
427, Aiyril, 1867.
2423. Like dismissal, suspension takes effect upon and from notice
of the approval of the sentence officially communicated to the officer,"
1 McNaghten, 27.
^And, on the same principle, the later an'' existing privilege of pnrehasing fuel at
a reduced rate would not be affected.
^'^ee INlcNaghten, 22.
* The forms, ' ' to be suspended from service ' ' and ' ' from duty, ' ' are rarely employed
in tile military service. The form, "to be suspended from rank and duty," occurs,
however, in G. C. M. 0. 19, A. G. O. of 1885. Suspension /co/h duty, as distinguished
from suspension from rank, is a recognized punishment in the naval service. Navy
Kegulations, Art. 82, sec. 2; Ilarwood, 134-5.
^Suspension, as a punishment for a iwn-commissioned officer, is not authorized in
terms in Art. 101, nor is it contemplated in the Army Regulations. It has been
adjudged in but rare cases, and cannot be regarded as sanctioned by i>rinciple 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 ^<?/' anmirn, prescribed
thereby. 1 L., 217, April, 1886.
2433. The Mackinac National Park was established by the act of
Congress of March 3, 1875, which also authorized the Secretary of
War to grant leases, for building purposes, of certain small parcels of
land within the park. Under this authority a number of parcels were
leased upon which improvements were made by the lessees, and the
State authorities have proceeded to impose taxes upon such improve-
ments. By the act of Congress of June 15, 1886, authorizing the
admission of the State, lands of the United States within the State
were to be exempted from taxation. But the State has never ceded to
the United States exclusive jurisdiction over the lands of this park,
and therefore never parted with its authority to tax private property
located therein. Held that the improvements referred to were legally
taxable as the private property of individuals under the laws of the
State. 39, 89, February, 1890.
2434. Under the act of Congress admitting California as a State —
act of September 9, 1850, c. 50— and under subsequent statutes enacted
by the State Legislature, all land of the United States, and all build-
ings and improvements belonging to the United States, within that
State, are exempted from taxation b}^ the State. ^ LIV, 189, August.,
1887.
2435. In ceding to the United States exclusive jurisdiction over a
militarj'^ reservation, the act of the legislature of the State need not
'The "canteen," referred to in this and the two preceding sections, was not the
same as the " post exchange" which is maintained under existing regulations (1900).
See opinion. Court of Chiims, quoted in note to § 2014, ante.
^See People v. Morrison, 22 Cai., 74.
686 TAX.
specificall}" relinquish the right to tax, as the State independently of
any act of cession has no right to tax the means or instrumentalities
whereby the government of the United States performs its functions.
64, 330, Api'U, 1894. -^.nd this includes and applies to a municipality
within the State, as being a part of the State and created b}^ it. So
held, that a tax levied by the city of Butfalo, N. Y. , on the lands of
the Fort Porter military reservation, for non-pa3'ment of assessments,
or otherwise, was wholly illegal and void. 31, 480, April, 1889.
Smiilarly held, that the city authorities of Highland Park, Illinois, were
not empowered to lev}^ on the Fort Sheridan reservation for the
improvement of adjacent lands or for other public improvements. 38,
183, January, 1890.
2436. Certain land was conveyed to the United States by the City of
St. Paul, Minn., in 1892, for the erection thereon of a quartermaster
and commissary depot, an appropriation having been made by Con-
gress for the purpose on condition that the land should be conveyed
to the United States free of cost. Held, that the propert}' is an
instrumentalit}^ of the United States government, and as such is not
subject to local taxation of any kind, and therefore not subject to
an assessment for street improvements. This principle declared by
Chief Justice Marshall in McCuUoch v. Maryland (4 Wheaton, 315)
has been applied in a large number of later cases (25 Am. and Eng.
Enc. of Law, 106, et S(Mj.), and can no longer be questioned.* Card
2598, September, 1896. Similarly held, with respect to assessments,
under State legislation and municipal ordinance, for the improvement
of street and side walks adjacent to the military reservation of Jackson
Barracks, Louisiana. Card 2637, Sepjtemher, 1896. And Jteld, that a
tax on real estate purchases under the laws of Tennessee would not be
operative against the United States as purchaser of lands in that State
for the Shiloh National Military Park. Card 3062, April, 1897. Also
held that the United States was not liable for an assessment for laying
water pipes along the east side of the National Cemeter3% Philadelphia,
^The Comptroller of the Treasury, in an opinion dated January 30, 1896 (Vol. II,
375), said: " It is well established law that the property of the United States, or any
of the instrumentalities employed l)y them in tlie performance of their proper func-
tions, is not the subject of taxation by the States or any subdivisions thereof. (Mc-
CuUoch V. Maryland, 4 Wheat., 316; Osborn v. Bank of the United States, 9 Wheat.,
738; Weston v. Charleston, 2 Pet. 449; Dobbins v. Commissioners, 16 Pet. 435; Bank
of Commerce v. New York City, 2 Black, 620; Bank Tax Case, 2 Wall., 200. ) INIost
of these cases related to the taxation of instrumentalities adopted bj' the United
States for the proper execution of the powers vested in the Federal government.
The principle has been specifically applied to the taxation of the property of the
United States (9 Opin. A. G., 291), has been acquiesced in by the courts of all the
States in which the question has arisen (Andrews r. Auditor, 28 Grattan, 115; Chi-
cago, etc., Railway Company r. City of Davenport, 51 Iowa, 451), and has also been
specifically applied to assessments for ])ul)lic works from which specific benefits
would be derived (Fagan v. Chicago, 84 111., 227)."
TRIAL. 687
Pa. (Card 3930, March,, 1898), or for a "consumption tax" levied on
sugar purchased in Porto Rico for the use of United States troops.
Card 6054, Ifarch, 1899. Nor is the post exchange, as a recognized
instrumentality of the government of the United States (see note to
§ 2014, ante), liable for local or nmnicipal taxes or licenses on the sale
of commodities for the exclusive use of persons in the military service.
Card 7324, Noveviber, 1899.
TERRITORY.
2437. The officers and soldiers of the army within a Terr tory are
subject to its criminal laws equally with its citizens, except where the
enforcement of such laws would obstruct the operations of the United
States. 51, 199, January, 1892.
2438. The military should obey the subpoenas of the district courts
of Territories, which, under Sec. 1910, Rev. Sts., are vested, in all
cases arising under the Constitution and laws of the United States,
with the same jurisdiction as the U. S. circuit and district courts.
Sees. 877 and 911, Rev. Sts., prescribe as to the form and effect of
such subpoenas, and where a subpoena served upon an officer or soldier
conforms substantially with these forms, it should be complied with.
LIV, 124, July, 1887.
2439. A Territorial statute is operative upon a military reservation
within the Territory, so long as it does not conflict with the laws of
the United States, or with the militar}" administration or legitimate
operations of the Government. Thus, held that a statute of Arizona,
making it penal to sell intoxicating liquor to Indians, while it would
inhibit a post canteen from selling beer (if intoxicating) to Indians
in general, could not legally affect the sale of such beer to Indians who
were enlisted soldiers of the United States and therefore within the
regulations of the army allowing such sale to soldiers under certain
conditions. 1 48, 464, August, 1891.
TRIAL.
2440. Except by the authority of express statute, an accused can
never be entitled to be tried by court martial. Where he is amenable
to trial, the Government ma}' cause him to be tried or may waive a
trial, at discretion. 65, 259, June, 1891,..
^See U. S. v. Hurshman (53 Fed. Rep., 543), in which it was held that an Indian
of the Nez Perces tribe, a soldier in the United States Army, was an Indian under
the charge of an Indian superintendent or agent within the meaning of Sec. 2139,
Rev. Sts., which provides that every person who disposes of spirituous liquors to
any Indian ' ' under the charge of any Indian superintendent or agent * * * shall
be punishable * * * ."
688 VARIANCE.
2441. The fact that an accused soldier was tried with hands or feet
in shackles, or with ])all-and-chain attached, these having been omitted
to be removed during the hearing before the court, does not, however
reprehensible, affect the legal validity of the proceedings or sentence.
L, 33, Ftbnumj, 1886; LIU, 196, October, 1886; LV, 686, July, 1888.
u.
U. S. COMMISSIONER.
2442. Where a U. S. commissioner in Indiana issued to a U. S.
marshal a warrant for the arrest of a deserter from the army, and,
upon such deserter being brought before him, adjudicated the ques-
tion of his right to discharge from the military service, and ordered
him discharged therefrom — held that the entire proceeding was coram
non pidice and a gross assumption and exceeding of authority, and
adtrised that the facts of the case be communicated to the Attorney
General for his action, and that the deserter be forthwith re-arrested
and brought to trial by court martial. 58, 287, March, 1893.
V.
VARIANCE.
2443. A material variance between the name of the accused in the
specification and in the sentence should, if possible, be corrected by a
re-assembling of the court for a revision of its sentence. If this be
rendered impracticable by the exigencies of the service, the sentence
should in general be disapproved as fatally defective. Thus held, in a
case where the names in the sentence and the specification were
entirely different, the one being John Moore and the other James
Cunningham (XVII, 601, February, 1866); also in cases in which,
while the surnames were the same, the christian names were quite
different, one being George and the other William, &c. (IX, 27, 134,
May, 1864)\ also in a case where the name in the sentence, though
similar to that in the specification was not ide77i sonans, as whore the
accused was arraigned upon charges in which he was designated as
Woodworth, but was sentenced under the name of Woodman. II, 555,
VOLUNTEEKS. 689
June^ 1863. A difference, however, in a middle initial is not a material
variance, a middle name not being an essential part of the christian
name in law/ XIII, 481, March, 1865,- Card 9066, October, 1900.
VOLUNTEERS.
2444. The volunteer force during the civil war was not a part of the
militia, but of the army of the United States. Though assimilated to
the militia in some respects, as, for example, in the mode of original
appointment of regimental and company officers, it was as distinct in
law from the militia, as was the so-called '"regular" contingent of the
army.' Volunteer officers, once mustered into the service of the
United States, and while the}^ remained in that service, did not differ
substantialh' from regular officers in their status, rights, or otherwise.
Their tenure of office was indeed briefer: this, however, was not a
material legal distinction, since the term of regular officers was also in
some cases limited by statute to a definite period — as the duration of
the existing war. XXXIV, 459, Septmiber, 1873.
2445. In a case of a volunteer officer unjustly dismissed b}" sentence
or order during the civil war, and applying for restoration, there is
the obstacle (not encountered in a case of a regular officer) that the
volunteer contingent of the army has been long since disbanded, so
that a restoration to office in the same is impracticable. And as a dis-
missed officer cannot of course be granted an honorable discharge from
the army without first being readmitted to the army by a new appoint-
ment, and a volunteer officer cannot as such be so readmitted, advised,
in a case of a volunteer officer applying for relief on account of an
unjust dismissal, that the form of relief most apposite to his case
would be a special enactment giving him j)ay from the date of his dis-
missal — reciting that the same was based upon insufficient grounds —
to the date of the final muster-out of his regiment, precisely as if he
had continued regularly in the service during the interval. XLIII,
285. Frhraari/, 1880.
2446. Officers of volunteers, or officers holding office in the army of
a limited tenure, who, without change of rank, were incorporated into
'That the law "recoprnizes but one christian name," and that the insertion or
oniissioii of a middle initial or initials "will have no effect in rendering any proceed-
ing defective in point of law," see 2 Opins. At. Gen., 332; 3 id. 467; also tVanklinv.
Tallmadge, 5 Johns., 84; Roosevelt c. Gardinier, 2 Cow., 463; State v. Webster, 30
Ark., 16S.
^As illustrating the distinction made in Sec. 8, Art. I, of the Constitution, between
the army and militia, and indicating the status of the volunteers, during the civil
war, as a i>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<S, lldqrs. of Army, 187(5.
WITNESS. 697
manding or superior officer in general authorized to place any obstacles
in the way of the prompt attendance, as a witness, of an inferior duly
summoned or ordered to attend as such/ XXXIII, 100, Jimt\ 1872;
XLIII, 341, June, 1880.
2468. In military law an accused party cannot ])e deemed to ])e enti-
tled to have a witness summoned from a distance whose military or
administrative duties are of such a chai-acter that they cannot be left
without serious prejudice to the public interests. Art. VI of the
Amendments to the Constitution, declaring that the accused shall be
entitled '"to be confronted with the witnesses against him," applies
only to cases before the United States courts.^ Thus where the offence
charged is not capital, and a deposition may therefore legally be taken
under the 91st Article of War, the Secretary of War will not in gen-
eral authorize the personal attendance at the place of trial of a wit-
ness whose office or dutv makes it necessary or most important that he
should remain elsewhere. XIX, 35, October, 1865; XXXVIII, 141,
July, 1876.
2469. An accused party at a militar}^ trial can rarely be entitled to
demand the attendance, as a witness, of a chief of a staff corps, much
less that of the President or Secretary of War, — especially as some
minor official can almost invariably furnish the desired facts. If,
however, the testimony of one of these officials be found to be neces-
sary or most desirable, and the same cannot legally be taken by depo-
sition, the court, if convened at a distance, may properly be adjoured
to Washington or other convenient point, in order that the witness
may be enabled to attend without detriment to the public interests.
XXXIX, 517, AprR, 1878. (See § 257, ante.)
2470. A summons ma}' legally be served either by a military or a
civil person,^ but will in general preferably be served by an officer or
non-commissioned officer of the army. A judge-advocate, or a com-
manding or other officer to whom a summons is sent for service, will
not be authorized, b}^ employing for the purpose a U. S. marshal or
deputy marshal, or other civil official, to commit the United States to
the payment of fees to such official. XLIII, 284, Apr!!, 1880. The
action, however, of a judge-advocate in employing a deputy marshal to
serve a summons, where apparently the service could not otherwise be
so effectually or economicall}' made, has in a few cases been so far rati-
fied by the Secretary of War as to allow, out of the appropriation for
army contingencies, the payment of a small and reasonable account of
charges rendered l)v such official. XXXVII, 570, 2lai/, 1876.
1 See G. C. M. 0. 18, Dept. of the Platte, 1877.
''See note to § 2313, ante.
'See G. O. 93. Hdqrs. of Armv, 1868.
698 WITNESS.
2471. Thoro is no foe or coniixMisiition established or authorized to
be paid, by statute or regulation, for the service of subixenas for the
attendanc(> 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 subp<ena.« to the witnesses on both sides, and it is the better
practice for the judge-advocate to cause such to be served in each instance, particu-
larly in the case of civilian witnesses.
^ The authority being vested exclusively and independently in the judge-advocate,
cannot be exercised by the ffnid. The attachment is thus not a writ or process of
the rourt, but simply a compulsory instrumentality placed at the disposition of the
judge-advocate as the prosecuting ofhcial representing the United States.
700 WITNESS.
before a commissioner or other person and give his deposition.
XXXVI, 152, December, 187 1^.
2481. A judge -advocate cannot properly direct an attachment to a
U. S. marshal or deputy marshal or other civil official. (See § 2470,
ante.) Some militar}^ officer or person should be designated l)y him,
or detailed for the purpose by superior authority.^ XXVIl, 147,
August, 1868. In executing the attachment, the needful force may be
employed. XI, 234, December, 186Jf..
2482. The authority of a court martial to punish as for a contempt,
being confined b}" the code (Art. 86) to cases of acts of menace or
disorder committed in its presence, such a court would not be empow-
ered to punish, as being in contempt, a witness appearing before it,
whose attendance it had been necessary to compel by process of attach-
ment.- IX, 208, 278, June, 186^; XXI, 215, February. 1866.
2483. The compensation allowed by the Secretary of War for wit-
nesses summoned as experts in handwriting before a court martial (see
Smith v. U. S., 24 Ct. Cls. ^09)— held payable out of the annual appro-
priation "for compensation of witnesses attending upon courts martial
and courts of inquiry." 49, 187, September, 189.1.
2484. Held that duly attending by a civilian witness before a duly
authorized official to give a deposition, to be used in evidence on a
military trial, was to be regarded as practically equivalent to attending
a court martial, and that the deponent was entitled to be paid the usual
allowances {i. e., the same as those of witnesses appearing before the
court) out of the regular appropriation for the ""compensation of wit-
nesses attending before courts martial,"^ &c. 51, 468, January, 1892.
^ Upon the subject of the execution of process of attachment in miUtary cases, see
the opinion of the Atty. Gen. in 12 Opins., 501; also the directions — based upon the
same— of G. 0. 93, Hdqrs. of Army, 1868.
Prior to the adoption of the Constitution, Congress (then the Government) appears
to have relied upon the State authorities for the necessary process to compel the
attendance of witnesses before military courts. See Resolution of Nov. 16, 1779 — III
Journals of Congress, 392. In the British law, by a provision first incorporated in
the Mutiny Act in the year 1800, witnesses neglecting to comply with a summons
requiring their presence at such courts, are made "liable to be attached in the Court
of Queen's Bench," &c. This provision well illustrates the close connection between
executive and the other governmental powers in the British Constitution, where the
Sovereign is a part of the Judiciary as well as of the Legislature. The fact of the
express distinction and separation of the three powers in our own organic law, one
result of which has been to leave courts martial, as agencies of the executive power,
quite independent of any review or control on the part of the U. S. courts (see
§ 992, ante) , has also no doubt availed to preclude the devolving upon the Federal
tribunals of a power, fitly conferred in the foreign statute, but which, with us, would
be exceptional and out of harmony with our constitutional system.
It may be added, in regard to the exercise of the authority to issue compulsory
process, as vested in judge-advocates by the act of 1863 (Sec. 1202, Rev. Sts.), that
the occasions of such exercise have«ot been frequent in practice, and no case is known
in which such authority has been abused.
'•^But by sec. 1 of the act of March 2, 1901, "to prevent the failure of military jus-
tice," &c., provision is made for the punishment by civil authority of civilians I'efus-
ing to appear or testify before general courts martial.
^SeeCirc. 9, A. G. 0., 1883.
WITNESS. 701
2485. IlJd that the annual appropriation by Congress for the com-
pensation of witnesses attending before courts martial was evidently
based upon the understanding that such compensation, not being pre-
scribed by statute, was one left to be fixed by the Secretary of War
(the authority charged with the expenditure of the appropriation), and
was indeed that which had been so fixed and published in army regu-
lations. Thus the appropriation, made as it is from year to year, is to
be regarded as made in knowledge and recognition of the rates of com-
pensation as established b}^ such regulations. Sec. 848, Rev. Sts.,
prescribing witness' fees, and constituting a part of the chapter entitled
"The Judiciary,'' has reference to such fees in the Federal civil
courts onh', and has no application whatever to courts martial, which
are no part of the judiciary of the United States.^ 57, 490, February^
1893.
2486. Neither the appropriation "for the compensation of witnesses"
attending military courts, nor the appropriation for the contingent
expenses of the army, is applicable to the pa3mient of allowances, as
witnesses before civil courts, of oflicers or soldiers of the army or of
civil employes of the military establishment. For such allowances
they must look to the laws and appropriations fixing and authorizing
the pa3'ment of witness fees in these courts.^ 55, 471, and 56, 97,
Odoher, 1892; Cards 5335, Novemher, 1898; 7540, January, 1900.
' For the existing regulations on the subject of witnesses, see "Attendance of Wit-
nesses," "Fees of Witnesses," and "Examination of Witnesses," Court-Martial
Manual (1901), pp. 33-43.
*If, however, it is absolutely necessary to furnish them transportation in kind to
enable them to appear, as witnesses for the Government, before a civil court of the
United States, an account of such expenditure, together with the evidence that they
were properly subpcenaed and did attend the court, will be forwarded to the War
Department for presentation to the Department of Justice. Officers providing such
transportation will notify the court, or the marshal thereof, that it was furnished to
enable the witnesses to perform the requisite journeys in obedience to the summons.
A. R., 72, edition of 1895.
a.pi^e:n^dix ^,
KEMARKS ON THE ARMY REGULATIONS AND EXECUTIVE
REGULATIONS IN GENERAL, BY G. NORMAN LIEBER,
JUDGE-ADVOCATE GENERAL, U. S. ARMY, 1898.
Page.
Chap. I. Classification and Source of Authority of Army Regulations 703
II. Executive Regulations in General 713
III. Approval of Regulations by Congress 730
IV. The Different Editions of Army Regulations 735
V. The Interpretation and Construction of Regulations 749
CHAPTER I.
CLASSIFICATION AND SOURCE OF AUTHORITY OF ARMY
REGULATIONS.
The words regulate and regulation are used in several places in the
Constitution of the United States. Thus, Congress has power to
'"regulate" commerce, to "regulate" the value of mone\^, to make
rules for the government and "regulation" of the land and naval
forces, to make "regulations" with regard to the elections of Sena-
tors and Representatives, to make ""regulations" with reference to the
jurisdiction of the Supreme Court in certain cases, and to make need-
ful rules and "'regulations" respecting the territor}" and other prop-
erty of the United States. In all these cases regulation is legislation.
B}' virtue of its power to make rules and regulations for the land
and naval forces. Congress covers a large field of legislation relating
to the administration of military affairs. When this is done, there,
however, remains a mass of matters appertaining to the military estab-
lishment, which it is necessary to "regulate." Legislation can not
703
704 CLASSIFICATION, ETC., OF AK]VrY REGULATIONS.
enter into all the details of this regulation, and, if it could, it would
not be desirable, because a leg-islative code, controlling- the whole sub-
ject "of military administration, would not have the necessar}" elas-
ticity-. The Constitution provides a wa}' of supplementing this power
of Congress, the President, as executive and commander-in-chief of
the Army, having the power to make regulations for its government.^
The regulations for the transaction of the public duties and business
relating to the military establishment, adopted by the President in the
exercise of this power, are designated as the Army Regulations. They
may be divided into several classes, viz:
1. Those which have received the sanction of Congress. These can-
not be altered, nor can exceptions to them be made, by the executive
authority, unless the regulations themselves provide for it. In reality,
the approval of Congress makes them legislative regulations, and they
might therefore be more strictly classilied with other statutory regu-
lations with reference to subjects of military administration. They
are, however, included under the general head of army regulations,
as approved codes of executive regulations. Examples of regulations
having this sanction are gvv&npost.
2. Those that are made pursuant to, or in execution of, a statute —
meaning by the latter expression, those that are supplemental to par-
ticular statutes, and, in the absence of sufficient legislative regulation,
prescribe means for carrying them out. These, if it be not prohibited
by the statute, may be modified by the executive authority," but imtil
this is done they are binding as well on the authority that made them
as on others. It has been held that a regulation of the Treasury"
Department, made in pursuance of an act of Congress, "becomes a
part of the law, and of as binding force as if incorporated in the body
of the act itself."^ So it has been held that the civil service rules, pro-
mulgated under the Civil Service Act, "became a part of the law,"
and that removal from a position placed under the act and the rules
can only be made agreeably to the terms and provisions of both the
^ "■Regulations are administrative rules or directions as distinguished from enact-
ments. They exist in all the Executive Departments and are of very material
service in the efficient administration of the Government. Armi/ regulations are
authoritative directions as to the details of military duty and disciiiline. The author-
ity for Army rejiulations is to l)e found in the distinctive functions of the President
as commander-in-chief and as f^xecutive. Ilis function as commander-in-chief
authorizes him to issue, i)ersonally or through his military subordinates, such orders
and directions as are necessary and proper to insure order and discipHne in the Army.
His function as Executive empowers him, personally or through the Secretary of
War, to prescril)e rules, where reiinisite, for the due execution of the statutes relat-
ing to the mihtary establishment." ( \Vinthro])'s Abridgment of Military Law, p. 8.)
■^ "The power to establish imjilies, ni-ccssarilv, the power to modify or repeal, or
to create anew." (United States r. Eliason, IB Vet., 802.)
' United States v. Barrows, 1 Ablxitt, :!51 (Fed. Cases, 14,529).
OLASSIFICATION, ETC., OF ARMY REGULATIONS. 705
act and the rules/ and an army regulation made pursuant to a pro-
vision contained in an act of Congress is of the same force. Examples
of regulations of this class are those relating to the examination of
enlisted men for commissions, under the act of Congress of Jul}^ 30,
1892, and the Executive order of March 30, 1898, prescribing limits
of punishment.
3. Those emanating from, and depending on, the constitutional
authority of the President as commander-in-chief of the Army and as
executive, and not made in supplement to particidar statutes. These
constitute the greater part of the Army Regulations. They are not
only modified at will by the President, but exemptions from particular
1 Butler V. White, 83 Fed. Rep., 578. See also United States v. Wade, 75 Fed. Rep.,
261; Boody v. United States, 8 Fed. Cases, 860; United States v. Webster, 28 Fed.
Cases, 509; Allen r. Colby, 47 N. H., 544; The Thomas Gibbons, 8 Cr., 421; Parker v.
United States, 1 P., 293, 297; United States v. Freeman, 25 Fed. Cases, 1211; Lock-
ington's Case, Bright, 269; Low v. Hanson, 72 Me., 104; United States v. Williams,
6 Mont., 379; Caha v. United States, 152 U. S., 211, 221. But as to the conclusion
in Butler v. White, in regard to removals from office under the civil service act and
rules, see post, p. 718, note.
By act of Congress of March 1, 1328, it was prescribed, "That if any persons shall
swear or affirm falsely, touching the expenditure of public money, or in support of
any claim against the United States, he or she shall, upon conviction thereof, suffer
as for willful and corrupt perjury." It was held V)y the Supreme Court that under
this legislation the Secretary of the Treasury had the power to make a regulation
authorizing justi(;es of the peace of States to administer oaths to affidavits in support
of claims, and that perjury might be assigned on an affidavit so taken, (United
States r. Bailey, 9 Pet., 238). And see United States v. Breen, 40 Fed. Rep., 402.
Such regulations must of course be consistent with the law, as is pointed out in the
following extract from a report of the Judge- Advocate General's Office, dated No-
veniber 22, 1888:—
"Paragraph 2454, Army Regulations of 1881, was first promulgated by direction of
the Secretary of War on June 22, 1872, in General Orders, No. 51, A. G. 0. These
orders prescribed rules for the execution of the provisions of the act of Congress
approved May 15, 1872 (17 Stat., 116), now embraced in sections 1280-1284, Revised
Statutes. Although this statute was silent as to the execution of the details of its
provisions, yet as the execution thereof, from the nature of the enactment, required
to be specifically methodized, the authority for prescribing rules to effectuate the
objects of the law resulted by legal implication in connection with the constitu-
tional duty of the executive department to ' take care that the laws be faithfully exe-
cuted.' (1 Winthrop, 19; McCall's Case, 2 Phila., 269; 10 Wheat., 42; 7 Pet., 2; 9
id., 238; 1 Pet., C. C, 471; 1 W. & M., 164; 11 Mich., 298; 16 Wis., 423; 5 Phila.,
287; 47 N. H., 544; Coolev's Principles Constitutional Law, 44; 1 Opin. Atty. Gen.,
478; 2 /(/., 225,243-245, 42-1; 4 /(/., 225, 227; 6 id., 365; 16 id., 39.)
"It is obvious that the regulations under discussion were nu^de in aid of the law
cited and therefore belong to the class of regulations termed by the Court of Claims
in its opinion, heretofore mentioned, as 'supplementary to the statutes which have
Iteen enacted by Congress in reference to the Army.' But in order that such regula-
tions shall have the force of law, they must, under the authorities cited, be cotisiiifent
with the statute in aid of which they were made.
" It will appear from the report of this office of October 9, 1888, that paratirajih
2454, Army Regulations of 1881, was originally issued under a misapprehension of the
intent and effect of the provisions of the act of Congress approved May 15, 1872 (sees.,
1 280-1 2S4, Rev. Stat.). To make this jwragraph consi.^teid with the statute a project
for an amendment was submitted and substantially adopted by the Secretary of War
bv the i)ublication of General Orders Xo. 95, of November 10, 1888, amending Army
Regulation 2454."
See also §§ 406, 499, pp. 140, 141, ante.
16906—01 45
706 CLASSIFICATION, ETC., OF ARMY REGULATIONS.
regulations aro oiven in excoptional cases; tlie exercise of this power
with reference to them l)eino- found necessar}'. "The authority which
makes them (regulations) can modify or suspend them as to any case,
or class of cases, or generally."'
To which are sometimes added:
4. Departmental regulations, made by virtue of the authoritj' con-
ferred by section IHl, Re\ised Statutes, on the head of each depart-
ment ''to prescribe regulations not inconsistent with law, for the
government of his department, the conduct of its officers and clerks,
the distribution and performance of its business, and the custody, use,
and preservation of its records, papers, and property" appertaining
thereto. '' ^
Mere repetitions of legislative enactments are not included under
an}' of these heads.
15 Dec. First Comptroller, 29, and see art. 1 of Circ. No. 4, 1897, A. G. 0. ; Circ. No. 2,
1885; United States v. Eliason, 16 Pet. 302; Davis's Military Laws, 146, and Military
Law, 6; 3 Dec. Conip. Treas., 305; Smith r. United States, 24 Ct. Cls., 209; Arthur /■.
United States, 16 Ct. Cls., 422; Opin. Judge-Advocate General, March 5, 1896, con-
curred in by the War Department (2074).
The following is an extract from the opinion last cited:
"Regulations may l)e divided into different classes with respect to this question.
There are, or may be, those which have received the sanction of Congress, and it is
evident that the Secretary of War would have no authority to make an exception to
one of these. There are also those that are made pursuant to and in aid of a statute.
These may be modified, l)ut, until this is done, are binding as well on the authority
that made them as on others. (Ignited States ?'. Barrows, 1 Abbott, 351.) There is
also a large body of other regulations emanating from, and depending solely on the
authority of the President as connnander-in-chief. With reference to such regula-
tions, it has, I believe, 1)een sometimes claimed that the same rule should be applied
that is applied to the regulations made pursuant to statute. But this has not been
done in i)ractice, and I do not think tliat it should be done, for the reason that it
would seem to bean unnecessary, eml)arrassing, and perhaps unconstitutional limita-
tion of the authority of the President as commander-in-chief. To exempt from
compliance with a particular regulation in an exceptional case would seem to be a
lawful exercise of that authority."
In United States r. Burns (12 Wall., 246), the Supreme Court held with reference
to an army regulation, prohibiting persons in the military service from making con-
tracts for supplies, etc., with other persons in the military service, that the regulation
did not apply to contracts on behalf of the United States, which requiie<i for their
validity the api)roval of the Secretary of War; that though contracts of that charac-
ter are usually negotiated by sulx)rdinate officers or agents of the Government, they
are in fact and in law the acts of the Secretary, whose sanction is essential to bind
the United States; and that the Secretary, though the head of the War Department,
is not in the military service in the sense of the regulation, but, on the contrary, is a
civil officer witii civil duties to i>erform, 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 ](ris<tners; Poyal Warrants prescribe the jHTnianent regulations as to the
government, discipline, pay, promotion, and conditions of service; and Orders in
Council are regulations made by the Crown with the advice of the Privy Council, in
regard to matters of great importance, such as the duties of the military when on
board puljlic ships, the duties of the ollice of '■ommander-in-chief and other great
CLASSIFICATION, KTC. , OF ARMY REGULATIONS. 709
tutional power to make them from the constitutional power of Con-
gress ''to make rules for the government and regulation" of the land
military offices, etc. Royal Warrants, General Orders (affecting duty, discipline,
and general efficiency), and amendments of the Queen's Regulations, are published
in Army. Orders. Besides the above there are separate regulations for the Militia,
Yeomanrv, and Volunteer Forces. (Pratt's Military law, London, 1892; Gunter's
Outlines of Military Law, 1897.)
Until toward the close of the last century there appears to have been no authorized
system of general army regulations in existence in England, each colonel having his
own standing orders for the discipline and exercise of the regiment, so that "there
was not any standard of uniformitv or of efficiency by which progress in the military
art could be tested." (Olode's Military and Martial Law, 2d ed., p. 55.) In 1788
"A Collection of Regulations and Orders" was issued, and this seems to have been
the first authoritative issue of such a system. The war office regulations were col-
lected and issued in 1807, and the "General Regulations and Orders for the Army,
Adjutant General's Office, Horse Guards," in 1811. A collection of army regulations
by Thomas .Simes was published in 1772, under the title, "The Military Guide for
Young Officers," but this publication had no official sanction.
By the term "system of army regulations" is meant an authorized publication,
such as our Army Regulations, consisting of general rules, made by the executive
authority, for the government, interior economy, and instruction of the army, and
the administration of its affairs. The most noted executive regulations of the British
military service, which, within a less comprehensive, ])ut most important field, were
indeed a very complete system, where the Articles of War, which, before the enact-
ment of the army discipline act of 1879, constituted, together with the mutiny act, the
code of discipline l)y which the British army was governed. The sovereign still has
(under the Army Act) power to make Articles of War, but, owing to the elaborate-
ness of the statutory code, it is regarded as improbable that the exercise of this power,
for the purpose of prescribing the punishments for military offences, will ever again
be necessary. For a short, but very good, sketch of the history of this law-making
by prerogative and by executive regulation authorized by statute, see Encyclopedia
Britannica, title "Military Law.'" In 1686 a work entitled "An A])ridgment of the
English ^Military Discipline" was published. It consisted principally of drill regula-
tions, but also related to encamj^ing, garrisons, guards, and "councels of war or courts-
martial. ' ' Some interesting regulationsof the time of Queen Anne, recently discovered
in the record office of the British ^Museum, are published in the Journal of the Mili-
tary Service Institution for November, 1897.
The Rules of Procedure are authorized by the Army Act, in the following terms:
" 1. Subject to the provisions of this act Her Majesty may, by rules to ])e signified
under the hand of a secretary of state, from time to time make, and when made
repeal, alter, or add to, i^rovisions in respect of the following matters or any of them;
that is to say,
(a) The assembly and procedure of courts of inquiry;
(b) The convening and constituting ot courts-martial;
{(■) The adjournment, dissolution, and sittings of courts-martial;
id) The procedure to l)e observed in trials by court-martial;
(e) The confirmation and revision of the findings and sentences of courts-martial;
and enabling the authority having power under section 57 of this act to commute
sentences to substitute a valid sentence for an invalid sentence of a court-martial;
(/) The carrying into effect sentences of courts-martial;
ig) The forms of orders to be made under the provisions of this act relating to
courts-martial, penal servitude, or imprisonment;
(h) Any matter in this act directed to be prescribed:
(ii') Any other matter or thing expedient or necessarj' for the purpose of carrying
this act into execution so far as relates to the investigation, trial, and punishment of
offenses triable or punishable by military law:
"2. Provided always, that no such rules shall contain anything contrary to or
inconsistent with the provisions of this act.
".S. All rules made in pursuance of this section shall be ju<licially noticed.
"4. All rules made in ])ursuance of this section shall be laid ])efore Parliament as
soon as iiractical)le after they are made, if Parliament be then sitting, and if Parlia-
ment be iiiit then sitting, as soon as practicable after the beginning of the then next
session of Parliament."
710 CLASSIFICATION, ETC., OF ARMY REGULATIONS.
forces. Regulations are, when they relate to subjects within the con-
stitutional jurisdiction of Congress, unquestionably of a legislative
character, and if it were practicable for Congress completely to regu-
late the methods of military administration, it might, under the Con-
stitution, do so. But it is entirely impracticable, and therefore it is
in a great measure left to the President to do it. So far as Congress
chooses to exercise its jurisdiction in this respect it occupies the tield,
and the President can not encroach on it.^ But when it does not see
fit to do so, the President's power is of necessity called into action. It
is, indeed, of the commonest occurrence for Congress to regulate a
subject in part and for the Executive to regulate some remaining part,
and this without an}' pretense of statutory authority, but upon the
broad basis of constitutional power. We thus have a legislative juris-
diction and, subject to it, an executive jurisdiction extending over the
same matter.- It could not be otherwise. Congress can not regulate
all the details for the execution of all the laws, and the authorit}''
charged with their execution must therefore come to its aid.^
'2 Opin. Atty. Gen., 231; 6 id., 10, 215.
'■^The War Department has recognized this by its approval of the following views:
" The issue of duplicate discharges, or certificates in lieu of lost discharges, is a mat-
ter over which both Congress and the President have control, the former by virtue
of the power 'to make rules for the government and regulation of the land and naval
forces,' and the latter by virtue of his power as executive and commander-in-
chief. The power of Congress is, however, the superior power, and therefore noth-
ing in conflict with any regulation on the subject made by Congress can legally be
l)rescril>ed 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 ■' <lelegation of legislative authority that can be avoided. An illustration of this
rule is found in the case of Interstate Commerce Commission r. Railway Company
(167 U. S., 479). The Interstate Commerce Act required that all charges on railroads
should be reasonal)le and just, and every other was declared to be unlawful. Iti)ro-
hibited discrimination, undue preferences, etc. It created the Interstate Commerce
Commission, gave it authority to inquire into the management and business of all
common carriers, and added: 'And the Commission is hereby authorized to execute
and enforce the provisions of this act.'
"Under this authority, the Interstate Commerce Commission undertook, by an
order, to establish a schedule of rates for certain railroad companies, and, upon the
refusal of the latter to observe them, applied to the circuit court for the southern dis-
trict of Ohio for a mandamus to enforce their oi'der, and, this l^eing refused, appealed
to the court of appeals, and the latter court certified to the Supreme Court of the
United States the question whether the Commission had the jurisdictional j^ower to
make the order before mentioned. Justice Brewer, in delivering the opinion of the
court in the negative, said, in construing tb.e act of Congress: 'The power given is
the power to execute and enforce, not to legislate. The power is partly judicial,
partly executive and administrative, but not legislative.'
"Again:
"'We have, therefore, these considerations presented: First. The power to pre-
scribe a tariff of rates for carriage by a common carrier is a legislative and not an
administrative or judicial function, and, having respect to the large amount of prop-
erty invested in railroads, the various companies engaged therein, the thousands of
miles of road, and the millions of tons of freight carried, the varying and diverse
conditions attaching to such carriage, is a power of supreme delicacy and importance.
Second. That Congress has transferred such a power to any administrative body is
not to be presumed or implied from any doubtful and uncertain language. The
words and phrases efficacious to make such a delegation of power are well understood
and have been frequently used, and if Congress had intended to grant such a power
to the Interstate Commerce Commission it can not be doul)te<l that it would have
used language open to no misconstruction, but clear and direct. Third. Incorporat-
ing into a statute the common-law obligation resting upon the carrier to make all
its charges reasonable and just, and directing the Commission to execute and enforce
the provisions of the act, does not by implication carry to the Commission or invest
it with the power to exercise the legislative function of prescribing rates which shall
control in the future.'
"And so, with equal emphasis, it may be said that the authority to the Civil Serv-
ice Commission to aid the President in preparing rules for carrying the act creating
that Commission into effect, does not by implication confer upon the President a
right to virtually repeal an existing law, especially when, as we shall see, that is not
at all necessary to the effectual operation of the act itself. And lastly, there is noth-
ing in the language of the act or the objects which it professes to attain which inake
it necessary to attribute such executive power to the Commission or the President.
The act nowhere requires that the power of removal vested in the head of a depart-
ment shall be abridged except in the single particular of removal, because of the
refusal to contribute foi- partisan purposes; and therefore it is not necessary, in order
to carry the act into effect, that any rule should be adopted abridging the power of
removal of the Postmaster General or other head of a department in any other respect.
"The second section contains an enumeration of the objects for which the rules
720 EXECUTIVE REGULATIONS IN GENERAL.
pursuant to, or in execution of, statutes. They are to be met with
are to provide. They are: For competitive examination, for appointment by selec-
tion from those grades highest as the result of such examinations, for apportionment
of the appointments among the States and Territories and the District of Columbia,
according to population, for a period of probation before absolute appointment, for
exemption of persons in the public service from any obligation to contribute to any
political fund and from being coerced into any political action, and for noncompeti-
tive examination in certain cases, and for notice to the Commission of all appoint-
ments made by the appointing power.
"It would be a very irrational interpretation which would give to the words 'and
among other things,' which are prefixed to this enumeration, such a scope of mean-
ing as to convey by implication an unlimited authority to establish rules having no
relation to the ol)jects of the law. If that were a jiroper interpretation of the Jaw,
these rules might be made to nnpose new conditions to the power of appointment,
and even take it away from the heads of departments and vest it in the Commission
itself. The absurdity of such a proceeding would be manifest, and yet it would be
no more obnoxious to criticism than rules modifying the power of removal, as it
existed before the act was passed, or in a manner not warranted by the law itself.
"The law seems to contemplate the preparation of these rules as the joint act of
the Commission and the President. It directs that when promulgated they shall l)e
observed by all the officers in the departments. It does not in terms declare by
whose authority they are to be promulgated and to go into effect, but it is to be pre-
sumed that it is to be by the President. It makes no difference, however, whether
they are to emanate from the President or the Commission, for Congress is just as
incapable of surrendering its legislative authority to the President as to the Commis-
sion; and is just as little to be understood as intending to do so in the one case as in
the other. The simple inquiry is whether the rules invoked by the complainant,
whether the President or the Commission, or both, })e the authors of them, are such
as the act of January 16, 1883, known as the Civil Service Act, authorized to be estab-
lished. In my judgment they are ultra vires and void.
" I have no doubt that the President may lay down rules for the internal policy of
his Administration, and may require his chief executive officers, dependent upon his
pleasures for their tenure of office, to conform to them, or else to sever their official
relations with him, and in that sense the rules relied on by the complainant were
within his political and executive authority. But the enforcement of such rules is a
matter between the President and his Cabinet, and not a matter for the courts, or
one in which the complainant has any legal interest. All that I mean to state in this
opinion is that the rules in question were not such as the Civil Service Act author-
izes, and do not derive any efficacy from that act.
"I know of nothing more important to the true interests of the country than the
policy which the civil-service legislation w-as intended to initiate and promote, and it
is perhaps a matter for great regret that the act of January 16, 1883, has not gone
further than it does. But it is my duty to construe it as it is.
"To sum up, I conclude that, apart from the Civil Service Act, the Postmaster
General had the authority to remove the complainant from office at his pleasure;
that this act makes no change in this respect, except to forbid removals for refusal to
contribute to partisan objects; that the power to the Commission and the President
to establish rules to carry that act into effect does not authorize any rule which shall
make a change in the law in this respect, and that even if this court had jurisdiction
in a case like the present, the complainant is not entitled to the relief prayed."
In Carr v. Gordon (82 Fed. Rep., 379), it was said with reference to a civil service
rule:
" But on July 27, 1897, the President of the United States promulgated an order
announced as an amendment to rule 11, as follows: 'No removal shall be made from
any i)Osition subject to comix'titive examination except for just cause, and upon
written charges tiled with tlie head of the department or other appointing officer,
and of which the accused shall have full notice, and an opportunity to make defense.'
This is an authoritative exi)ression l)y the Executive of the United States of his
desire and coumiand to his subordinates with respect to removal from office of those
coming within the scope of the civil service regulations. Possessed by the Constitu-
tion of the power of appointment and removal, except, jKJSsibly, as he may be therein
restricted by act of Congress, the Executive has the right to regulate for himself the
EXECUTIVE REGULATIONS IN GENERAL. 721
throughout our political system, and are a necessary part of its
machinery/
manner of appointment and removal. He may direct his subordinates, who exer-
cise under him, in certain cases, the power of appointment and removal, with respect
thereto, and may regulate the manner in which they may act for him; but this is an
administrative order of the Executive, not made in compliance with any law, or in
regulation of the execution of any law enacted by Congress restricting his right of
removal, but is simply an instruction to those who hold positions by virtue of his
appointment of the manner in which they shall discharge their duties in respect to
the removal of their subordinates. The order is not the law of the land; it is not
the emanation of the law-making power, but is merely a regulation adopted by the
Executive, as he rightfully might, in regulation of the conduct of those who are sub-
ject to his authority. He made it, and may, at his pleasure, rescind it. The law of
the land is not subject to repeal by the Executive. The regulation and orders of the
Executive or heads of departments under authority granted by Congress — such aa
the order under consideration here — are regulations j)rescribed by law in the sense
that acts done under them are upheld; and in that light they may have the force of
law. But the failure to do the act there])y enjoined, or the doing of the act thereby
prohiljited, does not render one liable to the law. ( United States r. Eaton, 144 U. S.,
677, 688, 12 Sup. Ct., 764.) Consequently, no vested right to hold office indetinitely
is acquired b}' themcumbent by virtue of the executive regulation in question. This
executive order or regulation, therefore, confers no right upon the incumbent of office
of which a court of equity can take cognizance. He who disobeys such order of the
President is responsible to, and must be dealt with by, him. Courts of equity are not
constituted to regulate the departments of the government. Their jurisdiction is
limited to the protection of the rights-: of property. They have no concern, as I
understand the boundaries of their jurisdiction, over the appointment and removal of
jHiblic officers."
See also Taylor v. Kercheval (82 Fed. Rep., 497), in which case the court said:
" It needs neither argument nor citation of authority to demonstrate that neither
the President nor the Civil Service Commission is clothed with legislative powers.
Neither can change the law, either by repeal or by making a new enactment. And
it is equally elementary that Congress can not delegate its legislative powers either
to the President oi the Civil Service Commission. The rules promulgated which
place office deputies in the marshal's office in the classified civil list are not a statute,
nor have they the force of law. They are merely executive rules and regulations,
promulgated by authority of law, and" are effective, if at all, only as rules and regu-
lations for the internal control and government of the civil service and the executive
departments. The courts of chancery have no jurisdiction or authority to enforce
such rules or regulations. Their enforcement lies within the domain of the execu-
tive departments, which possess ample power to enforce the proper oljservance of
and subordination to the rules and regulations promulgated by the Executive for
the government of those employed in any executive department of the government.
If the marshal, by the removal or threatened removal of the complainant, has vio-
lated, or is about to violate, those rules and regulations, there is ample power in the
Department of Justice to redress the wrong, without any resort to a court of chancery. ' '
But see the case of Butler v. White (83 Fed. Rep., 578), in which the court held:
"First, that the act known as the 'Civil Service Act,' is constitutional; second,
ihat Congress has not delegated to the President and the Commission legislative
powers; third, that by rule 3, sec. 1, the Internal Revenue Service has been placed
under the Civil Service Act and rules made in pursuance of it; fourth, that the
plaintiffs in these actions are officers of the Government in the Internal Revenue
Service; fifth, that they cannot be removed from their positions except for causes
other than political, in which even their removal must be made undei the terms and
provisions of the Civil Service Act and the rules promulgated under it, which, under
the act of CV ingress, became a part of the law; sixth, that the attempt to change the
position and rank of the officers in these cases is in violation of law; seventh, that a
court of equity has jurisdiction to restrain the appointing power from removing the
officers from their positions if such removals are in violation of the Civil Service Act."
' "It would require too much space to enumerate all the statutory provisions of this
class down to the present time, in which 'regulations,' as such, are authorized to be
161)06—01 16
722 EXECUTIVE REGULATIONS IN GENERAL.
The power to make reg^ulations is not, indeed, confined to political
bodies or officers. It enters into other relations of life — wherever, in
fact, government is necessarv.' (See j>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
annex<?d to the franchise which, if he breaks, he may be disfranchised.'
But where the offence is merely against his duty as a corporator, he
can only l)e tried for it by the corporation. Unless the power is inci-
dent, franchises or offices might 1)6 forfeited for offences, and yet there
would l^e no means to carry the law into execvition. Suppose a by-law
made to give power of amotion for just cause, such a by-law would be
good. If so, a corporation, by virtue of an incidental povrer, ma}"
raise to themselves authority to remove for just cause, though not
expressly given by charter or prescription.' The doctrine of that
celel)rated case has never been questioned from the time it was
announced, and it is the law, both in England and in this country, at
the present day. (Com. v. St. Patrick Ben. Soc, 2 Binn., 448. 440; 2
Kent. Com., 207.)"
As alread}" stated with reference to armj' regulations made pursuant
to statute, regulations of this kind may be modified, but exceptions to
them in individual cases can not legalh^be made.^ There is. however,
a difi'erence to l)e observed in this respect between general regulations
and specific acts. Ordinarily when an executive officer is empowered
by law to do one specific act, as, for example, to reserve public land
for a specific public use, his doing this act exhausts his power as to the
' This is illustrated by the following newspaper comments (1897) :
"The appointment of General Tyner to be Assistant Attorney General for the Post
Office Department has been criticised by some as a violation of the civil service law,
in that the place being under the Post Office Department was included within the
classified service by an order of President Cleveland.
"Civil Service Commissioner Procter to-day stated that when President Cleveland
ordered the classification of the Post Office Department, it was not supposed that the
place of Assistant Attorney General for that Department was within the scope of
that order. When it was found that such was the case, the matter was brought to
the attention of President INIcKinley, who excepted the place, allowing the appoint-
ment to be made without Examination l)y the Civil Service Commission.
"The announcement that the President had excepted this place after it had been
included 'n\ the classified service, even if such classification was the result of a mis-
take, has created surprise, as the Commission has contended that when once a place
was included in the classified service by order of the President, under authority of
the civil service law, such action had the force of law and could not be rescinded
exceiit by act of Congress.
"At the office of the Civil Service Commission to-day it was stated that this view of
the effect of once including a place in the classified service was the accepted opinion
of the Commission, but it was not generally understood that the President still
retained the power to 'except' any place from examination and to make the
ai)pointment without the intervention of the Commission, the place still being in the
classified service, the only restriction placed upon such power being the provision
that he could make 'necessary' exceptions."
724 EXECUTIVE REGTTLATIONS IN C4E]SrERAL.
subject-matter. So, where he is empowered to do a .speeiiic set of acts.
But when he is given a general discretionar}^ power to make reguki-
tions in execution of a law, the power to modif}' regulations once made
is included in it.
A distinction should, however, be made between essential regula-
tions made in aid of a statute, such as are necessary to the execution
of the statute and thus have the appearance of being of a decidedly
legislative charactei', and regulations which are merely supplemental
to these and relate to the minor details of the machinery for the exe-
cution of the statute. These are, to be sure, made in aid of it also,
but are not of the character referred to. It is, however, impossible
to lay doAvn any rule which would enable us, at a glance, to distinguish
in every case the one from the other. There is not alway.-^ a clear-cut
line of demarcation. The distinction exists, but its application must
be controlled ))y the facts of each case.
The Judge- Advocate (xeneraFs Office has applied the principle of the
binding character of regulations made in execution of statutes to regu-
lations made for the disbursement of an appropriation, holding that
when Congress makes an appropriation, but leaves it to the Executive
to prescri})e regulations for its disbursement, such regulations should
be regarded as ma.le in execution of a statute (although not actually
pursuant to it), and therefore as falling under the rule that they are
binding on the authority who made them as well as on others, and that
they may be modified, but that individual exceptions to them can not
be made. And the action of the War Department is understood to
have been a contirmation of this view.^ The regulations in question
related to the expenditure for the transportation of deceased soldiers
to the place of burial.' Another example of a regulation of this
^ I have not, however, undertaken to discuss what effect the existence of a state of
war might have on this principle. In point of fact, regulations are very freely waived
in time of war, and that too without regard to the class to which they belong.
-The Judge- Advocate General's views were, on this occasion, stated as follows:
"Paragraph 162, Army Regulations, provides that the remains of deceased soldiers
will be transported by the Quartermaster's Department to the nearest military post
or national cemetery for burial, unless the commanding officer deems burial at the
place of death proper. It also prescribes that the expense of transporting the remains
is payable from the appropriation for army transportation.
"In the case presented in this (•ominunication transportation for the lemains of a
deceased soldier from Fort Walla Walla to Middlctown, Pennsylvania, is asked for,
and my opinion is desired as to w hether the (Secretary of War has authority to grant
the reepiest.
"The regulation cited is one for the disbursement of a publii; fund. The appro-
priation act does not prescribe regulations for this disbursement, l)ut leaves it to the
Executive to do so. This is the same, in effect, as if Congress had expressly author-
ized the Ex(>cutive 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<l 1)y regulations " adopted ])y the Pres-
ident." Both of these Superintendents, in addition to l)eing in control of schools,
are commanding officers of posts, with the authority appertaining to them in that
capacity. See note, page 748, porf.
The regulations for the government of the Revenue-Cutter Service are issued in
the exercise of the general executive power of the President, whereas his power to
make army regulations not Ijased on legislation is derived from his constitutional
authority as commander-in-chief. How far this power would extend were Congress
not vested with a superior power over the sul)ject, or if, being so vested, it should
entirely fail to exercise the power and to provide any system of government for the
Army, it would be difficult to estimate. Would he have a power already exercised,
with apparently less authorization, in the promulgation of regulations for the gov-
ernment of the Revenue-Cutter Service?
^See opinion of Attorney (General, May 22, 1900, addressed to the Secretary of the
Navy, in the matter of the relative rank of Majors L. and M., of the Marine Corps.
In such cases he says: " Where tlie matter is not regulated by statute, you may your-
self determine them, with the fcn-ce and effect of law, by virtue of your general
authority, under the President, to make rules and regulations for the government of
the Navy. Usually, of course, this is better done 1)y general rules than by decisiona
in particular cases, but it may be done in either way."
EXECUTIVE EEGULATIONS IN GENERAL. 729
ernment has been considered. When we examine the State systems
we find there also a great deal of regulation law — not in such large
masses, nor in general of such importance as the federal regulation
law, but nevertheless occupying no insignificant place in the State sys-
tems/ The whole subject is one of exceptional interest, and offers an
enormous field for investigation.
The Supreme Court has repeatedly recognized the legality and force
of army regulations:
"The Army Regulations, when sanctioned by the President, have
the force of law, because it is done by him by the authority of law.
The regulations of 1825, then, were as conclusiye upon the accounting
officer of the Treasury, whilst they continued in force, as those of 1836
afterwards were, and as those of 1841 now are. When, then, an officer
presents with his account, an authentic document or certificate of his
haying commanded a post or arsenal, for which an order has been
issued from the War Department, in conformit}" with the provisions
of the Army Regulations, allowing double rations, his right to them is
established, nor can they be withheld without doing him a wrong, for
which the law giyes him a remedj-."" (United States v. Freeman, 3
How., 567.)
"As to the Army Regulations, this court has too repeatedly said that
they have the force of law to make it proper to discuss that point
anew.'" (Gratiot v. United States, 4 How., 118.)
"The power of the Executive to establish rules and regulations
for the government of the Army is undoubted." (United States v.
Eliason, 16Pet., 301.)
"The Army Regulations derive their force from the power of the
President as commander-in-chief, and are binding upon all within the
sphere of his legal and constitutional authority."" (Kurtz v. Mofiitt,
115 U. S., 503.) See also Swaim lu United States, 165 U. S., 553.'^
^In many of the States the governors have express statutory authority to make
regulations for the government of the mihtia, as, for example, in New Hampshire,
where "The commander in chief is authorized to establish and prescribe such rules,
regulations, forms, and precedents as he may deem proper, for the use, government,
and instruction of the New Hampshire National Guard," and " to make such changes
and alterations in such rules and regulations from time to time as he may deem
exjiedient; but such rules and regulations shall conform to this act, and to those gov-
erning the United States Army, and shall have the same force and effect as the pro-
visions of this act."
In Michigan a "State military board " is created, with power " to prepare and pro-
nmlgate all articles, rules, and regulations for the government of the State troops, not
inconsistent with the laws of the United States, or of this State, and which articles,
rules, and regulations, when approved by the commander in chief, shall be in force."
Some of the States have no military regulations of their own, but use the United
States Army Regulations, so far as applicable.
-See also United States v. Landers, 92 U. S., 77; ex parte Reed, 100 U. S., 13;
United States v. Symoncis, 120 U. S., 46; and Am. and Eng. Enc. of Law, "Military
Law — Army Regulations;" Dugan v. LI. S., 34 Ct. CI., 458; Opin. Atty. Gen., Feb.,
1900, in Lt. Brown's case, (G. 0. 21, A. G. O., 1900); In re Fair, 100 Fed. Rep., 149.
730 APPROVAL OF EEGULATIONS BY CONGRESS.
With reference to navy reg-ulations. issued under section 1547 of
the Revised Statutes, Attorney General Devens said that what Con-
gress bad conferred on the Secretary of the Navy was not any portion
of its o-eneral power of legislation, but only the right to make appro-
priate regulations for the performance of their duties by those whom
Congress had placed under his official control. But if it is true that
the source from which the President derives his authority to make
regulations is statutory, in the absence of statute he would have no
authority, and this we know not to be so. There is no similar exist-
ing provision of law relating to the Army, but the power of the
President to make regulations for the Army is unquestioned.
CHAPTER III.
APPROVAL OF REGULATIONS BY CONGRESS.
An impression has existed that a peculiar "force of law" is given
to regulations by their approval by Congress, but it seems to be an
erroneous one. If, as above stated, the making of regulations is
within the jurisdiction both of Congress and the President, but the
authority of Congress is superior to that of the President, it follows
that when regulations ai-e approved b}^ Congress they can not be
altered by him until the approval is removed. To this extent regula-
tions approved b}- Congress may be said to have a superior force of
law to those not thus approved, but this is not the erroneous impres-
sion referred to. Precisely what it is, is not clear, but it seems to
have been l)elieved that the approval of regulations by Congress makes
them of higher obligation. This, however, is not true. Whether
approved by Congress or not, the}' have, so long and so far as they are
in force, the force of law,^ and are therefore binding. The distinc-
tion, in this respect, that has sometimes been made between regula-
tions approved by Congress and those not thus approved is misleading.
Congress has on several occasions given its sanction to army regu-
lations:
1. An act of March 3, 1813 (2 Stat. L., 819), provided, "That it
shall be the duty of the Secretary of the W^ar Department, and he is
hereby authorized, to prepare general regulations, better detining and
prescribing the respective duties and powers of the several officers in
'Gratiot r. Ignited States, 4 How., 118; United States v. Barrows, 24 Fed. Cases,
1018; United States /■. Wade, 75 Fed. Hep., 2H1; :\lc("airs Ca.«e, ,2 Phila., 269; and
other authorities cited ante, and in Winthrop's Military Law, vol. 1, p. 20, note 2.
APPKOVAL OF REGULATIONS BY CONGKESS. 731
the adjutant o;eneral, inspector general, quartermaster general, and
comniissary of ordnance departments, of the topographical engineers,
of the aids of generals, and generally of the general and regimental
staff; which regulations, when approved by the President of the United
States, shall be respected and obe3^ed, until altered or revoked by the
same authorit}-. And the said general regulations, thus prepared and
approved, shall l)e laid before Congress at their next session."
A system of regulations was laid before Congress, as required by
the act. It was published (together with the statutes relating to the
military establishment) in book form, from the Adjutant and Inspector
General's Office, May 1, 1813, and may also be found in Vol. I of the
American State Papers on Military Affairs.
2. By act of April 24, 1816 (3 Stat. L..298), it was prescribed "that
the regulations in force before the reduction of the Army be recog-
nized, as far as the same shall be found applicable to the service, sub-
ject, however, to such alterations as the Secretarj- of War may adopt,
with the approbation of the President." The reduction referred to
was made in June, 1815, pursuant to an act of March 3.
The act of April 24, 1816, did not relate to any particular code of
army regulations, but to all the regulations which were in force.
3. As stated in some brief remarks on the different editions of army
regulations, made on a former occasion:
On the 22d December, 1819, the House of Representatives resolved
that ' ' the Secretary of War be instructed to cause to be prepared and
laid before this House, at the next session of Congress, a system of
martial law, and a system of field service and police, for the govern-
ment of the Army of the United States."
On the 22d of December, 1820, the Secretar}^ of War (Calhoun)
accordingly submitted a system of "martial law," prepared b}' Judge-
Advocate Major Storrow (which was never adopted), and a system of
field service and police, which had been prepared b}^ General Scott,
and submitted to the War Department in September, 1818.^
^General Scott, in submitting his code, said:
"I have the honor to inclose, herewith, the analysis of a work long since projected
by me. The accomplishment of some similar design seems an important desidera-
tum in our code of military instruction or legislation. But, on this point, the analysis,
compared with existing regulations, will best speak for itself. I can only say that
the formation of it has cost me much study and reflection, aided by the experience
of a ten years' service, in peace and in war, in the line and in the staff, in the infantry
and in the artillery.
"^Vhen in Europe I collected every work, in French or in English (not obsolete),
on the service, police, discipline, instruction, and administration of an army. These
have been carefully read and collated, and, under the sanction of the War Depart-
ment, I am now ready to compile a book, to correspond with the several articles of
the accompanying analysis; taking, as a basis, our own laws, regulations, orders, and
practice, as far as the paucity of the material may suffice.
"Should the idea of a board occur, in connection with this offer, I would beg leave
732 APPROVAL OF REGULATIONS BY CONGRESS.
December 26, 1820, the Speaker laid them before the House. The
document was in manuscript and was ordered to be printed, and a copy-
laid upon the desk of each member. (It is reprinted in the third volume
of the State Papers on Militar}- Affairs.) When the book was printed
several copies were sent to General Scott, who made certain correc-
tions, and on the 20th February, 1821, returned a corrected copy (of
which he retained a duplicate) to the War Department for the commit-
tee of the House. It was received by the chairman of the committee
on the 23d of Fehruary, 1821.
Fehrnary ^7, 1821., the chairman of the Military Committee of the
House reported the Senate bill, ''to reduce and lix the military peace
establishment," with certain amendments, among which was the addi-
tion of a section approving- and adopting " the S3'stem of General Reg-
ulations for the Army, compiled by Major-General Scott." The bill,
including this (the fourteenth) section, became law March 2, 1821,
Early in that month, General Scott received directions to put the book
to press for the use of the Army, and, having received a letter from
the chairman of the Military Committee of the House, informing him
that the corrected copy had been received and section 1-1 added to the
Army bill by way of amendment, he caused the book to be reprinted
from his retained duplicate corrected copy.
The regulations were then — July, 1821 — issued by the War Depart-
ment, vyltli the corrections., as " forraall}" approved by Congress," except
as to fourteen articles, which, it was stated in an order of Secretar}' of
War Calhoun, prefacing the work, had received the sanction of the
President.
This gave rise to the (question, Was the corrected copy the one
approved by Congress ? In 1822, a committee of the House of Rep-
resentatives was appointed to investigate the circumstances attending
to suggest, that, joint labors, of the Hterary kind, but rarely succeed; and that I have,
personally, a repugnance to that sort of employment, which nothing but a positive
order could induce me again to forego. Indeed, I am persuaded (and from a per-
sonal experience somewhat in point) that, of five individuals, of equal qualifications,
either might make a better book than the five taken together."
"Perhaps it might be well to give the titles, etc., of the works from which I should
expect to compile; but, as this might also seem ostentatious, without a more apparent
necessity, I will, at present, confine myself to the mention of the two following, which
are the principal:
"1. 'Legislation Militaire, ou recueil methodique et raisonne des lois, decreta,
arrett's, reglemens et instructions actuellement (1812) en vigueur, sur toutes lea
branches de I'ctat militaii'c,' pai" Berriat, etc., five large 8vo volumes, pp. 2509.
Notwithstanding the title and the l)ulk of this manual of the French army, it does
not contain, except by reference, a syllable of the tact'ujue of the several corps.
"2. 'General Kegulations and Orders for the Army;' edition of 1813; pp. 326, in
Svo. The British manual, like that above, merely refers to the regulations on tactics.
In the execution of the work now proposed, similar references would, occasionally,
be necessarv."
APPROVAL OF REGULATIONS BY CONGRESS. 733
its publication. Gen. Alexander Sm^^th, the chairman of the Military
Committee, stated that when he proposed section 14, of the act of
1821, to the committee as an amendment, he had reference to the cor-
rected Regulations which he had then received, and that he did not
recollect exhibiting- them to the committee, but thought he had, and
believed that when he reported the amendments to the House, he had
the corrected cop}^ and deposited it with the clerk with the intent
that from that copy the system should be published. These recollec-
tions were not, however, sustained by the other members of the com-
mittee nor by the clerk of the House. None of them apparently had
ever seen the corrected copy he/ore the passage of the law, but the
clerk of the House thought he had seen it suhsequently ^ when General
Sm^'th made a return to him of various papers which had been before
the committee, and he refused to receive it, not considering himself
the proper repository. Search had been made in his office, but it
could not be found.
The select committee reported that it was an act of omission, and not
of design, on the part of the chairman of the Military Committee in
not submitting the corrected copy to the committee.
The committee reported. May 6, 1822,^ and Congress immediately
passed an act — which was approved May 7 — repealing the fourteenth
section of the act of 1821.
General Gaines was accused by General Scott with being instrumen-
tal in raising the opposition to these regulations.
4. By an act of Congress of July 28, 1866, the Secretary of War
was directed to have prepared, and to report to Congress, at its next
session, a code of regulations for the government of the Arni}^ and of
the militia in actual service, including rules for the government of
courts-martial, the existing regulations (those of 1863) to remain in
force until Congress should have acted on such report — not, as it has
been erroneousl}" stated, until Congress should otherwise provide.
It was said by the Court of Claims (13 Ct. Cls., 6), and repeated by
Attorney General Brewster, that under the act of 1866 a report of a
code of regulations for the government of the Army was made but not
acted on. This was evidentl}^ a mistake; a system of regulations was
prepared by a board consisting of Generals Sherman, Sheridan, and
Augur, but it does not appear to have been submitted to Congress.
A revision of the Articles of War was reported, but not, it would
seem, a code of regulations.
' For the report of this committee (containing General Scott' s explanation), see
American State Papery, Vol. XIII, p. 422. See also Winthroo's Military Law and
Precedents, p. 23.
734 APPEOVAL OF REGULATIONS BY CONGRESS.
The act of 186G was construed by the Court of Claims, the Attorney
General, the Second Comptroller, and Secretaiy of War Belknap' to
have had the eflect of an adoption b}^ Congress of the regulations of
1863, but there has been little agreement as to how long the regula-
tions so adopted remained in force. The legislation has sometimes
been regarded as repealed b}- the repeal provisions (section 5596) of
the Revised Statutes, if not already superseded b}^ the act of Jul}^ 15,
1870, which again provided for the preparation of a system of regula-
tions, to be reported to Congress "at its next session." It has also
been held that the regulations of 1863 remained in force, by virtue of
the legislation of 1866, until superseded bv the regulations of 1881,
issued under the act of July 23, 1879, authorizing the Secretary of War
to cause all the regidations of the Army and general orders then in
force to be codified and published.^ And thev have been treated as in
force subsequentl}^ to this. According to Second Comptroller Maj'-
ntird, in 1886 (Dig. Opin. Second Comptroller, vol. 3, § 867), and the
Court of Claims, in 1888 (23 Ct. Cls., 461), they were in force at those
dates, by virtue of the legislation of 1866.
Two codes of regulations have been issued since then, but not under
any act of Congress.^ If, therefore, the regulations of 1863 were in
fact in force, by legislative adoption, at the time of the issue of the
last two codes (1889 and 1895), as the}- were if the Second Comptroller
and the Court of Claims were correct, the}' were not legally alterable
b}^ the later codes, and are not legally alterable by executive action
now, and all the actual alterations of rules that have been thus in fact
made are invalid, and the regulations of 1863 are still legally in force.
But they were not.
The legislation of 1866 was undoubtedly repealed l)y section 5596 of
the Revised Statutes, if it was in force up to the date of their enact-
ment. That it was repealed by the legislation of 1870 does not appear
to be true, because the provisions of the latter never took eli'ect. But
^In submitting to Congress, February 17, 1873, a system of regulations prepared
in accordance witii the provisions of an act of July 15, 1870, Secretaiy Belknap said:
"The regulations then and now in force are those of 1863. They are ten years old,
and no longer adapted to the condition of Army affairs, but under the act of 1866 it
is impossible for the Executive to change them. The length of a letter on a knap-
sack, for example, being prescril)ed therein, the Executive has no power to alter its
size until Congress shall authorize it, and the regulations now presented will l)e sub-
ject to precisely the same ol)jecti()n, and if they are to be made law, not to lie altered
or amended save Ijy act of Congress, there are many jn'ovisions that it would be wise
not to present, as experience may sliow that alterations may be necessary. The
Secretary of War, therefore, earnestly recommends to Congress that, if formally
approved by that body, they be made subject to sudi alterations as the President may
from time to time adojd."
'■'Attorney General Brewster, 17 Opin., 463.
^The legislation of 1875, hereafter described, considered by the light of its history,
is believed to have been carried out, and satisfied by the pronuiliration of the regu-
lations of 1881.
DIFFERENT EDITIONS OF ARMY REGULATIONS. 735
it would seem to have expired b}^ virtue of its own terms at the end
of the second session of the Thirty-ninth Congress, when the report
called for not having been made, and it being no longer possible to
make it at that session, as required, the legislation became inoperative.
The regulations of 1863 existed from that time on (and, if not, cer-
tainly after the enactment of the Revised Statutes) as an ordinary
executive code, not stamped with legislative adoption, but liable to be
superseded, and in fact superseded, ))}• the first code issued thereafter.
CHAPTER IV.
THE DIFFERENT EDITIONS OF ARMY REGULATIONS.
The following information with reference to the different editions
of Army Regulations, although but a brief sketch of the history of
their adoption, will, it is believed, present the matter in a form con-
venient for future use.
Prior to the adoption of the Constitution, Congress (which then con
stituted the Government) provided, from time to time, for regulations
for the Army, principall}' for the government of the staff' corps. In
some cases the Board of War, then consisting of civilians, was directed
to make regulations. (2 Journals of Congress, 432, 520; 3 id.^ 328.)
In others, chiefs of the different corps were so authorized; as the
Quartermaster General, for certain classes of his emplovees (/r7., 126;
3 id., 253, 4!H)); the Inspector General (3 id., 203, 523, 525); the
Director of Military Hospitals [Id., 527); and the Medical Board {id.,
705). The Secretary of War, after one was appointed by Congress,
was, in addition to his general duties, required to "" regulate," or
"direct," as to certain special subjects — as the making of pa3^ments
and returns and keeping of accounts by regimental paymasters (4
Journals, 7), the making and transmitting of returns ]\v officers gen-
erally {id., 9), and the duties of the commissary general of prison-
ers {id.).^
In 1779 (March 29) the Continental Congress adopted certain " Regu-
lations," to ''be observed by all the troops of the United States."
These had been prepared by Baron Steuben, and were published in
the same year as "Regulations for the order and discipline of the
troops of the United States." They were, for the greater part, a sys-
' Winthrop's Military Law, p. 21, note 3. And see, jrenerally, the subject of
"Kegulations for the Army," as discussed by this author.
736 DIFFEEENT EDITIONS OF AKMY REGULATIONS.
tern of tactics and rules for the camp and on the march, but contained
"instructions" for the ditferent reg-imental ofticers and enlisted men.
Another edition of these "regulations" was published in 1809, by
M. Carey, of Philadelphia.
On the increase of the Army in 179S, in contemplation of war with
a foreign power, President Adams issued manuscript regulations, sup-
plemental to Baron Steuben's, containing many rules prescribing duties
of the ditferent grades of officers and enlisted men in service, and par-
ticularly as to the administration in a garrisoned post or barracks.
In 1808 a little volume containing the Articles of War and certain
regulations with reference to allowances and promotion was published
in Washington— apparently by authority— by '^ Dinsmore and Cooper."
Many of the regulations in force at the beginning of the year 1810,
and which had been issued at different times since 179T, in the form
of general and executive orders, are given in Duane's Military
Dictionary.^
In 1812 the statutes relating to the military establishment and the
existing regulations relating to allowances, promotion, and the duties
of the staff were collected together and published in book form. These
regulations are also to be found in the appendix to Maltby on Courts-
Martial.
The regulations of 1813 have already been mentioned. They may
be res^arded as the first of our series of codes of ai-my regulations,
^In this work (published in Philadelphia in 1810) it was said:
"There is no coherent or consjiHtent system of regulations in existence for the mili-
tary establishment of the United States. The economy of military arrangement is as
essential as the discipline of the held, to assure the effects of military operations.
There should be a well digested system of regulations, and upon that system should
be engrafted a staff, susceptil)le of adaptation to the peace or the war establishment,
to the smallest or the largest force. The French have derived the greatest advantage
from their regulations, which have been formed by a well digested body of principles
adapted to all circumstances, and the enforcement and execution of which is always
distinctly appropriated to the proper officers of the staff. At present the regulations of
the United States Army is [are] confined to a few general orders from the War Depart-
ment, on detached points of service; and of occasional orders of the commander-in-
chief, issued upon some exigency, at remote periods, and adopted into permanent
use. In many instances these regulations have been altered by the War Office, in
others the circumstances which gave rise to them have ceased, and the regulations
become obsolete or inappropriate. In 1810, an attempt was made, by the establish-
ment of a Quartermaster (ieneral's Office, to commence something like a system;
should this be accom])lished it may l^e beneficial, though the want of infonnation in
the duties of a staff, ])articularly if those heretofore arranged under the Quartermas-
ter General's Department alone are to be adopted, that it is to be feared the system
may remain defective, sliouid the old English model, now exploded by the British
themselves, be kept in view instead of the more enlarged system introduced in mod-
ern wars. The treatise on tlie staff by Grlmoard, contains the best body of regula-
tions extant. It has been translated and will form a part of the American Military
Lil)rary.
"The following are among the ])rincii)al regulations in force at the beginning of the
year 1810:"
[Then follow the regulations referred to.]
DIFFERENT EDITIONS OF ARMY REGULATIONS. 737
the preceding publications, of 1808 and 1812, making no pretense to
the establishment of a complete system, but merely republishing a few
existing regulations. The greater part of this publication is, however,
also taken up with a republication of statutes. The part of it devoted
to regulations would not equal 20 pages of our present regulations.
Editions of army regulations were also issued in ISl-l, 1816, 1817,
and 1820. Those of 181T and 1820 were republications of the edition
of 1816, with the addition of regulations issued by the War Depart-
ment subsequently. These regulations may be found in the Library
of Congress. Another addition was published in 1815, by Webster &
Skinners, of Albany, New York, but this was not an authorized edition.
An edition was also issued in 1821, under the circumstances already
described.
The next edition was that of 1825. It was a revision b^^ General
Scott of his regulations of 1821.^
In 1834 a system of general regulations for the Army was published
by Francis P. Blair, of Washington. A copy of it is in the War
Department Library. It was not an authorized edition, but seems
substantially to coincide with that which was published in 1835 by
authorit}' and is known as the Macomb Regulations, having been revised
by General Macomb. Some amendments to these were made in an
order from the War Department, dated December 31, 1836, in which
it was declared that the geiieral order prefixed to the regulations of
1835 had never been promulgated, nor been in force, and directing the
page containing it to be canceled, and the order of December 31, 1836,
to be inserted in its place.
Another edition of army regulations was issued in 1841, and a revi-
sion by Gen. E. D. Townsend in 1847.
The next edition was that of 1857, when Jefferson Davis was Secre-
tary^ of War, and sometimes, on this account, called the "Jeff. Davis
Regulations." Tradition seems to connect Gen. Don Carlos Buell with
the preparation of these regulations, but there is no record of it.
^A number of important regulations M'ere published 1833, in Order, No. 48, of that
year — "The 48th Commandmant," as it seems to have been called. (Military and
Naval Magazine, September, 1834.) In an article copied into this magazine from the
"American Quarterly Review," in 1833, it was said: "Under the presidentship of
]\Ir. Monroe, and the secretaryship of Mr. Calhoun, a new era was formed in our
national defence, the beneficial influences of which will continue to be felt as long as
we are a free nation. Our present system of accountableness and responsibility was
then established. * * * From that period the War Department has held a new
rank in the C'a))inet, and assumed a corresponding elevation in popular opinion.
Previously, it had been regarded merely as the headquarters of the Army."
16906—01 47
738 DIFFERENT EDITIONS OF ARMY REGULATIONS.
The regulations of 1847 contained the following article:
"Article X.
"the commander of THE ARMY.
"48. The military estal^lishment is placed under the orders of the
Major-General Conimanding-in-Chief, in all that regards its discipline
and military control. Its fiscal arrangements properly ))elong to the
administrative departments of the stall', and to the Treasury Depart-
ment under the direction of the Secretary of War.
"49. The General will watch over the economy of the service, in all
that relates to the expenditure of money, supply of arms, ordnance,
and ordnance-stores, clothing, equipments, camp-equipage, medical
and hospital stores, barracks, quarters, transportation, fortifications,
Military Academy, pay and subsistence — in short, everything which
enters into the expenses of the military esta])lishment, whether per-
sonal or national. He will also see that the estimates for the military
service are based upon proper data, and made for the objects contem-
plated by law, and necessary to the due support and useful employ-
ment of the Army. In carrying into etfect these important duties, he
will call to his counsel and assistance the stall', and those officers proper
in his opinion to be employed in verifying and inspecting all the
objects which maj^ require attention. The rules and regulations estab-
lished for the government of the Army, and the laws relating to the
military establishment, are the guides to the Commanding General in
the performance of his duties."
This article (and General Scott laid stress on the fact that it was
drawn up with care under the eye of Secretary Marcy, and approved
by President Polk during his absence in Mexico) was omitted from the
Kegulations of 18.57, and a bitter attack on the Secretar}'^ of War b}^
General Scott followed. An account of the controversy which thus
arose, as well as of the circumstances that led up to it, is given in a
paper by Mr. W. A. DeCaindry, on "The establishment of the War
Department as one of the Executive Departments of the United States
Government, with a general view of its interior organization and
administration," published in 1878, as an appendix to the report of
the Joint Committee of Congress on the regulations of the Army.
General Frj^, in his work on brevets, gives a copj^ of General Scott's
objections to the regulations of 1857, and of Secretary Floyd's reply,
in which latter occurs the following passage:
"The failure to insert in the new regulations a definition of the
duties and authority pertaining to the office of commander-in-chief of
the Army, which was contained in the old regulations, I am satisfied,
does not, in any degree, take from it any power, authority, honor or
command conferred upon that high office by law. Definitions are
always difficult, sometimes impossible. The definitions in the old
DIFFEEENT EDITIONS OF AKMY REGULATIONS. 739
reo-ulations, attempting to define ttie duties of the principal officers of
the Army, are not, in my judgment, satisfactory; and I think the new
regulations wisel}' follow the example set by those w^hich you prepared
in 1825, in which no definitions were attempted."
The regulations in question were never restored.
The regulations of 1861 were a repetition of those of 1857, with,
however, some modifications. There is a remarkable lack of informa-
tion in the War Department in regard to the preparation of this code.
The regulations of 1863 were prepared by General Breck, and were
issued under the authority of Secretary" of War Stanton. The}- con-
tain the previous army regulations of 1861, except an entirely new
regulation for the Subsistence Department, which was approved sepa-
rateh^; and they omit those for the Engineer Department, and are
supplemented by an appendix containing "changes and additions to
the Army Regulations up to June 25, 1863." As this was not a com-
plete revision of the regulations, Mr. Stanton preferred to leave the
original order (of the regulations of 1861) for its observance in the
new edition, and to publish it as the regulations of 1861, with the addi-
tions above described.
The legislation of 1866, as affecting the regulations of 1863, has
already been discussed. This legislation required the Secretary of
War to have prepared and to report to Congress at its next session a
code of regulations for the government of the Army. The draft of a
code was prepared by General Townsend, and was submitted to a board
convened in December, 1867, consisting of Generals Sherman, Sheri-
dan, and Augur. In February, 1868, the board reported the comple-
tion of their duties, and submitted the regulations, revised by them,
and approved by General Grant. June 12, 1868, General Schofield,
Secretary of War, made a communication to Congress, in which he
said:
"A very carefully prepared sj'stem of regulations for the Army
and militia is now in my hands awaiting the action which may be taken
on the Rules and Articles of War, with a view to making an}' altera-
tions in them which ma}" be required if the said rules and articles
should be changed.
"In my judgment, however, it would be unwise to subject a code
of general regulations for the Army to the formal action of Congress,
thus giving them a fixed character, unalterable except by the same
formal action. All matter in the regulations which should properly
be bound by force of law is actually made in exact conformity with
militar}' acts of Congress, and is always, when practicable, in the pre-
cise language of the laws. But there are very man}" matters of detail
which depend upon the dail}^ changing necessities of the service, and
740 DIFFERENT EDITIONS OF ARMY REGULATIONS.
are regulated by the experience and intelligence of practical men in
the Arm}^ which should l)e left for moditication, as often as circum-
stances demand, to the discretion of the Secretary of War and the
President. It is a principle, well understood and invariably acted
upon, that whenever a regulation becomes in conflict with a law of
Congress, it is null and void. The law is thus, as it were, a constitu-
tion, and regulations are simply the by-laws based thereon.
"The authority to make alterations in the regulations was vested
by act of April 24, 1816, in the Secretary of War, with the approval
of the President, and has been ever since so exercised with this excep-
tion, that ))y an act of March 2, 1821, a S3^stem prepared by General
Scott, under an act of March 3, 1813, 'was approved and adopted.'
But this act of March 2, 1821, was repealed, in terms, bv an act of
Ma}'^ 7, 1822, leaving the act of April 24, 1816, still in operation. The
Army Regulations are always public and easy of reference, and Con-
gress can readily at any time correct, by legislation, an objectionable
feature which may appear in them.
"I recommend that so much of section 37, act of July 28, 1866, as
requires this code of regulations to be reported to Congress, be
repealed. Its several parts have been prepared b}' officers of the
largest experience and greatest familiarity with the operations of their
particular branches of the Army, and the whole system has been very
carefully examined, arranged, and harmonized by a board of the first
officers in the Army. It has received the approval of General Grant,
who has been consulted on all important points."
No further action was taken with reference to the system of regu-
lations prepared by the Sherman Board. In submitting it to the
Secretary of War, the board remarked:
"It has been our earnest endeavor to make this system as simple,
plain, and consistent in all its parts as possible, and to make no changes
from established usages, except where we were convinced by actual
experience that they were necessary to the service. The regulations
for the staff departments are all based substantially on the recom-
mendations of the present heads of departments, save and except that
we place all the heads of departments in the same relation to the
General of the Army as the law already places him, the General, in
relation to the President, the constitutional commander-in-chief. We
have also endeavored more ciearh" to define the relative duties of the
Secretary of War and the General-in-Chief. Their relative spheres
of duty are so importtmt, and harmony of action on their part is so
directly reflected by the Army itself, that we think too much impor-
tance can not be given to this branch of the subject."
DIFFERENT EDITIONS OF ARMY REGULATIONS. 741
The following were the regulations with reference to the duties of
the General-in-Chief proposed by this l)oard:
■•1. The military establishment is under the orders of the General
of the Army in all that regards its discipline and military control. Its
fiscal arrangements properly belong to the administratiye departments
of the stati*, and to the Treasury Department, under the direction of
the Secretary of War.
"2. The headquarters of the General of the Army shall be at the
city of Washington, and all orders and instructions relating to mili-
tary operations issued ])y the President or Secretary of War shall be
issued through the General of the Army, and, in case of his inability,
through the next in rank. The General of the Army shall not be
remoyed, suspended, or relieyed from command, or assigned to duty
elsewhere than at said headquarters, except at his own request,
without the previous approval of the Senate; and any orders or
instructions relating to military operations issued contrar}^ to these
requirements shall be null and yoid; and any officer who shall issue
orders or instructions contrar}^ to the proyisions of this law shall be
deemed guilty of a misdemeanor in office; and any officer of the Army
who shall transmit, conyey, or obey any orders or instructions so
issued contrar}' to the provisions of this section, knowing that such
orders were so issued, shall be liable to imprisonment for not less than
two nor more than twenty years, upon conviction thereof in any court
of competent jurisdiction.
"3. The General will watch over the economy of the seryice, in all
that relates to the expenditure of money, supply of arms, ordnance,
and ordnance-stores, clothing, equipments, camp- equipage, medical
and hospital stores, barracks, quarters, transportation, fortifications,
Military Academy, pay and subsistence — in short, everything which
enters into the expenses of the military establishment. He will see
that the estimates for the militar}^ seryice are based upon proper data,
and made for the objects contemplated b}' law, and necessary to the
due support and useful employment of the Arm3\ He will call to his
counsel and assistance the stafl', and those officers proper in his opinion
to be employed in verifying and inspecting all the objects which may
require attention. The rules and regulations established for the goy-
ernment of the Army, and the laws relating to the military establish-
ment, are the guides to the General in the performance of his duties."
The regulation numbered 2 was copied from a provision of the Army
Appropriation Act of March 2, 1867, which, as the President declared
in a message to Congress, deprived him of his constitutional functions
as commander-in-chief, but which he was compelled to countenance,
742 DIFFERENT EDITIONS OF ARMY REGULATIONS.
as by withholding his signature, he would defeat necessary appropria-
tions. The legislation, enacted for a clearly unconstitutional purpose,
was repealed in the Army Appropriation Act of Jul}^ 15, 1870, when
the political conditions were changed. It was not, indeed, quietly
submitted to by the President, who on the 3d of September, 1867,
issued his proclamation in Avhich officers of the Army and Navy were
reminded that in accepting their commissions they incurred the obli-
gation to observe, obey, and follow such directions as they might from
time to time receive from the President, or the General, or other
superior officers set over them, according to the rules and discipline of
war, and were enjoined, in this direct manner, to assist and sustain
the courts and other civil authorities of the United States in the
administration of the laws.
By an act of July 15, 1870 (16 Stat., 319), Congress prescribed:
'"That the Secretary of War shall prepare a system of general reg-
ulations for the administration of the affairs of the Army, which,
when approved by Congress, shall be in force and obeyed until altered
or revoked b}^ the same authority; and said regulations shall be
reported to Congress at its next session: Provided^ That said regula-
tions shall not be inconsistent with the laws of the United States."
Pursuant to this legislation, the Marcy Board was convened July 3,
1871. The members of this board were Col. R. B. Marcy, J. H.
King, and H. J. Hunt, and Majors R. I. Dodge and A. J. Alexander.
During November and December, 1871, and January, 1872, the report
of the board was critically considered b}^ the Secretary of War, by
whom Asst. Adjt. Gen. Thomas M. Vincent, as the representative of
the Secretary, had been associated with the board for the purpose of
a further consideration of the proposed system. The sj^stem of regu-
lations thus finally prepared by this board was submitted to Congress
by Secretary of War Belknap, February 17th, 1873, and was published
as H. R. Report No. 85, Forty-second Congress, third session. On
the 13th of May, 1874, the Military Committee of the House made a
report on the subject, concluding with a recommendation of the legis-
lation subsequently (March 1, 1875) enacted. It provided:
"That so much of section twenty of the act approved July fifteenth,
eighteen hundred and seventy, entitled 'An act making appropriations
for the support of the Armj^ for the year ending June thirtieth,
eighteen hundred and seventy-one, and for other purposes,' as requires
the system of general regulations for the Army therein authorized to
be reported to Congress at its next session, and approved by that body,
be, and the same is hereby, repealed; and the President is hereby
authorized, under said section, to make and publish regulations for the
government of the Ami}' in accordance with existing laws."
DIFFERENT EDITIONS OF ARMY REGULATIONS. 743
In 1876, a compilation was prepared by Capt.- R. N. Scott, and
printed under the following- authentication:
"War Department, July i, 1876.
"These regulations are a compilation of all rules for the govern-
ment of the Army, which were in force fFanuary 1, 1876, and are based
upon the Army Regulations of 1863, as altered or amended by orders,
circulars, decisions, and laws passed since the latter year. Compiled,
under the direction of the Secretary of War, by Capt. R. N. Scott,
U. S. Armv.
'•H. T. Crosby, Chief Clerk:'
This compilation was printed, but was not published to the Army,
and, notwithstanding the foregoing indorsement, was not an author-
ized code. The records of the War Department seem to furnish no
further information with regard to the circumstances of its prepara-
tion, but it may have been the final arrangement of a compilation made
by Mr. John Tweedale, which consisted of the regulations of 1863,
brought to date, agreeably to subsequent orders and amendments.
Just a month before this General Sherman had called attention to
the necessity of a revision of the Army Regulations, and had recom-
mended that the work of preparing a new code be assigned to General
Schotield. Fortunately, he said, the task would be rendered compara-
tiveh^ light by the fact that two systems of regulations had already
been prepared and were in print; one compiled in 1868-69 by a board
consisting of Generals Sherman, Sheridan, and Augur, and the other
compiled by the ''Marc}" Board'' in 1873. It would, he thought, be
preferable to have a single officer assigned to this work, rather than a
board, because a board would be apt to begin de novo and go again
over the very ground already well studied by previous boards.
General Schotield entered upon this work, agreeably to General
Sherman's recommendations, but no system of regulations prepared by
him was published. The first five articles of such a system were,
however, printed, and referred to heads of staff departments for
remark. One of the articles was as follows:
"The chiefs of the several staff corps, departments, and bureaus of
the Army sustain the twofold relation of chiefs of bureaus of the War
Department and chiefs of staff' to the General of the Army. They act
under the immediate direction and control of the Secretary of War, in
respect to all matters of accountability and administration not imme-
diately connected with military operations; they report directly to and
act under the immediate orders of the General in Chief in all matters
appertaining to the command of the Army; they are the repositories
of the laws and regulations for the government of the military service
744 DIFFERENT EDITIONS OF ARMY REGULATIONS.
and of the knowledoe which experience in their respective departments
ali'ords; the}' are the advisers and agents alike of the Secretary of War
and of the General in Chief, and upon th(^ proper exercise of their func-
tions, in this twofold relation, depends the harmonious working- of
the complex system of military administration and connnand.''
This was opposed by most of the heads of the staff departments, and
was defended by General Schotield. A part of th(> 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
in<lependence of the Executive, and jiractically reduce the Government to a single
political branch." (Pomeroy's Constitutional Law, 537, et seq.)
7G8 USE OF THE ARMY IN AID OB' THE CIVIL POWER.
enemies of the United States, or to keep the peace at the polls."
In the Army Appropriation Act of June 23, 1879, it was prescribed
that no mone}" appropriated by the act should be used ''for the sub-
sistence, equipment, transportation, or compensation of any portion
of the Army of the United States, to be used as a police force to keep
the peace at the polls at any election held within any State.'" And the
Army Appropriation Act of the following year contained a similar
provision, with a proviso to the effect that nothing- in it should be con-
strued to prevent the use of troops " to protect against domestic vio-
lence in each of the States on application of the legislature thereof or
of the executive when the legislature can not bo convened." This leg-
islation was adopted in view of the existing law, authorizing the use
of troops to keep the peace at the polls. ^ The latter was expressly
repealed Februar}- sth, 1894.
The use of the Army as n posse comltatus has undoul)tedly been, for
the present, done away with by the legislation of 1878. The Consti-
tution does not authorize its use in this wa}^ and there is no act of
Congress expressly authorizing it."^ Formerly it was regarded as
entirely legal that it should be so used. '"''ThQ p)osse comitatHS,'' said
Attorne}^ General Cushing, ''comprises every person in the district or
county above the age of fifteen years, whatever may be their occupa-
tion, whether civilians or not ; and including the military of all
denominations, militia, soldiers, marines, all of whom are alike bound
to obey the commands of a sheriff or marshal. The fact that they are
organized as military bodies, under the immediate command of their
own officers, does not in any wise affect their legal character. They
are still the jjosse coiiiitatus. (XXI Pari. Hist., pp. 672, 688. per Lord
Mansfield.)"^ It is to be noticed that Mr. Cushing held that the mili-
tar}^ forces were bound to obey the commands of the sheriff, as well as
those of the marshal, while Attornej^ General Devens seems to have
been of the opinion that even the marshal had the right to summon
^ See President Hayes's messages of April 29, 1879, in regard to the Army Appropri-
ation Act, and of May 12, 1879, in regard to a bill "to prohibit military interference
at the polls."
^By section 1984, Revised Statutes, commissioners charged with certain duties
under the Civil Rights legislutioh are empowered "to summon and call to their aid
the bystanders or yoi^^e coniitdttt.'i oi the proper county, or such portion of the land or
naval forces of the United States, or of the miUtia, as may be necessary to the per-
formance of the duty with which they are charged." It will be noticed that the
land and naval forces are here spoken of as quite distinct from the pos.'<e comUatus.
It is also to be noticed that the occasions for the use of troops under this section have
been greatly reduced by the repeal of the provisions of the Revised Statutes relating
to crimes against the elective franchise. And in no case has the commissioner a
direct control over the troops. This would be vmconstitutional.
*6 Opin. Atty. Gen., 473. See also 16 id, 163; and the instructicms of Attorneys
General Evarts and Taft to United States marshals, of date August 20th, 1868. and
September 7th, 1876, respectively.
USE OF THE ARMY IN AID t>F 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
<lesignated by Congress, it would be a contemptibly impotent force, for it would
be impossible for Congress to foresee all the conditions which might call for its use.
But Congress has not attempted to do this. The every-day use of the Army is not
even regulated by Congress, although this might, however imperfectly, lie done by
legislation. It has been wisely left to the control of the commander-in-chief. If
the use of the Army were absolutely dependent on the designation by Congress of
the purjioses for which it may be employed, it could not even protect all the prop-
erty of the United States under its charge, for Congress has not made it its duty to
do so, except in certain special cases. But, to create an army is to create it for the
ordinary purposes for which armies are used, and the power of the President as
commander-in-chief to use it for such purposes can not be questioned. The object
of the legislation of 1S78 was to })lace restrictions on the use of the Army in "execut-
ing the laws," but this had reference only to the ordinary civil and criminal laws of
the land. It was not intended to i)lace any restriction on its use for ordinary mili-
tary puri)0.ses. The Army is all the time used for purjjoses not prescribed l)y Con-
gress, and the President is doing this by virtue of his ])o\ver as commandi'i-iii-chief.
USE OF THE ARMY IN AID OF THE CIVIL POWER. 779
take care that the hiws be faithfull}^ executed. He is commander-in-
chief of the Army and Navy of the United States, and of the militia
of the several States when called into the actual service of the United
States. He has no power to initiate or declare a war either against a
foreign nation or a domestic State. But by the acts of Congress of
February 2Sth, 1795, and 3d of March, 1807, he is authorized to call
out the militia and use the military and naval forces of the United
States in case of invasion by foreign nations,^ and to suppress insur-
rections against the government of a State or of the United States. If
a war be made by invasion of a foreign nation, the President is not
only authorized but bound to resist force by force. He does not initi-
ate the war, but is bound to accept the challenge without waiting for
any special legislative authority. And whether the hostile party be a
foreign invader, or States organized in rebellion, it is none the less
a war, although the declaration of it be '''' unilateral.'^'' Lord Stowell
(1 Dodson, 247) observes: " It is not the less a war on that account., for
war may exist without a declaration on either side. It is so laid down
by the best writers on the law of nations. A declaration of war by
one country only, is not a mere challenge to be accepted or refused at
pleasure by the other." The battles of Palo Alto and Resaca de la
Palma had been fought before the passage of the act of Congress of
May 13th, 184:6, which recognized '"'' a state of war as existing hy the act
of the republic of Mexico.'''' This act not only provided for the future
prosecution of the war, but was itself a vindication and ratification of
the act of the President in accepting the challenge without a previous
formal declaration of war by Congress.
Under the Constitution the legislative and executive branches of the
Government sometimes have the power to act in the same subject-
matter. This was discussed in remarks, elsewhere made,' on the
source of authority of the Army Regulations, with reference to which
it was pointed out that, although Congress, under its power "to make
rules for the government and regulation of the land and naval forces,"
has primarily the authority to cover the whole field of army regula-
tions, yet, subject to this power, the President, as commander-in-chief,
has a jurisdiction over the same subject-matter — as repeatedly recog-
nized b}" the Supreme Court. So that, in the absence of legislation
regidating' any matter of army administration, the President's power
is effective. The guaranty clause makes it the duty of the United
* This, however, is a mistake. The legislation of 1795 related only to calling out
the militia, and that of 1807, which did provide for the employment of the land and
naval forces, made no mention of re{)elling invasion, but provided only for the sup-
pression of insurrection and ol)struction to the laws.
- Remarks on the Army Regulations and Executive Regulations in (General,
p. 703, ante.
780 USE OF thp: army in aid of the civil power.
States to g-uarantee, not onl}' a i'epu])lican form of government, but
against invasion, and, on the application of the State, against domestic
violence. Of course Congress can materially aid, and, to a g'reat
extent, control these guaranties l>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<l by the President to employ the military force under your command to
remove obstructions to the mails and to execute any orders of the United States
court for the protection of projjcrty in the hands of receivers appointed by such court,
and for preventing interruittion of interstate commerce, and to give such protection
to said railroad as will prevent any unlawful and forcible obstruction to the regular
and orderly oijeration of said road 'for postal, military, naval, and all other Govern-
ment service.' "
Similar letters were sent to the commanding generals of the Departments of the
Platte and of California for the protection of the Union Pacific and Central Pacific
Railways. (H. R. Doc, No. 9, part 2, 54th Cong., 2d sess., pp. 226, 233.)
7^)0 USE OF THE ARMY IN AID OF THE CIVIL POWER.
State, may lead to complications, under such conditions. The Federal
military power, employed in aid of the Federal civil power, may lind
itself acting within a State contrary to the wishes of the State's execu-
tive. But that can only happen when the State's executive fails to
recognize the fact that the Federal authority' extends to every part of
the United States, just as the State's authority extends to everj^^ part
of the State, and that wherever in the United States the authority of
the laws of the United States is resisted, to such place does their
authority to enforce their laws extend. The United States have as
full jurisdiction within a State for the execution of their laws, as the
State has for the execution of its own. They are not there l^y suffer-
ance, or comity, but as a constitutional right. ^ And if the resistance
to the laws be of such a chai'acter that it can not be overcome in the
ordinary way, the Federal executive has as much right to use the Fed-
eral military power to subdue it, as the State's executive has to use the
military power of the State to subdue a similar resistance to its own
laws.
The President's use of the Arni}^ in the execution of the laws on the
occasion of the Chicago strikes was commended by both the Senate
and House of Representatives, in resolutions adopted by those bodies.
The Senate resolution declared, "That the Senate indorses the prompt
and vigorous measures adopted ])y the President of the United States
and the members of his Administration to repulse and repress, by
military force, the interference of lawless men with the due process of
the laws of the United States, and with the transportation of the mails
of the United States, and with commerce among the States.
'"The action of the President and his Administration has the full
sj^mpath}' and support of the law-abiding masses of the people of the
United States, and he will be supported by all departments of the
Government and by the power and resources of the entire nation."
And the resolution of the House of Representatives was as follows:
'"'' Resolved, That the House of Representatives indorses the prompt
and vigorous efforts of the President and his Administration to sup-
press lawlessness, restore order, and prevent improper interference
with the enforcement of the laws of the United States, and with the
transportation of the mails of the United States and with interstate
commerce; and pledges the President hearty support, and deems the
success that has already attended his efforts as cause for puljlic and
general congratulation."
These were very important regulations, indicating, as they do, the
understanding at that time of the two Houses of Congress with refer-
1 Ex parte Siebold, 100 U. S., 394.
USE OF thp: army in aid of the civil power. 791
ence to the power of the President to use the military forces of the
United States in the execution of the laws; although the understanding
probably was that their use was pursuant to the statutory authority
contained in the Revised Statutes. There was no question as to the
source of the authority.
This use of Federal troops was, however, also in accord with the
views of the Supreme Court in the Neag'le case, as to the power of the
President. Or, as it has been elsewhere expressed: ''The President
is, of course, to take care that the laws are faithfully executed. But
how? By what means? Only by such means as the Constitution and
laws themselves have given him power to employ. That is, by caus-
ing proceedings to be instituted according to law, against those who
violate the law, and by employing whatever force may be necessary to
overcome all resistance that is offered to their execution."^
The President's constitutional duty to take care that the laws are
faithfully executed must be carried out by the means placed in his
hands by or under the Constitution. If Congress does not prescribe
means, he must use such means as the Constitution supplies him with.
These means are not specifically set forth in the Constitution. They
are incidental to and implied in his general powers. Nor is such a
conclusion unauthorized by the character of the instrument. In the
language of Chief Justice Marshall, "A constitution to contain an
accurate detail of all the subdivisions of which its great powers will
admit, and of all the means by which they may be carried into execu-
tion, would partake of the prolixity of a legal code, and could scarcely
be embraced 1)y the human mind. It would probably never be under-
stood bj^ the public. Its nature, therefore, requires that only its
great outlines should be marked, its important objects designated and
the minor ingredients which compose those objects be deduced from
the nature of the objects themselves. That this idea was entertained
by the f ramers of the American Constitution is not only to be inferred
from the nature of the instrument, but from the language."^
By the last clause of the legislation of 1878 it was prescribed that
no money "appropriated by this act" should be used to pay the
expenses incurred in the employment of. any troops in violation of it.
This provision related, of course, only to the period covered by the
appropriation act in which it is found. Congress may, by disbanding
the Armv, render it impossible for the President to resort to his con-
stitutional power as executive and commander-in-chief of employing
the Army in aid of the civil power, in the execution of the laws, or
^ Paine, J., In re Kemp, 16 Wis., 414. See also Story, COum., .^eci-. 1489-1493; and
Kent's Commentaries, vol. I, p. 282.
-McCulluch r. Md., 4 W., 407.
792 USE OF THE ARMY IN AID OF THE CIVIL POWER.
may couple an appropriation for the support of the Army with a con-
dition as to the use of the money appropriated; but, if it be true that
the Constitution directly vests the President with the duty and power
we have been discussing, it must follow that Congress can not make
the exercise of such power illegal. It may prevent its exercise, but
it can not make it illegal.
The f ramers of the Constitution relied on the control of Congress
over appropriations as the great safeguard against a misuse of the
Army. It was believed that to refuse to vote supplies would be to
disband the Army. We have seen that for a short time the Army has
been maintained without such vote. But, nevertheless, this was the
safeguard relied on, and there was no attempt to create another bj^
investing Congress with direct control over the President in the dis-
charge of his constitutional duty to take care that the laws be faith-
fully executed.
There is not now any fear of an abuse of this power. In the early
days of our history a ''standing army" was regarded with fear. It
was natural that the f ramers of the Constitution, with their knowledge
of the past and anxiety for the future, should have this fear. But,
with our experience, is it reasonable ?^ What fair-minded man can
1 Mr. Justice Miller, in his Lectures on the Constitution, says that the belief, which
was entertained by some at the time of the adoption of the Constitution, that there
was danger in the great power vested in the Executive, though natural enough at
the time, was a very great mistake; that the nearer we approach to individual
responsibility in the Executive, the nearer will it come to perfection; that of the
three branches, the executive has l)een the must shorn of 'the powers granted it by
the Constitution; and that of all the delusive ideas, or fallacies, that ever entered
anybody's brain, the most unfounded is this — that any President can ever make
himself a perpetual dictator, either in our time or generation or in those which are
to come.
See also Foster's Commentaries on the Constitution, page 242, et seq.
A most remarkable encroachment on the constitutional powers of the President
was the legislation contained in the second section of the Army Appropriation Act,
of March 2, 1867, whereby it was presci-ibed:
"That the headquarters of the General of the Army of the United States shall be
at the city of Wasliington, and all orders and instructions relating to military opera-
tions issued 1)y the President or Secretary of War shall be issued through the General
of the Army, and, in case of his inability, through the next in rank. The General
of the Army shall not be removed, suspended, or relieved from command, or assigned
to duty elsewhere than at said headquarters, except at his own request, without the
previous approval of the Senate; and any orders or instructions relating to military
operations issued contrary to the recjuirements of this section shall be null and void;
and any otKcer who shall issue orders or instructions contrary to the provisions of
this section shall be deemed guilty of a misdemeanor in office; and any officer of the
Army Avho shall transmit, convey, or obey any orders or instructions so issued con-
trary to the provisions of this section, knowing that such orders were so issued, shall
be liable to imprisonment for not less than two nor more than twenty years, upon
conviction thereof in any court of competent jurisdiction."
This provision, although, as the President declared, it deprived him of his consti-
tutional functions as commander-in-chief of the Army, he was com])elled to counte-
nance, or otherwise, l)y withholding his signatui'o from the act, defeat necessary
a])proi)riations. But, while thus sanctioning it, he did not (juietlj* snl)niit to it. Thus
we lin<l him, by proclamation of Seotember 3d, TSOT, declaring that "all officers of
USE OF THE ARMY IN AID OF THE CIVIL POWER. 793
now say that our standing Army is a menace, instead of a protection,
to our institutions? Is not what Macaulay wrote applicable in sub-
stance to our condition also!* "It was proved b}' experience that, in
a well-constituted society, professional soldiers may be * * * sub-
missive to the civil power. " * * It is perhaps because the army
became thus gradually, and almost imperceptibly, one of the institu-
tions of England, that it has acted in such perfect harmony with all
her other institutions, has never once, during a hundred and sixty
years, been untrue to the throne or disobedient to the law, has never
once defied the tribunals or overawed the constituent bodies.""
Such a spirit our Army has inherited. It has never questioned its
subordination to the civil power in time of peace; but, on the con-
trary, it has been taught, in the language of the Army Regulations of
1825 (prepared by General Scott), that, "Respect and obedience to
the civil authorities of the land, is the duty of all citizens, and more
particularly of those who are armed in the public service." ^
If there was reason for the legislation of 187S, in the use to which
the Arm}' had then been put by the Executive, it threatens us with no
danger, because the conditions can not recur.
the Army * * * of the United States, in accepting their commissions under the
laws of Congress and the rules and articles of war, incur an obhgation to observe,
ol;ey, and follow such directions as they shall from time to time receive from the
President or the General, or other sujierior ofhcers set over them, according to the
rules and discipline of war," and enjoining upon ofhcers of the Army (directly, and
not through the medium of the connnanding general of the Army,) to assist and sus-
tain the courts and other civil authorities of the United States in a faithful adminis-
tration of the laws thereof, and in the judgments, decrees, mandates, and processes
of the courts of the United States. The legislation was repealed in 1870.
^ See also the Army Regulations of 1847.
Il^DEX.
Abatement, plea In, 1995.
Abseure: (See Leave of absence.)
From parade, etc., 33 A. W.
Leave of, extra-duty pay for work while on, 1332.
Of officers, statement of reasons for, 7 A. W.
On furlough —
Arrest during, 97, note.
In line of duty, 1620, 1021.
Right to pension for disability during, 1620-
1623.
On pass, in line of duty, 1625.
Without cause, 1841.
With leave, cost of telegrams applying for, 477.
Absence without leave:
Effect of acquittal of charge of desertion on,
1093, 1359.
For le.ss than a day, 378.
From parade, how charged, 376.
From post or command, 374.
From quarters only, 374.
Making good time lost, 375.
Officer, how charged, 377, note.
Pay and allowance accruing during, 375, 378.
Placing on full duty a defense to charge of,
377.
Of prisoner of war, 2064.
Of war department clerk, 800.
Reward for apprehension, etc., 1075.
Stoppage on account of, 2385.
Summary discharge of officer for, 1135.
Transportation, etc., 1070.
Absented himself, meaning of term, 321,322.
Abusive lang'uage to commanding ofBcer, 14,143.
Academy. (See Military Academy.)
Acceptance:
Of pardon, 1866, note.
Of resignation, 2183-2191.
Accomplice, status of, if admitted to testify, 379.
Accountability of ofttcer, 380-383:
As bailee, 382.
Distinguished from amenability to trial, 380.
For arms, etc., 10 A. W.
For deficient or damaged stores after separa-
tion from service, 383.
For payment on forged voucher, 381, 1410.
Payments on false vouchers, 1123,1124.
When Tiot to be enforced, 380.
Accountini: for public money, 2081-2084.
Accouterments, penalty for losing, spoiling, etc.,
17 A. W.
Accounts: (See Pay acrounts.)
National Volunteer Soldiers' Home, 2341,2342,
2343.
Soldier's Home, National Volunteer, 2341-2343.
-Accretions to land, property ill, 1559.
Accused:
Amenability of, while awaiting trial, 1030.
Authority of courts-martial over, 997.
Can not take advantage of error of court, when,
1308, note.
Competency of, as witness in own behalf, 1300,
2461.
Competency of wife of, as witness, 2462.
Declining to plead, 1999.
Double assignment pay account, 1893.
Duties of judge-advocate toward, 1.533,1534.
Escape of, during trial, 1014.
Insanity of, 1515.
Judge-advocate hostile to, 1529, 1.530.
Not in general to be placed in irons while on
trial, 1047.
Physical restraint of, while on trial, 1047.
Plea and statement of, inconsistent, 1990, 1992.
Presence of —
At trial by courts-martial, 1048.
On revision of record, 2252.
To be noted in record, 2136(/.
Recommendation to clemency, 2132.
Removal of, to place of trial, 76 A. W.
Right to have witnesses summoned, 2467,2468.
Standing mute, 89, A. W.
Testimony criminating himself, 1020.
Variance in name of, 2443.
Accuser or prosecutor:
Department commander as, 72 A.W.; 186-188,
190.
What constitutes, 186-188.
Acquittal:
Disapproval of, 1062, 2245.
Of larceny, disposition of money on, 1565.
Loss of property caused by desertion, 1069.
Payment of reward upon, 1074.
Acting assistant commissary, pay of, 1910.
Acting assistant or contract surgeons:
Act of May 12, 1898, 389, 390.
Amenable to military jurisdiction in time of
war, 384, 385.
Authority to employ, 385, 388, note.
Burial expen.ses, 388, note.
795
796
INDEX.
Acting: assistant or contract surireons — Cont'd.
Can not be compi-lled to remain in service after
expiration of contract, 391.
Civilian physician, not serving with a military
force, etc., .388.
Commutation of quarters, 389.
Compensation, 389.
Duty, pay, etc., 38.5.
Enlisted men employed as, 386.
Entitled to per diem allowance, etc., as witness
on courts-martial, 384.
Entitled to purchase fuel from Quaitermaster's
Department, 390.
Have no military rank or status, 384.
Mileage, 388, note.
Not eligible for medal of honor, 165C.
Not eligible to detail as a member of a military
court, 384.
Not entitled to benefit of act of March 3, 1885,
387.
Not military officers, noncommissioned officers,
or privates, 384, 385, 388, note.
Not subject to military orders in general, 384.
Acthiif hospital ste»var(ls. 1447, 1448.
Action of rcvk'nintr authority: (See Reviewing
authority.)
Authentication of, 2233.
Modification of, 2235,2236.
Notice of, 2244.
Promulgation of, 2235-2237, 2241-2244.
Recall of, 2235-2236.
Reconsideration of, 2241.
Revocation of, 2243.
Additional estimates, Improreiucnt of rivers and
harbors, 1494.
Adjournment: (See Courts-martini and Onirts-mar-
tial general.)
Authentication of, 2136k.
From day to day, authentication of, 392.
Sine die, 394, 395, 1004, 1005.
Statement of, in record, 393.
To quarters of sick witness, 395, note.
Adjutant-ireneral:
Detached service, notice of to, 1848.
District of Columbia, 1830.
Of militia, appointment as assistant to, 1816.
Advertisement. (See Contract.)
Affidavit:
Affecting appointment of courts-martial, 187
note.
As evidence on courts-martial, 1292.
Before jtidge-advocate, 1554.
Before what officers taken, 1800,1802.
Board of survey may receive, 533.
In executing contracts, 967.
Justifications of sureties, 639, 540, 5.51, 553.
Age:
Enlistment, adults, 1258, note, 1276, 1283.
Enlistment, minors, 1258, note.
Enlistment of persons over, 12.58.
Limit as to reenlistment, 215'1.
Limit of, in appointments from civil life, 433.
Agent, Indian: (See Indian Agent.)
Not guardian of Indian minor for purpose of
enlistment, 1265.
Agreement, oral, 880, 883.
Ald-de-i'amp:
Additional, authorized by act of August 5, 1861,
397.
Civilian acting as, status of, 399.
Effect of rank of, on courts-martial, etc., 396.
Officer a.ssigned to duty according to brevet not
entitled to, 612.
Pay of, 398.
Rank, 396, 397.
Alarms, false, 41 A. W.
Alaska:
Citizenship of inhabitants of, 400.
Liquors, introduction of, into, 1502.
Relief of sufferers in, 478.
Term Indian country as applied to, 1502.
Use of army in aid of civil power, 493.
Allen:
Citizenship, right to acquire by military serv-
ice, 401, 421.
Citizenship, service in Navy, 402.
Competent to bid on government contract, 405.
Employment of, on government works, 406.
Enlistment in and discharge from army does
not make citizen of, 736.
Liberty of, to display flag, 404.
Minor —
Enlistment of, 1270, 1271.
Naturalization of, 1271 .
Promotion —
Enlisted, not eligible for, 403, 421.
Soldier —
Appointment of, as officer, 421.
Alimony, claim for, stoppage of pay, 2383.
Allotment of moneys appropriated, 2270.
Allowances. (See Pay and Allowance.)
Bounty as distinguished from, 603.
Change of station, 1945-1951.
Commutation of quarters, 1941-1943.
Distinction between pay and, 1894.
Forfeiture of, 1381, 1383, 1397, 1398, 1403, 1961, 1962
Forfeiture by sentence, 1961,1962.
During leave of absence, 1.593.
Not affected by forfeiture of pay, 1894.
Officers —
Awaiting retirement, 1952.
Detailed as college professor, 1915.
Families of, 1918.
Sergeants of ordnance, 1864.
Travel, 1945-1951,1963-1968.
To oflicer in charge of post exchange, 2016.
Amendment:
Of proceedings, 2242, note.
Of record of service, 2147.
Of record. (See Herinion.)
Ammunition:
Embezzlement of, 60 A. W.
INDEX.
797
Amuiunitioii — Continued.
Issues to —
Executive Departments, 2096.
Indian agent, 2096.
Larceny of, 60 A. W.; 113.
Misappropriation of, 60 A. W.; 116.
Penalty for waste of, 16 A. W.
Receiving in pledge, etc., 60 A. \V.
Amnesty procliiinatloii:
Affecting jurisdiction of court, 1998.
Amnesty to deserters:
No law extending, 1121.
Animals:
Claim for inspection of, at Honolulu, 797.
Penalty for losing, etc., 17 A. \V.
Transportation of, 1952, 1953.
Any of the United States:
Meaning of term, 101.
Appeal :
From regimental courts, 30 A. W.; 37.
Significance of the term in military law, 407.
Applications for pardon, 1876, 1877.
Appointing power of President, 417, 431, 433.
Appointment:
Acceptance, 408.
Age limit, 433.
Alien soldier to be officer, 421.
As cadet of unemanclpated minor, 643.
Assistant surgeons to rank of captain, 414.
By head of executive department, 419.
By regimental commander, 420.
Cadets, 424, 643-653.
Chaplain, from civil life, 433.
Civil life, construction of term, 432, 433.
Civilian—
As second lieutenant, 415.
As captain under special authority of Con-
gress, 412.
Clerk as post noncommissioned staff officer, 811.
Commissary-sergeant, 838.
Confirmation of brevet, 610.
Consular service, 1825, 1826.
Courts-martial in time of war, 73 A. W.
Date from which it takes effect, 408.
Dating back to date of vacancy, etc., 413,417.
Diplomatic .service, 1825, 1826.
Dismissal of officer by appointment of suc-
cessor, 1206-1209.
During recess of Senate, 558,559.
Enlisted men —
After marriage or discharge, 428.
Examination of for, 1321.
Qualifications for examination, etc., 421-423,
425.
Examination —
For promotion, 421^23, 429.
Limitation as to number of, 429.
Physical, 429.
From civil life, 432, 433.
Garrison courts, 82 A. \V.: 214-218.
General court-martial, 72-74 A. W.; 182-192.
Guardian over officer, 1040.
Inferior officers, 410.
Appointment — Continued.
Judge-advocate, from civil life, 433.
Lance sergeant not eligible for appointment as
second lieutenant, 411.
Militia officers, 1734, 1736.
Noncommissioned officers—
As second lieutenants, 411.
Not eligible for, after discharge, 426.
On detached .service, 411.
Oath of office to be taken, 1804-1810.
Of reporter, 2168.
Ordnance officer, 1863.
Pay, date of commencement under, 408.
Paymaster, from civil life, 433.
Physical disqualification, 427.
Power of, when exhausted, 417.
Principal musician not eligible for, 411.
Rank, 408, 409.
Reappointment of dismissed officer, 1883.
Recess, 430.
Regimental —
Officers of volunteers, 431.
Quartermaster, 419.
Staff officers, 418.
Relative rank, 408,409.
Restoration by new, 2042.
Retired officers as volunteer officers, 2211.
Retroactive, 417, 1851.
Successor —
To noncommissioned officer in desertion, 2151.
To vacancy caused by illegal sentence, 2152,
To civil office, 1812-1837.
To vacancy caused by dismissal of officer, 337,
note.
Transfer from Volunteer to Regular Army, 432.
Volunteer officers, 431-433,2451.
With pay and rank dating back, 417.
With view to retirement, 416.
Appraisement of land for national cemetery, 1763.
Appropriation: (See Public moneij and Treasury
Department. )
Act, limitation clause confined to fiscal year to
which it pertained, 893.
Act, proper construction of, 2359.
Application of, 2300-2302.
Burial expenses of civilian employee, 452.
Can not be diverted from purposes expressed in
. the act, 438-442, 445, 446, 448, 449, 451, 466, 469,
472, 477, 478.
Can not be transferred to credit of another ap-
propriation, 457.
Can not be used to supplemen: another appro-
priation, 451.
Clerical compensation, 453, 474.
Construction of barracks, quarters, etc., of a
permanent nature, 481.
Contingencies of the Army, 444, 446, 447, note,
448, 451-455.
Contingent expenses, meaning of term, 452,
note.
Contract —
Delivery of supplies, etc., under, 437.
In excess of, 886, 887, 892.
7^.)s
INDEX.
Aiipropriutioii — Continued.
Contract— Continued.
Made in absence of, 847, 888.
Customs fund, military government in Porto
Rico, 480.
Defraying expenses of United States court, 447.
Disbursement of, under direction of Secretary
of War, 112.5.
Emergency fund, 456.
Expenditure of—, 471, 2105, 2107, 2267.
For right of way, 2267.
On lands over which jurisdiction had not
been ceded, 471.
Expenses of courts-martial, 444.
Extension of, 470.
For arms, etc., for militia, 1738, 1739, 1741.
For fuel and lights, 462.
For maintaining national cemeteries, 1765.
For payment of claim, 765.
Hire of buildings, 2302.
How long available, 436, 437.
Implied authority for use of, 443, 444, 473, 475,
476, 477, note, 479.
Inspection of disbursements of, 1128.
Insurance, 455.
Lease can not be made in anticipation of, 470.
Lights for Executive Mansion grounds, etc., 465.
Made in conformity with estimates, 434, 435, 481.
Medical attendance of civilian employees, 448,
449.
Mileage, 444, 445, 447.
Money donated to the United States, 482.
Monuments, etc., at Gettysburg, 461.
Omission of extra-duty pay provision from, 460.
Omi.s.sion of restriction in former appropria-
tion, 463, 464.
Permanent, 437, 464, 894.
Permanent, use of unexpended balance of, 894.
Placing of, to credit of another department, 955.
Public roadways, 467, 469, 472, 475.
Purchase of private property from, 443.
Recruiting service, 445, 476.
Reimbursement for private relief i.ssued prior
to passage of act. 478.
Relief of cyclone suffers in Porto Rico, 456.
Target practice, 446.
Telegrams, payment of, 476, 477.
To meet contingencies, 456.
Transfer of property purchased from, 458.
Transportation —
Of Indians, 454.
Of remains of oflacers and enlisted men, 479.
Traveling expenses of officers attending courts,
447.
Unexpended balances, 437, 468.
When cumulative, 451, note.
When inadequate, 450, 4.59.
When meaning is doubtful, 451, note.
When specific, 450, 4.51, 4.57, 474.
Approval:
Of expenditure after made, 853.
Of findings of—
Courts-martial, 2228.
Approval — Continued.
Of findings of — Continued.
Examining board, 1323.
Of sentence —
By general commanding Army, 333,334.
By President, 105, 106, 108 A. W.; 2227.
By reviewng authority, 2227-2229,2236,2237,
2239-2244.
Department commander relieved, 334.
Department discontinued, 333.
Form of, 324.
In absence of department commander, 325.
Of forfeiture, 1387, 1388.
Officer commanding for time being, 104, 109
A. W., 326, 327, 329-331, 333-335.
Order promulgating, 332.
Post command distributed in department,
330.
Qualifications of officer commanding for time
being, 335.
Revocation of, 1202.
Separate brigade merged in division, 326,329.
Transfer of prisoner before, 328.
Arbitrary punishment. (See Disciplinary punish-
ment.)
Arms or ammunition:
Accountability for, 10 A. W.
Disposition of unserviceable, issued to militia
1740.
Embezzlement of, 60 A. W,
Exchange of, with States, 2104.
For militia when furnished by State, 1748.
His, construction of term, 57.
Issue of, for use of —
Colleges, 831-837.
High school, 836 note.
Militia, 1737, 1738, 1741.
Issues of, to —
Executive Departments, 2096.
Indian agent, 2096.
Larceny of, 60 A. W.; 113.
Misappropriation of, 60 A. W. ; 116.
Penalty for losing, spoiling, etc., 17 A. W.
Reccinng in pledge, etc., 60 A. W.
Returns of, by colleges, 835.
Right, title, etc., to, illegally sold, 2275.
Sale of, existing laws relating to, 2273.
Seizure of, by army officer, 2273, 2275.
Army:
Absence in, as to residence, 2183.
Emplojinent of, for civil purposes—, 483-493.
Sec, also. Appendix B.
Apprehension of robbers, etc., in Indian Ter-
ritory, 492.
Attitude of military until actually employed,
488.
Detail of officers to civil duties, 489, 491.
Enforcement of laws in Alaska, 493.
In execution of civil process, 487, 490, 493.
Military may not combine to make arrests.
etc., except by order of President, 488.
On posse comitatus, 486, 487.
President, powers of, 483-485, 487-490, 492, 493.
INDEX.
799
Army — Continued.
Employment of, for civil purposes— Continucil.
Proclamations by President, 487, notes.
Removal of trespassers, etc., from Indian
country or reservation, 487.
To arrest Indians charged with crime, 4ST,
490.
To protect State, etc., 483-485.
To remain under direction and orders of
President, 485.
Under Article IV, see. 4, of Constitution, 4S3,
484, 485.
Volunteering to intervene in civil disturb-
ance, 488.
General staff of, defined, etc., 1435.
New appointment to, after dismissal, 2323.
Officers —
As sureties, 536.
Holding civil office, 1812, 1815-1837, 1814-1816.
Holding office in a Territory, 1824.
Residence, 2177, 2178, 2180-2182.
Vacating commissions, 1812-1815, 1822, 1S24-
1827, 1832, 1833, 1835.
Paymaster's clerk not part of, 1970.
Promotion, 403.
Regular, as distinguished from volunteer, 2160.
Restoration to, 1869, 1870.
Revised Statutes relating to, when operative,
2247.
Volunteer —
Desertion from, 1098.
De.se rters upon disbandment of, 1160.
Discharge of soldier after disbandment of,
1161.
Meaning of term, 2449.
Status of officers and enlisted men upon dis-
bandment of, 1222.
Army register, names of volunteer officers, entry
on, 2448.
Army regulations: (See Appendix A.)
Acts of Secretary of War to be received as acts
of Executive, 494, note.
As distinguished from statutes, 494.
Authority of President to make, 494, note, 499.
Authority to modify, 406, note, 499.
Binding force of, 499.
Breach of, how punishable, 497.
By President, as commander-in-chief , 491, note,
499.
Can not authorize what statute law prohibits,
389.
Can not contravene statute, 494.
Can not legislate, 495.
Classification of, 499.
Defined, 494, note.
For which there is no statutory authority, 501.
Have not the quality or effect of statutes, 496.
Juri.<diction of Executive limited by Congress,
500.
Made pursuant to statute, 499.
Not in general retroactive, 494.
Property of War Department, application, 2286.
Solitary confinement, fixed by, 2345.
Army regulations— Continued.
Statutory sanction not necessary, 496.
The giving and taking of blank receipts, 498.
Which have received the sanction of Congress,
499.
Arrears to United States:
Stoppage on account of, 2387.
Arrest :
As affecting right to pay, etc., 509.
Breach of, by officers, 65 A. W.; 170-173.
Breach of, to the prejudice, etc., 159.
By civil authority—, 59 A. W.; 94-106.
Application, 95, 100, 103.
Civilian, on reservation, 103.
In time of war, 105.
Laws of the land, meaning of, 96. note.
Offenses, 96.
While on furlough, 97, note, 617.
By order of the President, 488.
By Superintendent of Military Academy, 520.
Bv superintendents of national cemeteries
1766.
Claim for —
Loss of wages by, 770.
Wrongful, 770, 786.
Effect of, on right to pay, 515-517.
Entrance into private dwelling to effect, 513.
Exemption from arrest for debt, 618.
For offenses committed before enlistment, 106.
In Indian country, 1505-1507.
Indians charged with crime, 487, 490.
Indian scout, pay of, during, 517.
Irons on prisoners, 1465, 1466, i
Limits of, 604.
Not essential to military trial, 502.
Not involved in status of suspension, 2414, 2421.
Of civilians by the military, 487, 488, 490, 492,
493.
Of deserter —
In foreign territory, 1096.
Reward for, 1071-1091. (See Desertion.)
Of Indians in Indian country, 1507.
Of member of court-martial, 507.
Of officers —
At remote military posts or stations, 71 A. W.;
181.
Charged with crimes, 65 A. W.
Manner of making, 602.
Of public servants while on public duty, 518,
note.
Of witness attending court-martial, 510.
Officer not entitled to demand, 502.
Officer under, may prefer charges, 508.
On land to which exclusive jurisdiction has
been ceded to the United States, 521.
Pay and allowances of soldier in, 1896, 1928,
1969.
Pay of officer in. 1896.
Period of, not required to be made good to
service, 514.
Persons introducing liquors into Indian coun-
try, 1506.
Protracted, ground for mitigation of sentence,
70 A. W.; 506.
800
INDEX.
Arrest — Con t i n u etl .
Soldier —
Not in general to be ironed, 511.
What work may be required of, in, 512.
Status of soldier released on bail, 515,
Termination of, by putting on duty, 505.
While on furlough, 517.
Who may place commissioned officers in, 503.
Without a warrant, 519.
Use of irons on prisoners, 1465, I-IOG.
Arsenal:
Is a post, 1333.
Master machinist at, 1822.
Springfield, 1822.
Arson :
Death sentence for, confirmation of, 105 A. W.
In time of war, insurrection, etc., -58 A. W.; 88.
Articles of incorporation:
Authentification of, 623.
Articles of war :
Absence from parade, etc., 33 A. W.
Absence from post or command, 32 A. W.
Absence of officers, statement of reasons for,
7 A. W.
Absence without leave, 32, 3-1 A. W.
Accountability for arms, etc., 10 A. W.
Accouterments, penalty for losing, spoiling,
etc., 17 A. W.
Accuser or prosecutor, 72, 73 A. W.
Alarms, false, 41 A. W.
Ammunition —
Embezzlement of, 60 A. W.
Larceny of, 60 A. W.
Misappropriation of, 60 A. W.
Penalty for waste of, 16 A. W.
Receiving in pledge, etc., 60 A. W.
Appeal, 30 A. W.
Approval of sentence—, 104,109 A. W.
Officer commanding for time being, 104. 109
A. W.
Arms, etc. —
Accountability for, 10 A. W.
Embezzlement of, 60 A. W.
Larceny of, 60 A. W.
Misappropriation of, 60 A. W.
Penalty for losing, spoiling, etc., 17 A. W.
Receiving in pledge, etc., CO A. W.
Arrest —
Breach of, by oflficers, 65 A. W.
By civil authority, 59 A. W.
Dismissal of officers for breach of, 65 A. W.
Of officers —
At remote military posts or stations, 71 A. W.
Charged with crimes, 65 A. W.
Arson —
Death sentence, confirmation of, 105 A. W.
In time of war, insurrection, etc., .58 A. W.
Assault, etc., in time of war, insurrection, etc.,
58 A. W.
Assault —
To commit rape, death sentence, confirmation
of, 105 A. W.
Upon superior officer, 21 A. W.
Articles of war— Continued.
Behavior of members of courts-martial, 87 A. W
Breach of arrest, 62, 65 A. W.
Burglary —
Death sentence, confirmation of, 105 A. W.
In time of war, insurrection, etc., 58 A. W.
Camp retainers, 63 A. W.
Captured stores, 9 A. W.
Certificate, false, 13, 60 A. W.
Certificate of discharge not necessary to dis-
charge, 4 A. W., note.
Challenges —
Courts-martial, 88 A. W.
To duels, 26-28 A. W.
Charges, copy of, officer entitled to, 71 A. W.
Civilians —
Penalty for waste, etc., of jiroperty of, 55
A. W.
Reparation for injury to person and property
of, 54 A. W.
Claims, false, 60 A. W.
Clothing, etc. —
Accountability for, 10 A. W.
Embezzlement of, 60 A. W.
Larceny of, 60 A. W.
Misappropriation of, 60 A. W.
Penalty for losing, spoiling, etc., 17 A. W.
Receiving in pledge, etc., 60 A. W.
Command, different corps joining, 122 A. W.
Commander, department, accuser or prose-
cutor, 72 A. W.
Commanders of corps, appointment of courts-
martial by, 72,81 A. W.
Commander.s, regimental, court appointed by,
81 A. W.
Commanding officer —
Disrespect to, 20 A. W.
Not to be interested in the sale of victuals,
etc., 18 A. W.
Compelling surrender, 43 A. W.
Conduct of officers and soldiers in quarters, etc.,
to be orderly, .55 A. W.
Conduct prejudicial to good order and military-
discipline, 62 A. W. v'
Conduct unbecoming an officer and a gentle-
man, 61 A. W.
Confinement —
Breach of, by officers, 65 A. W.
Dismissal of officers for breach of, 65 A. W.
Duration of, 70 A. W.
In penitentiary — , 97 A. W.
Lex loci, 97 A.W.
Of enlisted men, 66-70 A. W.
Of officers, duration of before trial, 71 A.W.
Of soldiers, 66 A. W.
Confirmation of death sentences, 105 A.W.
Confirmation of dismissals —
In time of peace, 106 A. W.
In time of war, 107 A. W.
Confirmation of field officers' sentences, 110
A. W.
Conlirniation of sentences, 108, 109 A. W.
Contempt, 86 A. W., 118 A. W., note.
INDEX.
801
Articles of war— Continued.
Contemptuous words, 19 A. W.
Continuances, courts-martial, 93 A. W.
Officer entitled to, 71 A. W.
Copy of record, party entitled to, 114 A. W.
Corps commanders —
Court appointed by, 81 A. W.
General court-martial appointed by, 72 A. W.
Corps, command of, when serving together, 122
A. W.
Correspondence with enemy, 46 A. \V.
Counterfeiting signature, 60 A. W.
Courts of inquiry-
Contempts of court, 118 A. W., note.
Composition of, 116 A. W.
Oath of members and recorder, 117 A. W.
Opinions of, 119 A. W.
Proceedings as evidence, 121 A. \V.
When and how ordered, 115 A. W.
Witnesses, 118 A. W.
Cowardice, etc., 42, 100 A. W.
Crimes during war, insurrection, etc., 58 A. W.
Crimes, fraud, etc., 60 A. W.
Crimes, soldiers charged with, 66 A. W.
Crimes, to prejudice of good order and military
discipline, 62 A. W.
Criminals, penalty for enlistment of, 3 A. W.
Damage to person and property, reparation for,
54 A. W.
Damage to property, penalty, 55 A. W.
Death sentences, 96, 105, 111 A. W.
Deceased officer's effects, 125, 127 A. W.
Deceased .soldier's effects, 126, 127 A. W.
Delivery of offender to civil authority, 59 A. W.
Department commander —
/ Accuser or prosecutor, 72 A. W.
Depositions —
Courts-martial, 90 A. W.
Deserters-
Penalty for enlistment of, 3 A. W.
To serve full enlistment, 48 A. W.
Desertion-
Advising, 51 A. W.
Limitation of prosecution in, 103 A. W.
Making good time lost by, 48 A. W.
Persuading, 51 A. W.
Punislunent, 47 A. W.
Resignation, when considered as, 49 A. W.
Destruction of property, penalty, 55 A. W.
Discharge certificate not necessary to discharge,
4 A. W., note.
Discharge —
How made and by whom given, 4 A. W.
Right of soldier to, 4 A. W.
Disclosing watchword, 44 A. W.
Dismissals—. 65, 99, 106, 107 A. W.
In time of peace, 106 A. W.
In time of war, 107 A. W.
Suspension of sentence. 111 A. W.
Disobedience of orders —
Of superior officer, 21 A. W.
Disorders, etc., who may quell, 24 A. W.
Disrespect to commanding officer, 20 A. W.
IflOOG— 01^— 51
Articles of war — Continued.
Disrespectful words, 19, 20 A. W.
Divine service, misconduct at, 52 A. W.
Division commander,. general courts-martial
appointed by, 73 A. W.
Drunkenness on duty, 38 A. W.
Duels, 26, 27, 28 A. W.
Duration of confinement, 70 A. W.
Duty-
Conniving at hiring to do, 37 A. W.
Drunkenness on, 38 A. W.
Hiring to do, 36 A. W.
Effects of deceased officers, 125, 127 A. W.
Effects of deceased .soldiers, 126, 127 A. W.
Embezzlement, 60 A. W.
Emoluments of officers, suspension of, 101 A.W.
Enemy —
Correspondence with, 46 A. W.
Giving intelligence to, 46 A. W.
Harboring, 45 A. W.
Misbehavior before, 42 A. W.
Protecting, 45 A. W.
Relieving, 45 A. W.
Enlisted men —
Effects of deceased, 126, 127 A. W.
Redress of wrongs of, 30 A. W.
Enlisting without discharge, 50 A. W.
Enlistment —
Oath of, 2 A. W.
Unlawful, penalty for, 3 A. W.
Equipments —
Embezzlement of, 60 A. W.
Larceny of, 60 A. W.
Misappropriation of, 60 A. W.
Receiving in pledge, etc., 60 A. W.
Escape of prisoners, permitted by officer, 69 A.W.
Evidence, records of courts of inquiry as, 121
A. W.
Failing to retire to camp, etc., at retreat, 35 A. W.
False alarms, 41 A. W.
Fal.se certificate — , 13, 60 A. W.
Penalty for making, 13 A. W.
False claims, 60 A.W.
False muster, penalty for, 5, 14 A. W.
False oath, 60 A. W.
False receipt, 60 A. W.
False returns, 8 A. W.
Field officer's courts, 80, 110 A. W.
Approval of sentences, 110 A. W.
Flogging, etc., 98 A. W.
Forcing safeguard, 57 A. W.
Forging signature, 60 A. W.
Fort, compelling surrender of, 43 A. W.
Fraud, embezzlement, etc., 60 A.W.
Fraud or cowardice, publication of officers for,
100 A. W.
Fraudulent enlistment, 50 A. W.
Frays, etc., who may quell, 24 A. W.
Funds, public —
Larceny of, 00 A. W.
Misappropriation of, 60 A. W.
Furloughs, who may grant, etc., 11 A.W.
Garrison, compelling surrender of, 43 A. W.
802
INDEX.
Articles of war — Continued.
Garrison courts-martial,
Appointment of, 82 A. W.
Jurisdiction, S3 A. W.
Oath of members, 84 A. W.
General courts-martial—
Appointment of — , 72-74 A. W.
By accuser or prosecutor, 72 A. W.
By commander of separate brigade, 73 A. \V.
By division commander, 73 A. W.
General courts-martial —
Appointment of —
By President, 72 A. \V.
In time of war, 73 A. W.
Approval of sentences, 104-109 A. W.
Behavior of members, 87 A. W.
Challenges, 88 A. W.
Composition, 75-79 A. \V.
Confinement in penitentiary, 97 A. W.
Confirmation of sentence, 109 A. W.
Contempts, 86 A. W.
Continuance, 93 A. W.
Copy of record, party entitled to, 114 A. W.
Death sentences, confirmation of, 106 A. \V.
Depositions, 91 A. W.
Dismissal of officers, 99 A. W.
Disposition of proceedings, 113 A. W.
Evidence, records of courts of inquiry as, 121
A. W.
Hours of session, 94 A. W.
J udge-advocates —
Appointment of, 74 A. W.
Duties of, 90 A. W.
Limitation of prosecution, 103 A. W.
Marine and Regular Army officers associated
on, 78 A. W.
Members of, 75 A. W.
Oath of judge-advocate, 85 A. W.
Oath of members, 84 A. W.
Oath of witness, 92 A. W-.
Offenses committed in time of war, etc., 58
A. W.
Officers triable by, 79 A. W.
On what courts regular officers may sit, 77
A. W.
Pardon and mitigation, 112 A. \V.
Proceedings to Judge-Advocate-fieneral, 113
A. W.
Rank of members, 79 A. \V.
Requisite number, not at post, 76 A. W.
Sentence, in time of war, etc., 58 A. VV.
Sentence of death, 96 A. W.
Sentences of dismissal, confirmation of, 106,
107 A. W.
Suspension of officer's i)ay, 101 A. W.
Voting, order of, 95 A. W.
General officers, confirmation of sentence, 108
A. W.
Gestures, provoking, 25 A. W.
Giving intelligence to the enemy, 46 A. \V.
Guard, etc., quitting without leave, 40 A. \V.
Harboring the enemy, 45 A. W.
Hiring to do duty, 36, 37 A. W.
Articles of war — Continued.
Horse, penalty for losing, spoiling, etc., 17 A.W.
Hours of session for courts-martial, 94 A. \V.
Injury to person and i)roperty, reparation for,
54 A. \V.
Injury to property, penalty, 55 A. W.
Insurrection, rebellion, etc., crimes during, 58
A. W.
Intoxicated persons, penalty for enlistment of,
3 A. W.
Judge-advocates —
Appointment of, 74 A. W.
Duties of, 90 A. W.
Oath of, 85 A. W.
Judge-Advocate-General, proceedings of gen-
eral courts-martial to, 113 A. W.
Language, disrespectful, 19, 20 A. W.
Larceny —
In time of war, insurrection, etc., .58 A. W.
Public property, 60 A. \V.
Limitation of prosecution, 103 A. W.
Lying out of quarters, 31 A. W.
Manslaughter —
In time of war, insurrection, etc., 58 'A. W.
Mayhem, in time of war, insurrection, etc., 58
A.W.
Members of courts-martial, behavior of, 87 A. W.
Military stores —
Accountability for, 10 A. W.
Penalty for loss or damage to, 15 A. W.
Militia-
Rank of officers, 124 A. W.
Subject to Articles of War, 64 A. W.
Minors, penalty for enlistment of, 3 A. W.
Misappropriation, etc., of public property, 00
A. W.
Misbehavior before the enemy, 42 A. W.
Misconduct at divine service, 52 A. W.
Mitigation of sentences, 112 A. W.
Money, public —
Embezzlement of public, 60 A. W.
Larceny of, 60 A. W.
Misappropriation of, 60 A. W.
Monthly returns of regiments, etc., 7 A. W.
Murder, in time of war, insurrection, etc., 58
A. W.
Muster —
Certificates furnished mustering officer, as to
absences, etc., 12 A. W.
False, penalty for, 5, 14 A. W.
Penalty for taking money, etc., for, 6 A. W.
Mutiny-
Penalty for, 22 A. W.
Penalty for failing to quell, etc., 23 A. W.
Oath-
Courts of inquiry, members and recorder, 117
A. W.
False, 60 A. W.
Judge-advocate, 85 A. W.
Members of courts, 84 A. W.
Members of courts-martial before civil courts,
84 A. W., note.
Of enlistment, 2 A. W.
INDEX.
803
Articles of war— Continued.
Oa til— Continued.
Protane, 53 A. \V.
Witness, 92 A. W.
OfEenders, surrender of, to civil authority, .59
A. W.
Offense, two trials for same, 102 A. W.
Officer —
Arrest of, 65 A. W.
Commanding, approval of sentence l)y, 104,
109 A. W.
Deceased, effects of, 125, 127 A. W.
Deprival of .swords of, 65 A. W.
Dismissal of, 65, 99, 106, 107 A. W.
Dismissal of, for breach of arrest, 65 A. W.
Confirmation of sentences of, 108 A. W.
Marine, with regular army officers on courts,
78 A. W.
Militia, rank, 124 A. \V.
Publication of, for cowardice or fraud, 100
A. W.
Rank of volunteer and regular, 123 A. W.
Receiving prisoners, 67, 68 A. W.
Redress of wrongs of, 29 A. W.
Regular, on what courts may sit, 77 A. W.
Regular, with marine officers on courts, 78
A. W.
Release of, before trial, 71 A. W.
Release of prisoners by, 69 A. W.
Subject to Articles of War, 64 A. W.
To keep good order in commands, 54 A. W.
To subscribe to Articles of War, 1 A. W.
Trial of, by inferiors, 79 A. W.
Volunteer rank, 123 A. W.
One mile from camp without leave, 34 A. W.
Opinions of members of courts of inquiry, 119
A. W.
Order.s of superior officer, disobedience of, 21
A. W.
Ordnance —
Embezzlement of, 60 A. W.
Larceny of, 60 A. W.,
Misappropriation of, 60 A. W.
Pardon and mitigation, 112 A. W.
Pay of officers, suspension of, 101 A. W.
Peace, in time of, dismissals, 99 A. W.
Confirmation of sentences, 106 A. W.
Penitentiary-
Confinement in—, 97 A. W.
Lex loci, 97 A. W.
Person and property, reparation for injury to,
54 A. W.
Persons serving with armies in field, 63 A. W.
Plea when accused stands mute, 89 A. W.
Post, compelling surrender of, 43 A. W.
Posts-
Transfer of accused for trial, 76 A. W.
Transfer of witnesses, 76 A. W.
President —
Confirmation of .sentences by, 105 A. W.
Dismissals, confirmation of, by, 106 A. W.
Disrespectful words concerning, 19 A. W.
Articles of war— Continued.
President — Continued.
Sentences, confirmation of, by, 105, 106, 108,
109 A. W.
Prisoners —
Custody of, 67, 70 A. W.
Escape of, permitted by officer, 69 A. W.
Receiving by provost-mar.shal, etc., 67 A. W.
Report of, by officers receiving, 68 A. W.
Standing mute, 89 A. W.
Unauthorized release of, by officer, 69 A. W.
Private property —
Reparation for injury to, 54 A. W.
Waste, etc., of, penalty, 55 A. W.
Proceedings of courts-martial, party entitled to
copy, 114 A. W.
Proceedings of courts of inquiry, authentica-
tion of, 120 A. W.
Proceedings of general courts-martial, dispo-
sition of, 113 A. W.
Profane oaths, 53 A. W.
Property —
Captured, 9 A. W.
Embezzlement of public, 60 \. W.
Larceny of public, 60 A. W.
Misappropriation of public, 60 \. W.
Receiving public, in pledge, etc., 60 A. W.
Reparation for injury to person and, 54 A. W.
Returns, IDA. W.
Waste, etc., of, penalty, 55 A. W.
Prosecution, limitation of time, 103- A. W.
Protecting the enemy, 45 A. W.
Provi-sions, etc., violence to persons bringing
in, 56 A. W.
Provoking speeches, etc., 25 A. W.
Provost-martial, refusal to receive prisoners
by, 67 A. W.
Public funds —
Embezzlement of, 60 A. W.
Larceny of, 60 A. W.
Misappropriation of, 60 A. W.
Publication of Articles of War, 128 A. W.
Publication, of officers for cowardice or fraud
100 A. W.
Punishment —
For contempt of court 86 A. W.
In time of war, etc., 68 A. W.
Pardon and mitigation, 112 A. W.
Prohibited, 98 A. W.
Quarrels, etc., who may quell, 24 X. W.
Quarters —
Confinement to, of officers, 65 A. W.
Lying out of, 31 A. W.
Quitting guard, etc., without leave, 40 A. W.
Rank —
Militia officers with regular and volunteer,
124 A. W.
Relatives, of officers trying and tried, 79 A. W.
Volunteers and regulars, 123 A. W.
Rape, death sentence, confirmation of, 105
A. W.
804
INDEX.
Articles of war — Continued.
Rebellion, insurrection, etc., crimes during, 58
A. W. -
Recruits, articles to be read to, 2 A. W.
Receipt, false, 60 A. W.
Record of general courts-martial —
Disposition of, 113 A. \V.
Party entitled to copy, 114 A. W.
Redress of wrongs of enlisted men, 30 A. W.
Redress of wrongs of otficers, 29 A. W.
Regimental commanders, court appointed by,
81 A. W.
Regimental courts —
Appeal from, 30 A. W.
Appointment of, 81 A. W.
Jurisdiction of, 83 A.W.
Oath of members, 84 A. W.
Release of officers before trial, 71 A. W.
Release of prisoners by officer, 69 A. \V.
Relieving the enemy, 45 A. W.
Remote military posts or stations, arrest of offi-
cers at, 71 A. W.
Reparation for injuries to person and property,
54 A.W.
Report of prisoners, 68 A. W.
Reproachful speeches, etc., 25 A. W.
Reservations —
Arrest on, by civil authority, 59 A. W.
Civil authority, .surrender of offenders to, 59
A.W.
Retainers to camp, 63 A. W.
Retreat, failing to retire to camp, etc., at, 35
A.W.
Returns, false, 8 A. W.
Returns, regimental, etc., 7 A. W.
Resignation, when considered as a desertion,
49 A. W.
Robbery —
Death sentence, confirmation of, 105 A. W.
In time of war, rebellion, etc., 58 A. W.
Rape, in time of war, insurrection, etc., 58
A. W.
Safeguard, forcing, 57 A. W.
Sedition —
Penalty for, 22 A. W.
Penalty for failing to quell, etc., 23 A.
Sentence —
Approval of—, 104-110 A. W.
By officer commanding for time being, 104,
109 A. W.
Confinement in i)enitentiary, 97 A. W
Confirmation of, 109 A. W.
Death, 96, 111 A. W.
Death, suspension of, 111 A. W.
Dismissal, confirmation of, 106, 107 A. W.
Dismissal, suspension of. 111 A. W.
Field officer's, confirmation of, 110 A. W.
In time of war, etc., 58 A. W.
Mitigation of, 112 A. W.
Of general officers, confirmation of, 108 A. W.
Suspension of. 111 A. W.
Sentinel sleeping on post, 39 A. W.
Speeches, provoking, etc., 25 A. W.
Articles of war— Continued.
Session, hours of, for courts-martial, 94 A. W
Signature, forging, etc., 60 A. W.
Sleeping on post, sentinel, offense, 39 A. W.
Soldiers —
Charged with crimes, 66 A. W.
Deceased, effects of, 126, 127 A. W.
Statute of limitation, 103 A. W
Desertion, 103 A. W.
Stores —
Captured, 9 A. W.
Military-
Accountability for, 10 A. W.
Embezzlement of, 60 A. W.
Larceny of, 60 A. W.
Loss or damage to, 15 A. W.
Misappropriation of, 60 A. W.
Receiving in pledge, etc., 60 A. W.
Superior officer —
Disobedience of orders of, 21 A. W.
Striking, 21 A..W.
Suspension of officers' pay and emoluments,
101 A.W.
Suspension of sentence of death or dismissal.
Ill A. \V.
Surrender, compelling, 43 A. W.
Swords of officers, deprival of, 65 A. W.
Tattooing, etc., 98 A. W.
Time of peace, dismissals — , 99, 106 A. W.
Confirmation of, 106 A. W.
Time of war —
Death sentences, confirmation of, 105 A. W.
Dismissals, confirmation of, 107 A. W.
Trial -
Of officer, time of, 71 A. W.
Twice for same offense, 102 A. W.
Troops, subject to Articles of War, 64 A. W.
Twice in jeopardy, 102 A. W.
Victuals, etc., commanding oiHcersTiot to be
interested in sale of, 18 A. W.
Violence, etc. —
To persons bringing in provisions, etc., 56
A. W.
To superior officer, 21 A. W.
Volunteers, rank, 123 A. W.
Voting, order of, by members of courts, 95
A.W.
War, in time of —
Appointment of general courts-martial,
73 A.W.
Crimes during, 58 A. W.
Death sentences, confirmation of, 105 A. W.
Dismissals, confirmation of, 107 A. W.
Waste of ammunition, penalty for, 16 A. W.
Watchword, disclosing, 44 A. W.
Witnesses —
Courts of inquiry, 118 A. W.
Oath of, 92 A. W'.
Wrongs of enlisted men, redress of, 30 A. W.
Wrongs of officers, redress of, 29 A. W.
Artificer, extra-duty pay, 1329.
Artificial limit:
Employees at arsenals entitled to, 522.
INDEX.
805
Artlfirlal llmli— Continued.
Right to prosecute claims for, 524.
Right to receive under existing law, 523.
Right to, when disabled awaiting sentence, 1624.
Artisans, extra-duty pay, 1338.
Assault, ete. :
In time of war, insurrection, etc., 5S A. W.; 8S.
On superior officer, 21 A. W.; 16-18.
\Vith intent to kill, to the prejudice, etc., 149.
Assault to coinnilt rape:
Death sentence for, confirmation of, 105 A. W.
Asslffuee of contracts, 903,905,950.
Assignment:
Of bond to creditors of contractor, 573.
Of claim, 766, 767, 903.
Of contracts —
Assignee, 903, 905, 960.
By operation of law, 904.
Constructive ratification of, 900.
For benefit of creditors, 903.
In bankruptcy, 903.
Involuntary, 903.
Need not be express to invalidate, 902.
Prohibited, 897-902, 906.
Receiver, 906.
Voluntary, 903, 906.
Of engineer officers on Debris Commission,
1249.
Of leases, 1585, 1587.
Of license, 1610, 1613.
Of patent, 1888.
Of pay, 1923.
Of retired officer to Soldiers' Home, 2211.
To duty according to brevet rank, 611, 612.
Assistant adjutants-general:
Appointment in State militia, 1816.
Assistant surgeons:
Appointment of, to rank of captain, 414.
Examinations for promotion of, 1318.
Promotion of, by operation of law, 525.
Relative rank, 526.
Attachuieut: (See Civil suit or process.)
Execution of, 2481.
Exemption from, of officer's property, 738, 739.
Of money due contractor, 941, 1432, 1434.
Of public funds by garnishment, 1431-1434.
Process of. by judge-advocate, 1551, 1552.
Attorney, power of, (See Power of attorney.)
Attorney-General:
Employment of counsel by, 973.
Auctioneer: (See Public Auction and Sales.)
Commission to enlisted man as, 1336.
Authentication :
Copies of official papers, 1312, 1845, 1846.
Of action of reviewing authority, 2233.
Of adjournments from day to day, 392.
Of charters or articles of incorporation of bridge
companies, 623.
Of copies of bonds and contracts, 951.
Of copies of orders and papers, 1312, 1845, 1846.
Authority:
Delegation of, by reviewing authority, 2234.
Ball:
Status of soldier released on, 515.
Trial of soldier under, 99.
Unknown to military law and practice, 527.
Bailment:
Liability as bailee of post-exchange funds,
2006. 2007.
Bakery funds:
Loss, stoppage of pay, 2384.
Balances, unexpended, 437, 408, 894.
Baltimore:
Martial law proclaimed i 1 642.
Band fund:
Not public money, 2083.
Barracks, quarters, etc. :
Of a permanent nature, construction of, 481.
Bayonne Canal. >'. 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, l<i;!2.
Recommenrtation for, 6(58, CG9.
Retired .soldier, G69.
Service for which awarded, (iTO.
CcrtintMl <-oplt's of bdiids iiiiil <-oiitrii(ts, 919, 951.
Cession, deed of. Iiy Secrelary of War, 1012.
Cession of jiirlsdletioii : (.See Jurisdiction and Res-
ermtimi.)
By State over military reservation, 1G99.
Ceding back of jurisdiction, 692.
Chickamauga and Chattanooga National Park,
681.
Concurrent jurisdiction, 67-1, 679.
Con.sent of State, effect of, 672, 673.
Coroner, right of, effected by, 689.
Exclusive jtu-isdiction, how acquired, 072, 673.
Exclusive legislation, '679.
Expenditures on lands before, 471.
Fort Monroe, Va., iron pier, 686.
Irrigation, 690.
Jackson Barracks, La., purchase, 684.
Moiuimcnts on land not ceded, 68.5.
National cemeteries, 676, note.
Offenses, 673, 693.
Over land for national cemetery, 1764.
Over land on seashore, 1660.
Process, right to serve by State, 675, 679.
Public buildings, effect on erection, 672, 674,
681, 682.
Punishment for offenses, 693.
Purchase before consent of State, 683.
Purchase defined, 680.
Purchase with consent, 672, 673.
Qualified jurisdiction, 674, 678.
Reports of births and deaths, 691.
Residents, effect on, 676, 677, 688.
Right of way affecting, 687.
Rock Island viaduct, 682.
Statutes not retrospective, 684.
Subject to easement, 1612, 1721.
Tax exemption, 677.
ClniUeiiges:
Courts of inquiry, 368, note.
Effect on proceedings or sentence, 247.
Grounds for, 235, 243, 252-254.
Judge-advocate, 248, 255, 1529.
Member of court, 88 A. W.; 234-255.
^tembers of military commissions, 1679.
Number of, 248,250.
Time for, 246.
Relieving member without, 249,251.
To be noted in record, 2136 e.
To duels, 26,27,28 A. W.; 35, 159.
ChaiiKe of station allowances on retirement of
omcer. 2198.
( liaplaln:
Appointment from civil life, 433.
Eligibility for court-martial duty, 199,1521.
Violation of law of war by, 1569.
Charges:
Accumulation of, 701.
Against officer, 186-188.
CharJtes— Continued.
Amendment of, 720, note, 731.
Article of war laid under, 696-699.
Authentication of, 716,725.
Cai)ital offenses as matter of aggravation, 714.
Con.solidati(m of, 703.
Copy of, olticer entitled to, 71 A. W.; 180.
Copy of, what constitutes service of, 180.
Defined, 695.
Delay in preferring, 722.
Double assignment of pay ac'count, 1893.
Dout)le pleading, 708.
Duties of judge-advocate regarding, 1531, 1532.
Essential requirements of, 695.
Form of, 9, 10, 16, 88, 695, note, 704, 705, 726.
For each offense, 700.
Jnsutlicient and irregular forms, 704, 705, 726, 727.
Joining several persons in one, 715.
Joint or .several in desertion, 715, note.
List of witnesses appended, 721.
Matter of evidence in pleading, 714.
Misnomer or misdescription, 706, 730.
Multiplication of, 701.
Objection to, because unsigned, 724.
Objection to, in matter of form, 1995.
Objection to, in matter of substance, 1995, note.
Offense under different forms, 702.
OHiccr may prefer, while in arrest, 508.
Opportunity for explanation, 718.
Plea in abatement for error in, 698,706, 730, 1995.
Preferred by whom, 716, 717.
Prepared in Judge-Advocate General's Office
723.
Quashed by court-martial, 999.
Referring, for trial, 719, 998.
Renewing, after withdrawal, 1882.
Repreferring of, 720.
Secondary, in lieu of principal offense, 700.
Signing of, 717, 723-725.
Specification and finding on-
Each to be separate, 1354.
To be consistent, 13.53, 1356, 13.59, 1360.
Specification and plea to each, 1352.
Specification appropriate to, 705.
Specification in first per.son, 707.
Statement of service not to include present
character, 733.
Time and place averred, 710-713, 729.
Variance in allegations of time. 713.
Variance in form of specification, 732.
Waiver of objection to unsigned, 724.
Waiver of objection to variance, 732.
Willfulness or negligence alleged, 728.
Withdrawal of, 720, 1882.
Written matter alleged, 709.
( harters or articles of ineorporalion:
Authentication of, ()23.
Charts of the Lakes:
Disposition of, by Engineer Corps, 1250.
Clieek:
Forged, liability for i>ayment 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 <if inferior
court, 1647.
Retired enlisted men, 2218.
Retired officer, 2200.
Soldier under bail, 99.
Witness, arrest of. 510.
rourfs-martliil, rctflini'iital: (See Regimental
,;n,rts.)
Courts- martial, rcfriineiital — Continued.
Jurisdiction, 83 A, \V.; 219-224.
Oath of members, 84 A. W.; 22.5-229.
Sentences, 220, 222-224.
Supervision of, 213.
Courts-niartial, suiiiniary: (See Sumwary court.)
Accused, arraignment, 2398.
Administration of oaths, 2399.
Appointment, 2405.
Forfeitures, 2401.
Illegal proceedings, 2399.
Jurisdiction, 2404.
Officer not sworn, 2399.
Procedure, 2398.
Process of attachment, 2400.
Remission or mitigation of sentence, 2403.
Witnesses, 2398, 2399.
Covenant, as to forfeiture, in deed, 1043.
Crptllt for good conduct in confinement, 1482-1484,
1875.
Creditors'.
Suits by, against officers, 755.
Crime :
Capital, jtirisdiction, 148.
Drunkenness as an excuse for, 1233.
■Huring war, insurrection, etc., 58 A. W.; 87-93.
Fraud, etc., 60 A. W., 107-122.
Meaning of term, 148, 149, 170, 176.
On U. S. transport in harbor, jurisdiction over,
759.
Soldiers charged with, 66 A. \\.
To prejudice of good order and military disci-
pline, 62 A.W.; 148-160.
Criminals:
Penalty for enlistment of, 3 A. W.
Criminal intent:
Absence of, 1875.
Critiflsm :
Public, to the prejudice, etc., 159.
Cuba:
Destruction of property in time of war, 780,
1582.
Extra duty pay in, etc., 1344.
Extradition, 1328.
Holding office in, 1836.
Military contribution levied on inhabitants,
1581.
War-service in, 2223.
Culpable malpractice:
By medical offi^^er, to the prejudice, etc.,
159.
Cumulative leave of absence, 1596.
Current fiscal year, 888.
Customs fund:
Military government in Porto Kico, 480.
Cyclone sutTerers:
In Porto Rico, relief of, 2300, note.
Damages:
By public improvements, liability of United
States for, 753.
For unlawful acts of soldiers, 783.
Li<iuidated, contracts, 918, 921-923, 937, 939.
INDEX.
821
Damages — Continued.
Person and property, reparation l'i)r, 54 A. \V.:
78-86.
Property, liability for, 55 A. W.; 1839.
Unliquidated. 709-773. 917.
Dams:
Permit for in navigable waters, 1774.
Date:
Of operation of Revised Statutes, 2246.
Of order, 1849, 1850, note; 18.52.
AVhen three monthsi begins, reenlistment, 2159.
Day:
Length of, extra duty pay, 1329.
Meaning of, in G. O. 21 of 1891, 1649.
Death sentence, 96, 105 A. W.; 285-287, 839-341
1679, 2227:
By military commission, 1679.
Confirmation of, 105 A. W.
Remission and mitigation of, 341.
Reviewing authority, 2227.
Suspension of. 111 A. W.; 339-341.
Debris Commission:
Assignment of engineer officers on, 1249.
Debts:
Exemption from arrest for, 518.
Of officers and soldiers, action of military au-
thorities on, 755, note.
Deceased officers:
Effects of, 125, 127 A. W.; 373.
Pay of, 1839.
Deceased soldiers:
Effects of, 126, 127 A. W.; 373.
Deeds:
Acceptance of, 1044.
By Secretary of War. 1046.
Cancellation of, 1045.
Covenant in, as to forfeiture, 1043.
Of cession, by the Secretary of War, 1042.
On file in War Department, copies of, as evi-
dence, 1309.
Release of easement conveyed by, 1045.
De facto officer, 1215, 1216.
Defence:
Accused —
Physical restraint of, 1047.
Presence of, 1048.
Desertion from a previous enlistment not a,
1058.
Provocation not a, 1050, 1051.
Defendants:
E(iuality of, l)efore the law, 1049.
Deficiency of property:
Liability for, 1839.
Delegation of power:
By reviewing authority, 2234.
By Secretary of War as to obstructions to navi-
tion, 635.
Delivery:
Of material, contracts, 943.
Of offender to civil authority, 59 A. W.; 94-106.
Of supplies, effect on appropriations, 437.
Demurrer, 1995, note.
Department commaniler:
Aljsence of, 185, 190.
Department commander — Continued.
Accuser or prosecutor, 72 A. W.; 186-188.
Discharges and salaries of clerks. 808.
Supervision of inferior court, 213.
Department of Justice:
Employment of counsel, 973.
Transportation and subsi.stence, 1967.
Depositions:
Admissibility of, 256, 258-263.
By whom talien, 264, 265.
Compensation for executing, 2484.
Compulsory attendance, 2480.
Duties of judge-advocate regarding, 1553.
Effect of United States and State laws, 272, 273
Fees of deponent, 270, 271.
In capital cases, 256.
Objection to, 1019.
Of agent, 261.
Of foreign witnesses, 260.
Of high officials, 257.
Power of court respecting, 262.
Procedure on taking, 269.
Reading of, by other party, 259.
Rights of parties to, 262.
Taking of, 91 A. W.; 2468, 2469.
To identify accused, 266, 267.
Waiver and estoppel, 268.
Withholding of, 259.
Deposits :
Accruing interest stopped by dishonorable dis-
charge, 1052.
On contracts, return of, 961.
Deputy marshal:
Summons, service of, 2470.
Descriptive list, as evidence, 1314.
Deserters : (See Desertion. )
Absent from special muster, 1841.
Admission of evidence after plea of guilty, 1989,
1992.
Application for pardon, 1876, 1877.
Arrest of, in foreign territory, 1096.
At large, draft of, 1118.
Breach of peace in arresting, 1071, note.
Can not be arrested after discharge, 1076.
Civil officer permitting to escape after arrest,
1092.
Claim —
For arrest of, 794.
Wrongfvil arrest and imprisonment as, 770,
786.
Competency of, as witness, 1298.
Delivery of, necessary to reward, 1071, 1082, 1083.
Discharge —
By United States commissioner, 2442.
Upon habeas corpus, 1085, 1107, 1438, 1441.
Drafted men failing to report become, 1226, 1230.
Dropping of, 2294.
During war of rebellion, 1877.
Enlistment of, 1120, 1258, 1260.
Enlistment terminated by honorable discharge,
1268.
Escape of. (See Escape. )
Expenses incurred in apprehending. 1067, 1072.
Extradition of, 1096.
822
INDEX.
Pcserters— Continued.
Forfeiture of pay, lOlU, 1063, 137C., 1872, 1879,
190L', 1903, 1935, 1940.
From Marine Corps —
Enlistment of, 12(iO.
Trial of, for desertion from Army, 1097.
From the Navy, fraudulent enlistment of, 1422.
Includes those charged as well as those con-
victed, 1090.
Habeas corpus, 108.i, 1107, 1438, 1441.
No law extending amnesty to, 1121.
Pardon of, 71, 72, 1S()7, note; 1872.
Pay during period of unauthorized absence, 64.
Pay of officer dropped as, 1895.
Penalty for enlistment of, 3 A. W.
Personal property of, 10G4.
Release, 1100-1102, 1159.
Removal, charge of desertion, 1879.
Restored to duty without trial, 70-72, lOfiO, 1090,
1103, 1122, 2322.
Reward for arrest of, 1071-1091.
Right to vote, 1061.
Service after expiration of enlistment, 2315.
Surrender of, to civil authority, 1081.
To serve full enlistment, 48 A. W.; 64-68, 70-72.
Transportation, 1065, 1066, 1068, 1070, 1084,1089.
Trial of, after expiration of enlistment, 69.
Voluntary return of, 1875.
When prisoners of war considered as, 2065.
Who again enlisted, discharge of, 1146.
Who may arrest, 1087, 1088.
Desertion : ( See Deserters and Reward. )
Absence without leave, 1070, 1093.
Absent from special muster, 1841.
.\cquittal of, as affecting absence without
leave, 1093, 1359.
Advising, 51 A. W., 77.
And fraudulent enlistment, trial for, 1419.
Arrest in foreign territory, 1096.
Articles of War relative to, 47-51 A. W.
As affecting right to bounty, 605, 1396.
As evidence that service has not been honest
and faithful, 1119.
Authority of Secretary of War to decide as to
honest and faithful service, 1119.
Breach of peace in making arrest not author-
ized, 1071, note.
Change of record of fact, 1117.
Civil officer, permitting deserter to e.scape after
arrest, 1092.
Civilian employee not liable to charge of, 1099.
Civilians, expenses incurred by, 1072, 10S9.
Committed during prior enlistment, 1028.
Conviction, approval or disapi)roval of, 1062,
1065, 1074.
Conviction of absence without leave only, 1093,
1359.
Date of enlistment, evidence of, 1055.
Defense to charge of, 1058,1059, 1060.
Definition of, 1053.
Delivery necessary to iiayment <if reward, 1071,
1082, 1083.
De.serters at large, draft of. Ills.
Desertion — Continued.
Deserters includes soldiers charged as well as
those convicted, 1090.
Deserter's release, 1100, 1101, 1102.
Disability from wounds, 1841.
Discharge upon habeas corpus, 1085, 1107, 1438,
1441.
Does not operate as a discharge, 1157.
Draft, failing to report to board of enrollment,
1114.
Enlisting without discharge is evidence of, 73.
Enlistment —
After, 76.
After notification of discharge, etc., 75.
In the enemy's army by prisoner of war, 1095.
Of a deserter, 1120.
Escape. (See Escape.)
Evidence of, 1056, 1057.
Previous convictions in trial for, 2051.
Expenses incurred in apprehension of deserter,
1067, 1072.
Extradition, 1096.
Forfeiture —
Of citizenship, etc., incident to conviction of,
1061.
Of pay, 1062, 1063, 1376, 1872, 1879, 1902, 1903,
1935, 1940.
From volunteer army, 1098.
Habeas corpus, 1085, 1107, 1438, 1441.
Honorable discharge relieves, in general, from,
116G.
Intent, 1053, 1054, 1057.
Joint or several charge, 715, note.
Larceny of borrowed property at time of, 1564.
Limitation of prosecution in, 103 A. W.; 314-322.
Local bounty money not forfeited by, 1064.
Making good time lost by, 48 A. W.; 375.
Marine Corps, trial of deserter from, 1097.
Marine enlisting in Army after, 74.
No law extending amnesty to deserters, 1121.
Not a felony, 1298.
Pay of officer dropped for, 1895.
Personal property not subject to forfeiture for,
1064.
Persuading, 51 A. W.; 77.
Proof of, 1056, 1057.
Punishment, 47-51 A. W.; 64, 66-70.
Reenlistment without discharge, evidence of,
78.
Removal of charge of, 1062, 1103-1117, 1122, 1879.
Resignation, when considered as, 49 A. W.
Responsibility for loss of property upon acquit-
tal of charge of, 1069.
Restoration to duty without trial, 70-72, 1060.
1090, 1103, 1122, 2322.
Reward —
Amount of, expressly stopped by sentence,
1076.
Arrest must be a legal one, 1080.
Collusion bi^tween deserter and (uvil officer,
1080.
(Jonclusive evidence of intention to desert,
1078.
INDEX.
828
Desertion — Continued.
Kfward — Continued.
Delivery to detachment in pursuit, 1084.
Deserter discharged on habeas corpus, 10S5.
For arrest of deserter, 1071-1091.
Must be still a soldier to entitle to, 1076.
Not payable if soldier has legal defense, 1077.
Not payable when .soldier, at time of arre.st, is
serving in other branch of Army, 1091.
Payment of, upon acquittal or disapproval of
sentence, 1074.
Peace officers only entitled to, 1087, 1088.
Soldier restored to duty without trial, 1090.
Stoppage of pay as distinguished from pun-
ishment, 1073.
Surrender to civil authority, 1081. •
Transportation not included in, 1084.
When found guilty of absence without leave
only, 1075.
Where soldier is adjudged insane, 1079.
Right of Government over minor paramount to
that of parent, 1094.
Sentence — , 64-68.
Disapproval of, 64.
Remission of, 66.
Soldiers in , upon disbandment of volunteer
army, 1160.
Stoppage in case of, 2379, 2380.
Terminated by honorable discharge, 1268.
Transportation, 1065, 1066, 1068, 1070, 1084, 1089.
Trial of deserter from Marine Corps for, 1097.
Trial for, includes absence without leave, 1093,
1359.
Voluntary return of deserter, 1875.
Vote, right to, as affected by, 1061.
Warrant to enter and search dwelling house
necessary. 1071, note.
Designation of penitentiary by reTiewlng author-
ity, 2240.
Destruetlon, etc. :
Of property, official papers, 1844.
Of property, penalty, 55 A. W.
Detained pay, stoppage, 2378, note.
Detail:
Hospital corps, 1447.
Of clerk of War Department to instruct High
School Cadets, 804.
Of officers to civil duties, 489, 491.
Of sergeants, in engineer battalion, 1248.
Diplomatic service:
Appointment in, 1825, 1826.
Disability:
Delegation of authority to discharge for, 1184.
Effect on promotion, 2067, 2075.
Legal, 1201.
Officer from wounds, 184: .
Removal of, 1867, note; 1872, 1879, 1881, 2167.
Retirement for, 2192, 2195-21%, 2203, 2204, 2207,
2208.
Disapproval:
Express, by reviewing autliority, 2229.
Of sentence by reviewing authority, 2227,2229,
2230, 2234-2236. 2238, 2245.
IMsnpprorni — Continued.
Payment of reward upon, 1074.
Disbandment of Volunteer Army, 1222.
IMsliurslnt: officer: (See />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 <louiain:
.Vccpiirenieut of land by, 2109.
INDEX.
827
Einiiiciit (Idiiialii— (^)iitinu(.'d.
Condemnation proceedings, 1246, 1247.
Lands not to be iicunired, ete., in absence of
appropriation, 1246.
Procedure for exercise of riglit of, 1247.
Right of, over land for national cemetery, 1769.
Emoluiiiciits of officers:
Suspension of, 101 A. W.
Employee:
Civil, of Government, admi.ssion of to Hot
Springs Hospital, 14.'>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. .
Assif<ucd—
Calling for more than was dne, 1351.
Stoppage of pay to satisfy, 1351.
Cashing of, by enlisted men, 1347.
Disbursing officer, erroneous payment without
due rare, lo4.s, note.
Fraudulent, 109,1350.
Liability for money erroneou.sly paid on, 1349.
No part of a discharge, 1157.
Finding's:
Approval of, 1062,2228.
As .set forth in record, 2136i.
Chfvnge of, by reviewing authority, 2239.
Conduct to the prejudice, etc., under charge of
conduct unbecoming, etc.. 1361-1363.
Court governed by evidence in connection with
plea. 13.52.
Disapproval of, 1062,1065,1074.
Di.sclo.sing of, 1.59, 798.
Divulged to clerk by member of court, 798.
Exceptions and substitutions, 1355-1360, 1366.
Of a different distinct offense not authorized,
1360, 1367.
Of examining board, approval of, 1323.
Of retiring board—, 2194, 2195, 2206.
Approval of, by President, 2194, 2196, 2206.
On charge and specification to be consistent,
1353, 13.56, 1359, 1360.
Plea of guilty to specification but not guilty to
charge, 13.52.
Recording of individual votes, 1368.
Revision of, 2249, 2256.
Specific offense under charge of another specific
offense, etc., 1362.
Tie vote—, 1364, 2456.
Statement of, in record, 1364.
To conform to plea when no evidence is intro-
duced, 1352.
Upon each charge and specification to be sep-
arate, 13.54.
Upon what to be based, 1365, 1366.
FlucT
As distinguished from stoppage, 1370, 2377.
Can accrue to the United States only, 1371.
Co.st of attendance of witnesses, 1372.
Court can not direct as to collection of, 137i.
Imposable only as a punishment, by courts-
martial, 1.369.
Imprisonment till paid. 1373, 1461.
Restoration of, 1S69, note.
Stoppage distinguished from, 1370, 2377.
Firm of coiitractors:
Payments to membt-rs of, 942.
Fiscal year:
Current, 888.
Fish:
Right of piscary in waters of territory, 1712.
Fish weir:
Con.struction of, in navigable waters, 1783, 1784.
Flags :
Captured, 664.
Liberty of alien to display, 404.
Flav of tru<e:
Nature, privileges, and violations of, 1374.
Flogging, etc., 98 A. \V.
Forage :
Best quality of locality, 964.
Contracts for, 888.
For horses of suspended officer, 2424.
Masters, not enlisted men, 2216.
Forcing safeguard, 57 A. W.
Foreign country:
Punishment for offenses committed in, 92
Foreign possessions:
Office in Cuba and Porto Rico, 1836.
Foreign service:
Accepting presents from foreign Governments,
1375.
Foreign surety conipiinies, 601.
Foreign territory:
Arrest of deserter in, 1096.
Foreigner:
Violation of law of war by, 1570.
Forfeiture:
Accruing to the United States only, 1384.
Against persons serving with armies in field. 162.
All pay and allowances, without the words:
due him, 1403.
All pay due, with dishonorable discharge, 1402.
All pay now due, or to become due, 1402.
Allowances, 1381, 1383, 1397, 1398, 1403, 1961, 1962.
Amount excepted from, 1389.
Approval, 1387, 1388.
As effected by reduction of rank, 1388.
Bounty, 1396.
By implication, 1380.
By operation of law, 1376-1378.
By sentence, must be expressed, 1380.
By summary court, 1401.
Can be remitted only as to pay due, 1394.
Clothing money, 1132.
Clothiiig not subject to, 1382.
Compensation no part of pay, 1969.
Court to definitely fi.x the amount, 1379
Date of order promulgating, 1400.
Date of order remitting, 1407.
Discharge operating as a remission of, 1892.
Disposition of, 1377, 1384, 1394, 1395.
Executed sentence of, 1394.
Extending beyond term of service, 1390, 1391.
Extra duty pay, 1383.
For benefit of company fund, etc., 1384.
For benefit of post exchange fund, 1384.
For same period as confinement, 1385, 1386.
Implication, 1380.
Incident to desertion, 1376.
Misconduct, 1380.
Monthly pay, 1385-1388, 1390-1392, 1406, 1408.
Of pay —
Due before promulgation of sentence, 1393.
For certificate of merit, 1409.
Now due, 1339.
Only does not include allowances, 1398.
To reimburse the United States not authorized
by seventeenth article of war, 12.
Operation of sentence imposing, 2325.
832
INDEX.
Forfeiture — Continued.
Pay and allowances—, 1898, 1902, 1903, 1919.
Accruing during unauthorized absence, 375,
378.
Personal property of deserter not subject to,
1064.
Private property of .soldier, 1396.
Reimbursement of individuals, 13S4.
Remissions of, 1377, 1386, 1392, 1394, 1404-1407.
Restoration of, 1394, 1879.
Retained pay, 1168, 1378, 1934, 1935, 1937, 1938,
1940.
Soldiers' Home, 1384, note.
Stoppage —
Against pay of subsequent enlistment, 1391.
Distinguished from, 2377.
Travel allowances—, 1132.
By dishonorable discharge, 1168.
Upon discharge for disability, etc., 1184.
Travel pay, 1378.
Upon becoming public money cannot be re-
funded, 1394.
Upon sentence of dishonorable discharge only,
1378, 1397.
When illegal and void, 1394.
When in excess of monthly pay, 1408.
Forgery :
To the prejudice, etc., 149, 159.
Treasury check, liability for payment on, 1410.
Voucher, liability for payment on, 381,1410.
Forging signature, 60 A. W.; 109.
Fort:
Compelling surrender of, 43 A. W.
Fort Monroe, Va. :
Cession of jurisdiction, 686.
Fort Sherman, Idaho:
Opium, sale at, 2289.
Fortifications:
Photographing contrary to law of war, 1578.
Forty years' service:
Retirement, 2205.
Franchise :
Acceptance of, 624.
Assignment of, 629-631, 2120.
Effect of consolidation on, 2120.
Granting of, in conquered country, 1579.
In hands of receiver, 639.
Fraud :
Attempting to induce officer to join in, how
charged, 125.
Embezzlement, etc., 60 A. W.: 107-122.
Fraud or cowardice:
Publication of officers for, 100 A. W.; 301,302.
Fraudulent divorce proceedings, 141.
Fraudulent enlistment:
As to disqualifications for enlistment, 1421.
Clothing money, 1132.
Collusion in procuring, 159.
Defined, 1412, 1417, 1418.
Deserter from the Navy, 1422.
Discharge —
By sentence for, 1423.
Honorable, 1416.
Or trial of minor for, 1182.
Without honor, 1275, 1419, 1420.
Fraudulent enlistment — Continued.
Disposition of otTender, 1413, 1414, 1415, 1419, 1420.
Enlisting without a discharge, 1418, 1419.
Honest and faithful service, 1416, 1421.
Not void, but voidable, 1414, 1415, 2221.
Pay and allowances, upon dishonorable dis-
charge for, 1423.
Pay, under, 1930.
Service legal when accepted, 1415, 1416, 2221.
Services under, for purpose of retirement, 2221.
Summary discharge for, 1414, 1423.
Travel allowances, 1132, 1963.
Travel allowances, upon dishonorable discharge
for, 1423.
What constitutes the offense of, 1412, 1417, 1418.
Fraudulent final statements, 13.50.
Fraudulent intent:
Absence of, 1875.
Frays, etc. :
Who may quell, 24 A. W.
Fuel:
Allowance for, not affected by suspension, 2418,
note.
Allowance to-
Enlisted men, 1956.
To officers, 1915-1918.
Contracts for, 888.
Contract surgeon entitled to purchase, 390
Officers' families, 1918.
Sales to officers, 1944.
Fuel and lights:
Appropriation for, 462.
Funds: (Sea Public monei/ and Public funds.)
Cover-in of, to Treasury, 2102.
Credit for deposits, 2128.
Customs, ""military government in Porto Rico,
480.
Emergency, 456.
From savings, post exchange, etc., 1384, note,
1424-1427.
Loes, stoppage of pay, 2384.
National Volunteer Soldiers' Home, expendi-
ture, 2341-2343.
Public-
Allotment to storm sufferers, 2300.
Embezzlement — (See Embezzlement. )
Defense, 155.
Defined, 154, note, 15.5-157.
Illegal payment of public money, 157.
Not accounting for public money received,
156.
Of, false statements, evidence of, 120.
Of, how charged. 111, 119,
False statements concerning, 120.
Garnishment of, 1431-1434.
Illegal withdrawal of, from depository, embez-
zlement, 1.54.
Larceny of, 60 A. W., 113.
Misappropriation of — , 60 A. W.; 116.
How charged. 111, 119.
Trial for, after separation from service, 117,
118.
Proceeds of sale of articles manufactured by
jirisoners, 495.
INDEX.
838
Kiinds— Continued.
Public — Ctin tinned.
Refusing to transfer or disburse, 114.
Restitution of, 1874.
Received at military posts, etc., character, 2083.
State Soldiers' Homes, expenditure, ?339.
Kiiiu'ral expenses: (See Burial expenses.)
officers, 1954, 1955.
Furlough:
Absent on, in line of duty, 1620, 1621.
Allowed at end of third year of enlistment,
1428, 1429.
Arrest while on, 97, note, 517.
Inclusion in computation of service for ap-
pointment, 2074.
Retirement, 2223, 2224.
Right to pension when disabled on, 1620-1623.
Who may grant, etc., 11 A. W.
Oambllng:
As an offense under the Articles of War, 1430.
Disbursing officer, 1430.
Not, per se, a military offense, 1430.
Officer visiting house of, etc., how charged, 131.
To the prejudice, etc., 1.59.
With enlisted men by officer, how charged, 131.
(inrnlsliment:
In general, 941, 1431-1434.
Of military pay unauthorized, 1431, 1433.
Of money due contractor, 941, 1432, 1434.
Pay in hands of third person, 1431.
Public funds, 1431-1434.
(■arrison:
Compelling surrender of, 43 A. W.
General oourtt«-niartial. (See Court-martial and
Courts-martial general.)
(ieneral officers:
Sentences of, confirmation of, 108 A. W.
General service clerks and messengers, 1939, 1960,
1964, 1965, 1968.
General staff:
Of what officers consists, 1435.
Secretary of War has direction of, 1435.
Staff of President, as Commander-in-Chief of
the Army, 1435.
Gestures:
Provoking, 25 A. W.; 34.
Gettysburg Battlefleld:
Appropriation for monuments, etc., for, 461.
Condemnation of land at, 1.M1.
Donations of condemned cannon Iopc, 461.
Gettysburg National Cemetery:
Establishment of, 1771, 1772.
(ilving Intclllifence to the enemy, 46 A. W.; 63.
(^odd ('(indiii't In conflnement:
Remitting p\inishment of prisoners, 356, 1482-
1484.
Good order on march, etc. :
Officers to keep, 54 A. W.
(Jormley case:
Discharge on habeas corpu.s, 1438, note.
Governors of States:
Appointment of retired officers as officers of
volunteers, 2211.
How empowered to give bond, 594.
16906—01 53
Government Hospital for the Insane:
Requisition for military prisoner by, 2176.
Pay of officers in, 1517.
Sending, after discharge, insane prisoners to,
1163.
Grass:
Cutting of, on military reservation, 1715.
On reservation, larceny of, 1563.
(lireat Britain:
Extradition treaty with, 1327.
Guaranty: (Hgq Contract.)
Bidder's bond, no statute requiring, 569.
Bonds, 569-571.
Guard, etc. :
Quitting without leave, 40 A. W.
Guardhouse time:
Remission of, 2165.
Guardian:
Appointment of—, 1040, 1517, 1900, 1933.
Over officer for drunkenness; effect on mili-
tary jurisdiction, 1040.
Over insane officer, 1517.
Guides, etc.:
Trial of, 162, 164.
Habeas corpus:
Discharge upon, 1085, 1107, 1180, 1183.
Gormley's case, 1438, note.
Jurisdiction, 1438-1443.
Resistance to process, etc., 1441.
Returns to writs of, 1438, note, 1440, 1441, 1443.
State courts, 1438-1442.
Suspension of, 1436, 1437, 1641, 1643.
Tarble's case, 1438, note.
Where writ is is.sued by United States court, 1443.
Handn^riting, proof of,1316.
Harbor lines:
Establishment of, 1782, 1786, 1788, 2272.
Harboring the enemy, 45 A. W.
Hard labor. (See Imprisonment.)
Hawaii:
Arms, etc., issued for militia of, 1739.
Hay:
On military reservations, cutting, 2088.
On reservation, larceny oi, 1563.
Use of, by post trader, 2033.
Headquarters:
Official papers of, 1844, 1840.
Hearing before retiring board, 2197.
High school:
Arms i.ssued for use of, 836, note.
Detail of clerk of War Department to instruct
cadets at, 804.
Service at, of officer detailed to college duty,
832.
Highways, public:
Expenditure of appropriations on, 467, 469, 472,
475.
Hire of day labor, 861.
Hiring to do duty—, 30 A. W.
Conniving at, 37 A. W.
His arms or ammunition:
Construction of term, 57.
Hog Island, Mo. :
Property in accretions, 1559.
Holding office. (See Civil Office and Office.)
834
INDEX.
Holidays:
Pay for, 792, 1444-1446.
Home, Soldiers': {See Soldiers' Home.)
Forfeitures accruing to, 1384, note.
Home, Volunteer:
Burial place for inmates of, 1770.
Court-martial, 1038.
Homicide, justifiable:
Distinguished from manslaughter, 1636.
Honest and faitliful service. (See Reinlist'fnent.)
Authority of Secretary of War to decide as to
1119.
In general, 1119, 1266-1268, 1272, 1274, 1275, 1416,
1421, 2158.
Reenlistment, 2158.
Under fraudulent enlistment, 1416, 1421.
Honorable discliarge. (See Discharge.)
Horse:
Penalty for losing, spoiling, etc., 17 \. W.
Transportation, 19.52, 1953.
Hospital:
Admission of officer's servant, 1842.
Fund-
Forfeitures for benefit of, 1384.
Stoppage of pay to reimburse, 1384, note, 1424,
2384.
Hot Springs, 1454-1457, 2405.
Pay of insane officer in, 1517.
Steward, transportation expenses, 1966.
Stewards, acting, 1447, 1448.
Summary courts, 2405.
Time spent in, by prisoners, 1476.
Hospital Corps:
Acting hospital steward.s —
Extra pay, 1448.
In general, 1447, 1448.
Travel pay, 1447, 1448.
Convalescents, 1453.
Detail to, 1447.
Enlisted men, 1447, 1449-1451.
Hospital steward, transportation expenses, I9ii6.
Nurses, employment of, 1452.
Privates, 1447, 1448, 14.50,-14.53.
Reenlistment, 1448.
Transfer, 1449, 1450, 1451.
Volunteers, 1450, 1451.
Hot Spriiiifs Hospital:
Amenability to State jurisdiction of persons at,
14.56.
Civil employees of government, 1454.
Discharged enlisted men of Navy, etc., 1457.
Officers of the —
Marine-Hospital Service, 1455.
Revenue Marine, 14.55.
Summary court, 2405.
Hours of session:
For courts-martial, 94 A. W.; 281-2.S4.
Ice:
Harvesting of, on navigable waters, 1795.
Identity:
Mistaken, 1067.
Illegal sentence. (See Sentence.)
Implied authority for use of appropriations, 413,
114, 473, 175-177,479.
Impressment of property, 661.
Imprisonment: (See Confinement and Pardon.)
Changing place of, 1468, 1469.
Character of, after termination of enlistment.
1460.
Claim for wrongful, 770, 786.
Commencement of term of, 1462.
Congress remitting sentence, 1880.
Credit for period of, prior to or after trial, 1163.
Deduction for good conduct, 1482-1484.
Delivery to place of, 1459, 1460.
Discharge by executive authority, effect of, 1477.
Escape and recommittal, 1475, 1476.
Extending beyond term of enlistment, 1460.
Force and effect of, 1473.
Good conduct, 187.5.
In general, 770, 786, 1373, 1458-1486, 1516, 1879,
1880.
Labor during, 1464, 1467.
Letters during, 1472.
Not affected by dishonorable discharge, 1485.
Prisoners triable by court-martial, 1485, 1486.
Proper authority to designate place, 14.59.
Recommittal after erroneous release, 1474.
Remission of, for insanity, 1516.
Removal to hospital, 1476.
Sentences, cumulative, 1479-1481.
Sentences, irregular and inoperative, 1458.
Sentence of, until fine is paid, 1373, 1461.
Termination of, by a second sentence, 1478.
United States penitentiary, 1470.
Use of irons, 1465, 1466.
Improrement of rivers and liarbors: (See River
and harbor works.)
Acquiring land for, 1491, 2307.
Additional estimates, 1494.
Civilians employed on, 1495.
Contracts, 2301.
Donations of land or material for, 1491.
Duty of officers employed on, 1487, 1488.
House and Senate can not, separately, call for
information concerning, 1494.
Inspection of unserviceable property, 1496.
Islands in navigable rivers, 1490.
Lands flooded by dams, constructed in, 1492.
Liability for unauthorized obstruction, 1497.
Military stores, 1496.
Natural waterways, 1493.
Necessary obstructions to navigation, 1497.
Obstructions to navigation, 1488, 1489.
Private property, obstruction to navigation, re-
moval of, 1488.
Purchase of land, 1491, 1492.
Removal of wrecks, etc., 1488, 1489.
Reports of purchases of supplies, 1495.
Right of way, 2262.
Rules and regulations lor use and navigation
of canals, etc., 1493.
Incapacity found by retirins: board:
Cause of, 2195, 2196, 2203, 2204, 2208.
Increased pay:
Time of reenlistment to secure, 2154, 21.59.
Indian agent:
Commutation of quarters, 1943.
INDEX.
835
Indian imcnt — fontiiiued.
Detail of Army officers as, 1835.
Issue of arms and ammunition to, 2090.
License trade, 1499.
Mileage of officer detailed a.s, 1675.
Militia rendering assistance to, 1728.
Not guardian of Indian minor for purpose of
enlistment, 1265.
Indian country:
Apprehension of fugitives from justice in, 1505.
Arrest of Indians in, 1506, 1507.
Arrest of persons selling liquor to Indian, 1506.
Definition of term, 1498.
Introduction of liquor into, 97, 1500, 1501, 22S7.
License to trade with Indians in, 1499.
Liquors-
Character of, question for courts, 1500.
De.struction of buildings used for storage
of, 1.503.
Destruction of, introduced into, 1503, 1504.
Introduction of, into, 97, 1500, 1501, 2287.
Wine for religious purposes, 1501.
Into Alaska, 1,502.
Removal of intruders, etc., from, 487, 1505.
Term as applied to Alaska, 1502.
Indian minor:
Enlistment of, 1265.
Indian police:
Arrest of deserter by, 1088.
Indian prisoner:
Enlistment of, 1280.
Indian reservations: (See Reservations.)
Introduction of liquor into, 2287.
Military reservation on, 1701.
Removal of intruders, etc., from, 487.
Right of way through, 1700.
Indians:
Army officer can not hold office of assistant to
Deputy Commissioner .p$- Indian Affairs,
1835.
Arrest of, on civil process, by military authority,
487, 490.
Claims for property taken by United States, 777.
Counsel to defend, in civil suit, 979.
Detail of officers to instruct, 489, 491.
Enlistment of, 1269.
Sale of intoxicants to, in Territories, 2439.
Trade with, by post trader, 2030.
Transportation, 454.
Trial of, by military commission, 1684, note,
1686.
Indian soldier or scout:
Muster of, as farrier or blacksmith, 1510.
Pardon of, 1875.
Pay of, during arrest and detention by civil
authorities, 517,
Pay not retained, 1939.
Selling liquor to, 1508, 1509.
Share of compensation paid for railroad graiit,
1511,
Indian Territory:
Use of Army in apprehending robbers, etc., 492.
Indian war:
Attitude of Cherokee Nation during civil war,
1513.
Civilian employees, 164, 165.
Defining nature of, 1512,
Misbehavior before enemy may be committed
in, 56.
Predatory incursions do not constitute, 1512.
Status of Indians once hostile, returned to alle-
giance, 1514.
Individuals:
Reimbursement of, by forfeiture, 1384.
Inferior officers:
Appointment of, 410.
Infringement of patent: (See Patent.)
Clause in contract to protect United States
against, 885.
Injunction —
Against obstruction of navigation, 1775.
Against officers, 743, 758.
Against railroad company at Gettysburg battle-
field. Pa., 1.561.
Injury to person and property:
Reparation for, 54 A. W.; 78-86.
Injury to property:
Penalty, 55 A. W.
Inquiry:
Courts of. (See Courts.)
Insane: {See Insa7iity.)
Officer, resignation, 2186,
Persons —
Competency as witness, 1307, 2466,
Enlistment of, 1258, note.
Prisoners, sending of, after discharge, to Govern-
ment Hospital for the Insane, 1163.
Soldier-
Discharge of, 1162.
Removal of charge of desertion, 1106.
Reward for apprehension of, as a deserter,
1079.
Insanity: (See Insane)
After approval of sentence, 1516,
Bond of wife of officer, 1517,
Guardian insane officer, 1517.
Objection to witness on account of, 2466.
Of accused on trial, 1515
Pay of insane officer, 1517.
Remission of sentence for, 1516.
Sentence made null and inoperative by, 1516.
Inspection:
Disbursements of appropriations, 1128.
Unserviceable material at national cemeteries,
2281.
Unserviceable property, 1496.
Inspector-yeneraPs Department:
Inspections, condemned stores, 2281, 2285.
Instrumentalities of government:
Post exchange and other funds, 1384, note, 1424,
1425.
Insurance, 455.
Insurrection, rebellion, etc. :
Crimes during, 58 A. W.; 87-93.
Interment of deceased officers, 1954, 1955.
836
INDEX.
Interest, accrninp:
Stopped by dishonorable discharge, 1052.
Interpreter:
Member of court as, 1518.
OflBcer preferring charge as, 1519.
Prosecuting witness as, 1519.
Trial of, 162.
Intoxicants:
Introduction of , into Indian country, 1500, 1501,
1503, 1504, 1506.
Sale of, 2287, 2290.
Sale to Indians in Territories, 2439.
Intoxicated persons:
Enlistment of, 1258, note.
Penalty for enlistment of, 3 A. W.
InTentiou: (Sec Pattnt.)
Of employees of United States, 845.
Prohibition of purchase of, 1891.
Inventor: (See Patent.)
Member of Board of Ordnance and Fortifica-
tions, 1891.
Proof of priority of invention, 1884.
Involuntary assignments of contracts, 903.
Irons:
Accused not in general to be placed in, while
on trial, 1047.
Soldier under arrest not in general to be put
in, 511.
Use of—
As a ground for clemency, 1875.
On prisoners, 1465, 1466.
Irrigation:
Cession of jurisdiction affecting, 690.
Ditches—
On military reservations, 2088.
On rights of way, 2264, 2265.
License to use water for, 1608.
Islands in navigable rivers:
Hog. 1559.
' Title to, 1490.
Italian labor:
Employment of, on contracts, 954.
Jaclison BarraclLS, La. :
Cession of jurisdiction, 684.
Japanese cooiis:
Enlistment of, 1282.
Jeopardy:
Meaning of term, 303.
Twice in, 102 A. W.; 152, 303-313.
Judicial notice, 1294.
Judiciary:
Power to determine end of war, 2467.
Judge-advocate:
Absence of, 1539.
Affidavits before, 1554.
Appointment from civil life, 433.
Appointment of, 74 A. W.
Appointing of reporter, 2168.
Arrest of accused by, 1535.
Authentication of proceedings, 1524.
Authority —
Regarding charges, 1631, 1532.
To enter nolle prosequi, 1797.
To excuse from court, 1008.
Judge-advocate — Continued.
By whom appointed, 1520.
Challenge —
By, 255.
Of, 248.
Civilian as, 1528.
Closing argument by, 1542.
Competency as witness, 2463.
Court in closed session, 1547, 1548.
Depositions, 1553.
Duties—, 90 A. W.; 2078.
Not to be Interfered with, 1541.
Toward accused, 1533, 1534.
Employment of counsel to assist, 982, 983.
Erroneous statement of regiment or corps of,
in order convening court, 1859.
Execution of court's orders by, 1538.
Furnishing opinion to court, 1536.
Hostile to accused, 1529, 1530.
Judge-advocate on staff as, 1527.
Members of court acting as, 1526.
Not subject to challenge, 1529.
Oath of, 85 A. W.; 274.
Of corps of, duties, 1555, note.
Of department, oaths administered by, 1803.
One for each court, 1522.
Pay of acting, 1854.
Presence of, to be noted in record, 2136 d.
Presumption in favor of, 1546.
Process of attachment of witnesses, 1551, 1552.
Records prepared and transmitted by. 1537, 1545.
Relief and substitution of, 1523-1525.
Reporters for court, 1543, 2168.
Service of subpoenas, 1550.
Subpoena of witnesses by, 1549.
When witness, 1540.
Who may be appointed, 1521.
Witness, compulsory attendance, 2478, note.
Witnesses summoned by, 1549.
Judge- Advocate-General :
Charges prepared in office of, 723.
Claim to, for reporting proceeding of courts,
1558.
Copies of reports of, to outside parties, 1557.
Functions and duties of, 1556.
Opinions on State matters to State officials, 1556.
Proceedings of general courts-martial, disposi-
tion, 113 A. W.
Recommendations on applications for pardon,
1875, 1876.
Records of courts-martial transmitted to, 1545.
Reports, confidential, 1557.
Judgment against army officer, 746.
Jurisdiction:
Cession of. (See Cession of Jurisdiction.)
Courts-martial-
Concurrent, 87, 1688, 1689.
In time of war, etc., 89.
Murder, 148.
Expenditures on lands before cession of, 47L
Extradition, 1326.
Habeas corpus, 1438-1443.
Military commission, 1165, 1680-1692.
IT^^DEX.
837
Jurlsdlftioit— Continued.
Of civil court, retired officer retiiined in, by
military authority, 2'215.
Of Executive limited by Congress, 500.
Of general court-martial, 1021-1041.
Of retiring boards, 2103.
Of State over persons at Hot Springs Hospital,
1456.
Over reservations, 97, 98, 102, 103.
Concurrent, 98.
Exclusive, 97.
Over State territory-
Concurrent, 674, 679.
Exclusive, 672, 673.
Post commander over prisoners, 1485.
Territorial, over military persons, 2438.
Juror:
Enlistment while serving as, 757.
Jury duty:
Retired officers, 2201.
Justice of peaee:
Not authorized to arrest deserter, 1088.
Justifications of sureties, 537, 539, 540, 551, 553.
Kansas and Missouri Bridge Company:
Right of way, ruling on, 2260.
Labor and material:
Contracts, 945, 947, 949-952.
Payment of, secured by bond, 570, note.
Laltor:
Hiring day, 861.
Laborers:
Extra-duty pay, 1338.
Civilian, in military service, contracts, 896, 959.
Laborers or mechanics. (See Eight-hour Imv.)
Laches not imputable to United States, 5.50.
Lance sergeant not a noncommissioned officer, 411.
Land:
Abandoned, reversion of title, 2116.
Acquiring —
By eminent domain, 1246, 1247, 2109.
For improvement of rivers and harbors, 1491.
Alienation of United States, 2113.
Appraisement of, for National Cemetery, 1763.
Appropriation by State, for right of way, 2110.
Ces.sion of jurisdiction over, on seashore, 1560.
Condemnation of, 2262, 2307.
At Gettysburg battlefield, 1561.
Conveyance of —
Interest of United States, 2087-2089.
Void, unless authorized by Congress, 1491,
note.
Copies of patents, deeds, etc., for use as evi-
dence. 1309.
Counsel to examine title to, 980.
Disposition of United States, 2087.
Donated, erection of buildings on, 2105.
t Donation of, for improvement of rivers and
harbors, 1491.
Exemption from taxation, 2429-2436.
Flooded by dams, etc., 1492.
Gift of, to United States, 2105,2106.
Illegal occupation of, 2100.
Injunction against railroad company, 1.561.
In litigation, payment of rent on, 1588.
Land — Continued .
Jurisdiction over ceded, 2429-2436.
Laying of water-pipes, 2089.
Lease of, 1.585-1592,2307.
License, 1599-1616.
Military, on Indian reservation, 1701.
Mineral or phosphate, 1590.
Mineral —
Lease of, 1590.
Right to prospect on military reservation, 1703.
Over which jurisdiction has not been ceded,
expenditures on, 471.
Phosphate, lease of, 1590.
Products of, property in, 2101.
Property—
In accretions to, 15.59.
In bed and shore of navigable waters, 1.559.
In monument erected by United States, 1662.
Protection by injunction from trespass, 2116.
Public-
Distinguished from military reservation, 1700,
1709.
Revocable license for, 2268, 2307.
Purchase of —
For burial purposes, 2106, 2107.
For improvement of rivers and harbors, 1491,
1492.
For United States, 2105-2108, 2304.
Purchased, title to, 2114.
Reserved, transfer of, 2299.
Right of eminent domain over, 1769.
Right of way, 2259-2268.
United States, transfer, 2088.
Vesting of title in, by statute, 2112.
Water-reserve, right of way, 2263.
Language:
Disrespectful, 19, 20 A. W.; 13-15, 143.
Larceny:
By deserter, of borrowed property, 1564.
Confinement in penitentiary for, 291, note.
Disposition of money on acquittal of, 1565.
Hay on reservation subject to, 1563.
In time of war, insurrection, etc., 58 A. W.; 88.
Plea and statement inconsistent in case of, 1993.
Property, 60 A. W.; 113.
Furnished or intended for the military serv-
ice, 113.
State disability on conviction of, 1566.
To the prejudice, etc., 148, 149, 151.
Last preceding term of enlistment, 1278.
Laundress:
Wife of soldier as, 1638.
Laws:
Evidence of, Rcvi-sed Statutes, 2246 and note.
Local and temporary, effect of Revised Statutes
on, 2248.
Martial, 1639-1646. (See Martial laiu. )
Of the land, meaning of, 96, note.
Presumption of, 1302.
Territorial, military persons subject to, 2438.
Law of war :
Alienation of immovable property not justified
by, 1579, 1584.
838
IT^^DEX.
LiiTf of war — Continued.
Amenability of officers and soldiers to laws of
conquered country, 1576; note, 1580.
Bond furnished not to violate, 1571.
Contributions from enemy justified by, 1.575
1581.
Defined, 1.5(;7.
Foreigners subject to, 1570.
Instances of violation of, 1569, 1570, 1578.
Intercourse with enemy prohibited, i567.
Laws of conquered country in force under, 1576.
License of property under military govern-
ment, 1684.
Newspaper correspondence in violation of, 1574.
Photographing fortifications forbidden by, 1-578.
Provost court during civil war, 1577.
Purchase of movable property in Porto Rico,
1583.
Retaliation justified by, 1572.
Right to property in Porto Rico under treaty,
1583.
Seizure of moneys as justified by, 1575.
Special tribunals appointed under, 1577.
Suppression of newspaper as justified by, 1573.
Suspension of local laws under, 1576, 1780.
Taxing enemy justified by, 1575,1581.
Title to real property during military occupa-
tion, 1579.
Validity of law promulgated by military com-
mander, 1580.
Violation of, 1569, 2346, 2349, 2350.
Lease: (See Rent.)
Acceptance of rent as waiver of forfeiture for
assignment of, 1585.
Amount of rent to be paid under, 1591.
As to bids for, 1591.
Assignment of, 1585, 1587.
At will as distinguished from license, 1600.
Date on which it becomes operative, 1.592.
Executed later than date in, 1592.
For a number of years —
At a fixed rent not legal, 886.
At a nominal rent legal, 886.
In duplicate, 1590.
Lands, mineral or phosphate, excepted, 1.590.
Of United States lands, 2087.
Payment of rent where land in litigation, 1588.
Procedure where rent claimed by two parties,
1588.
Public property, disposition of proceeds, 2084.
Revocable and not to exceed five years, 1590.
Revocable in lieu of license, 1590.
Termination of, by nonpayment of rent, 1586.
Written notice of renewal, etc., not a binding
contract, 882.
Leaves of absence: {See Absence.)
Allowance during, 1593.
Annual, of clerks of War Department, 803.
Authority of Chief of Engineers to grant, 1597.
Authority to grant, 1597.
Cumulative, 1596.
Extra-duty pay for work while on, 1332.
For indefinite period for clerks of War Depart-
ment, 806.
Leaves of absence — Continued.
Mileage where terminated before expiration,
1669-1671.
Pay during, 1593.
Payment of telegrams applying for, 477.
Period of, not to include absence in suspension,
1.594.
Sick, of clerks of War Department, 803.
For sickness in family, 801.
Termination of, 1595.
To student officers, 1.598.
Without authority by War Department clerk,
800.
Leavenworth Military Prison:
Subsistence stores furnished for, 2389.
Legal holidays. {See Holidays.)
Legislative department:
Authority to restore officers to Army, 2367,2373.
Letters:
As evidence, 1316.
As waiver to claims against the United States.
881.
Containing proposals, 866, 879, note, 881.
Ordering material not binding on United
States, 884.
Prisoners', 1472.
Levees, Mississippi:
Construction of a public work, 1236.
Llai)lllty:
For deficient or damaged property after sepa-
ration from service, 383.
To trial after separation from service, 117, 118.
License: (See Revocable license.)
Acceptance of, 1599.
Defined, 1599, 1614.
Ejectment after revocation of, 1609.
For erection of church, 1615.
For irrigation purposes, 1608.
For landing of ferry, 1604.
For use of soil under navigable waters, 1605.
Form of, 1614.
Grant of interest invalidating, 1600, 1613.
Introduction of liquors into Indian country,
1500, 1506.
Lease at will as distinguished from, 1600.
Merchants', for seller of condemned stores,
2278.
Not assignable, 1610, 1613.
Not authorized where injuring reservation,
1606, 1608.
Not permitting appropriation of property, 1601.
Of property under military government, 1584.
Oral, 1614.
Purposes granted for, 1611.
Revocable lease in lieu of, 1590.
Revocation of, 1607.
To commit waste, 1616. , r
To trade with Indians, 1499.
Where exclusive jurisdiction not in United
States, 1612.
Where land not proi)erty of United States. 1602,
1603.
Where United States has right of conservation
only. 1602, 1603.
INDEX.
839
License — Continued.
Without right of way, 1609.
Without usufructuary intercut, 1599.
Liens (III contractors, 94.5-947, 952.
LiirhtN iinil fnci:
Apjiroprirttiou for, 4t")2.
Llifhts for Kxccutlve Mansion ^rountls. etc., 4»i.'S.
LInil). artificial. (Sec Artificial Limb.)
Limit, aicc:
Kocnlistmeut, 21.54.
Limits of arrest, .504.
Limitation as to retirinif l)oariIs, 2193.
Limitation of prosecntion, ](« A. W.; 314-322, 7M,
1077, 1100-1102, lti79.
Limitation, statute of: (See Statute of limitation.)
Desertion, 103 A. W.; 1077, 1100-1102.
How pleaded, 320.
Instances of no impediment to, 315-317.
Limitation of jurisdiction of Court of Claims,
7!S1.
Military commissions, 1679.
Waiver, 320.
Line of duty:
Absence on furlough within meaning of term,
1620-1623.
Absence on pass within meaning of term. 1625.
Construction of term—, 1617-1625.
By Interior and War Departments, 1623.
Instances of disabilities received when not in,
1618, 1619.
Negligence of disabled soldier, 1622.
Liquidated damages:
Contracts, 918, 921-923, 937, 939.
Liquors: (See Safe of intoxicants.)
Destruction of, in Indian country, 1503, 1504.
Introduction of, into Indian country, 97, 1.500,
1501-1504, 1506, 2287.
Sale of, by post-exchange in prohibition States,
2015.
Use of, by civilian, 2288.
Local option counties:
Sale of intoxicants, 2287.
Locality:
Meaning of term, 964.
Loss of ranli or tiles:
Approval of .sentence, 1627.
Continuing punishment, 1626.
Effect of, 1626, note.
Execution of sentence, 1632.
Lineal as afTccting relative rank, 1630.
Notification of, to Secretary of War, 1627.
Objections to imposing, 1626, note.
On regimental list, 1629.
Pardon, 1628, 1631, 1632.
Promotion in effect a pardon, 1628, 1632.
Remission of, 1628, 1631, 1632.
Restoration. 1871.
Louisiana:
Detail of officers upon military courts, 1838.
Lowest liidder. S.50. 8.52, 855, 869.
Lyini.' out of (|uarters, 31 A. W.
Mackinac National Park:
Tax on private improvements in. 2433.
Malls:
Remittance, pay, or money by, 1972.
Malpractice by medical officer, 159.
Manslaughter (see Murder):
Articles of war, chargeable under, 1633.
In time of peace, 1633, 1635, 1636.
In time of war, insurrection, etc., 58 A. W.; 88,
1633, 1634.
Ju.stifiable homicide, distinguished from, 1636.
Murder, charged as, 148.
iSIurder, distinguished from, 1750, note.
Of .soldier by officer, 1634-1636.
Maps:
Prepared by river commissions, disposition of,
2269.
Marine Corps:
Enlistnlent of deserter from, 1260.
Service in, not service in the Army, 1276.
Trial for desertion from Army of a deserter
from, 1097.
War service in, for retirement, 2222.
Marine- Hospital Service:
Admission of officers of, to Hot Springs Hospi-
tal, 1155.
Marine otHcers:
With regular officers on courts, 78 A. W.
Marine who deserts and enlists in Army, 74.
Marriage:
Authority for prohibiting soldiers from con-
tracting, 1638.
Officer can not solemnize, 1637.
Of .soldier, not military offense, 1638.
Wives of soldiers introduced into post, 1638.
Married men:
Enlistment of, 1257.
Married woman:
As surety, 550.
Pay of insane husband, 1517.
Martial law:
Authority of Commanding General under, 1640.
Civil proceedings enjoined under, 1641, 1644.
Declaration of not necessary, 1645.
Defined, 1639, 1644.
Disting^uished from military government, 1639,
note.
Effect of, 1640, 1644.
Jurisdiction, 58, note.
Military not under State authority, 1646.
Not authorizing excess or undue violence, 1639.
Termination of, 1642, 1645.
Material and labor, 945,947,949-952, 1491.
Authority of Secretary of W^ar to accept dona-
tions of, 1491.
Delivery, contracts, 943.
Maximum punishment: (See Punishment.)
Authorized confinement explained, 16.52.
Dishonorable discharge because of previous
convictions, 1647.
False swearing, 1986.
Legality of .sentence exceeding. 1650, 1651.
Meaning of word day, 1649.
Offense by sub.stitution of ptinishment made
triable by inferior court, 1648.
840
INDEX.
Maximum punishment — Continued.
Substitutions of punishment, 1{)48, 1652-1654.
Trial by general court for offense within juris-
diction of inferior court, 1(>47.
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 <if reviewing autliority,
2235, 2236.
Modifications of contracts, 856, note, 857, 858, 907-
911.
Money: (See Public ^foney and Trcamiry Depart-
ment. )
Accountability for, 1123, 1124.
Collected upon contractor's Ixnid, disposition
of, 968.
Donated to the United States 482.
Due contractor, attachment of, 941.
Due insane officer, 1.517.
Embezzlement of—, 60 A. W.; 114, 119, 120.
Defense, 155.
Defined, 154, note, 155-157.
Illegal and unauthorized jiaymcnts from
public funds, 157.
Not accounting for public money received,
156.
Erroneously paid on final statements, 1349.
In public depository, how drawn upon, 1126.
Larceny of, 60 A. W.; 113.
Loaning, at exorbitant rates, 137.
Lost in transitu, 1972.
Misappropriation of, 60 A. W.; Ill, 116.
Paid on forged voucher, 1410.
Paid upon purchase of discharges —
Disposition of, 1173.
Refundment of, 1174.
Prize, right of Army to share, 666.
Remittance by mail, 1972.
Remitting without authority, 1972.
Restitution of public, 1874.
State .soldiers' homes, application, 2339.
Withheld by one department to satisfy debt due
another, 937.
Monthly returns of reu^inients. etc., 7 A. \V.
Monuments, etc. :
At Gettysburg, 46i , 1772.
Erected by United States in State, 1562.
Where cession of jurisdiction unnecessary, 686.
Moral ol)Ii(|uity:
Not cause tor retirement, 2103.
Morning report Ijoolc as evidence, 1313.
Municipalities:
Conveyance of right of way, 2266,2267.
Office in, defined, 1817.
Murder: (See Manslaughter.)
Defined, 1750, note.
In time of war, insurrection, etc., 58 A. W.; 88.
In violation of laws of war, 1684.
Jurisdiction of courts-martial over, 148.
Of prisoner of war, 1750.
Sentence and punishment for, 2318.
Musician:
Chief, status of, 734, 735.
Principal —
Not a noncommissioned officer, 411.
Not eligible for appointment as second lieu-
tenant, 411.
Muskingum River improvement, Oliio:
Lease of, 158.5, 1586.
Muster:
Certificates furnished mustering officer as to
absences, etc., 12 A. W.
False, penalty for, 5, 14 A. W.
Of Indian scout as farrier or blacksmith, 1510.
Penalty for taking money, etc., for, 6 A. W.
Muster .and pay rolls:
Absence of less than a day not to be noted, 378.
Evidence, 1293, 1311.
Official papers, 1843.
Purposes of, 378.
To .show service rendered, 37s.
Muster-In:
A mere matter of formal acceptance, 1231.
Con.structive, 1752, 1753.
Enrollment di.stinguished from, 1752.
Of drafted man not necessary, 1226, 1229, 1231.
Of substitute not necessary, 1231.
Of volunteers, 2444, 2447.
Record of, conclusive evidence, 1751.
Volunteers, penalty envelope, 1978.
What constitutes, 17.52, 1753.
Muster-out:
Date of, 1756, 1759-1762.
Effect of, 1755.
Examination before, 1760.
Notice of, 1760.
Not retroactive, 1851.
Of absentees, 1760.
Of officer after regiment, 1757, 1758.
Of volunteer officers, date of, 1154.
Pay to date of, 1895.
Payment affecting date of, 1762.
Retention in service after, 1757-1759.
Time and place of, same for whole organization,
1760.
Mutiny:
Defined, 31.
INDEX.
843
Mutiny — Continued.
Extenuated by oppressive acts, 33.
Mere acts of insubordination or dLwrderly con-
duet not, 31.
Penalty for, 22 A. W.
Penalty for failing to quell, etc,, 23 A. W.
Refusing to obey unlawful order not, 32.
?ianie: (See Misnomer.)
Variance in, 24-J3.
National cemetery:
Appraisement of land for, 1763.
Appropriation for maintenance of, 1765, 2107.
Cession of jurisdiction necessary, 1764.
Disposition of unservicable property, 2281.
For volnnteer home, 1770.
Gettysburg —
Burial of soldiers at, 1771.
Erection of monument at, 1772.
Jurisdiction over, 676, note.
Land by right of eminent domain, 1769. *
Railroads, encroachments, 2121.
Right of way to, 2266, 2267.
Superintendents —
Jurisdiction over, 168, 1767.
Power of, to arrest, 1766.
Removal from office of, 1767.
Status of, 1767.
National guard:
Enlistment in Army, not a discharge from, 12S1.
Loan of public property to, 2095.
Status of, in militia, 1729-1731.
National Home for Disal)le(I Volunteer Soldiers:
Court-martial, 1038.
National military parlis:
Purchase of land for, 230-1.
National parits:
Private property, taxation, 2433.
National Soldiers" Home:
Forfeitures accruing to, 1384, note.
Natural waterways, 1493.
Naturalization: (See Citizciiship.)
Enlistment, 1271.
Military service, 401, 421.
Service in Navy, 402.
Navigable waters: (See Nai<gation.)
Construction of fish weirs in, 1783, 1784.
Dumping in, 1786, 1787, 1794.
Floatable .streams as, 1793.
Ice, harvesting of, on, 1795.
Laying water pipes on bed of, 1792.
License for use of soil under, 1605.
Not wholly within a State, 613-615.
Of a State, when rivers are, 614.
Of United States-
Distinguished from those of States, 1777.
What constitutes, 1777.
When rivers arc, 614.
Property in bed and shore of, 613, 1488, note,
1559, 1773.
Removal by United States of fish nets, etc.,
from, 1711,1712,1781.
Right of conservation of, 613.
Toll, illegal levying on vessels, 1790.
Navigable waters — Continued.
Unrestricted grant to railroad includes author-
ity to bridge, 625.
Wholly within a State—, 613-616.
Legislation concerning, 615.
Navigation: (See Navigable rmters and Ohntruc-
tions to navigation.)
Authority of Secretary of W'ar over, 1773-1775.
Bayonne Canal, N. J., subject to laws of, 1778.
Boom, construction of, 1784.
Bridges as obstructions to, 615, note, 617, 632-635,
638-640.
Dumping of deposits and ballast, 1786, 1787, 1794.
Erie and Atlantic basins. New York Harbor,
status of, 1786.
Establishing harbor lines in aid of, 1782, 1786,
1788.
Fish nets, etc., removal of, by United States, 1711,
1712, 1781.
Fish weirs, construction of, 1783, 1784.
Floatable streams as navigable waters, 1793.
Ice, harvesting of, 1795.
Improvement to, as affecting private rights,
1779.
Laying water pipes on bed of river, 1792.
Navigability of waters of United States, 1777.
Necessary obstructions to, 1497.
Obstructions to — , 1773-1777.
A criminal act, 177C.
Removal of, by Secretary of War, 1775.
Of canals, etc., rules and regulations for, 1493.
Permit to construct docks, etc., authority
under, 1785.
Power of Congress to legislate in regard to,
613, 616.
Power of conservation of, improvements to, 1780.
Property in beds and shores of navigable
waters, 613, 1488, note, 1559, 1773.
Punishment for obstruction of, 1774, 1775.
Secretary of War alone to determine as to
obstructions to, 635.
Toll, illegal levying on vessels, 1790.
Use of revetment by private parties, 1791.
Wrecks, removal of, 1774, 1789.
Naval cadet, 654 note, 658.
Navy:
Admission of discharged enlisted men of, to Hot
Springs hospital, 1457.
Enlistment of deserter from, 1422.
Status of paymaster's clerk, 1970, note.
Necessary supplies —
Contracts for, 888.
Neglect of duty —
To the prejudice, etc., 159.
Neglect to assume command, 159.
Negligence as affecting right to pension, 1622.
New trial: (See Tmi?.)
When authorized, 1796.
Newspaper —
Violation of law of war by, 1573, 1.574.
Nolle prosequi:
Authority of judge-advocate to enter, 1532
When entered, 1797.
844
INDEX.
NoiU'uiiinilNsloueil ofBcer:
Appointment as second lieutenant, 411.
Appointment as commissary sergeant, 838.
Auctioneer for public stores, 2284.
Complaints of soldiers to, 839.
Date of warrant, 1798.
Lance sergeant not a, 411.
Not eligible, after discharge, for promotion, 426.
On detached service, appointment of, as second
lieutenant, 411.
Principal musician not a, 411.
Reduction to the ranks, 2149, 21.50-2152.
Retention of warrants on reduction to ranks,
2150.
Suspension, 2423, note.
Violence, etc., to, how charged, 21.
Northern Pacific Railroad.
Right of way, 2261.
Notaries public:
Acceptance of fees as, by clerk of War Depart-
ment, 807.
Enlisted men as, 1819.
Notice:
Acceptance of resignation, 2184, 2186-2188.
Action of reviewing authority, 2224, 2244.
Con.structive, 1848, 1850, 1852.
Discharge, trial before, 1039.
Dismissal by sentence, 1197.
Personal and official, 1848-1850, 18.52.
Removal of sunken vessel, 1789.
Notice to alter bridges, 632-634, 636-640:
Hearing of owners, 633, 634, 636, 637, 640.
Nurse, contract:
Claim for property lost on United States ship,
796.
Nurses:
Hospital Corps, 1452.
Trial of, 162.
Oath: (See Perjury.)
Administered by judge-advocates of depart-
ments, 1803.
Administration of—, 1819.
To sureties on bonds, 540, 553.
Affidavits, before whom taken, 1800, 1802.
Authority to administer—, 1799-1803.
Given by statute only, 1799, 1800.
Board of survey can not administer, 532.
By members of military commission, 1679.
Courts of inquiry, members and recorder, 117
A. W.
False, 60 A. W.
Fee to officials not officers, 1801.
Judge-advocate, 85 A. W., 274.
Judge-advocate, noted in record, 2136/', 2143.
Member of court—, 84 A. W.; 225-229.
Affirmed, 225.
As shown in record, 213(i/". 2143.
Before civil courts, 84 A. W.; note.
Secrecy, 228, 229.
Of enlistment, 2 A. W.; 1251.
Of office—, 1804-1810.
Administered to persons in postal service, 1809.
As affecting term of service, 1810.
Oath — Continued.
Of office — Continued.
Authority to administer, 1808.
Modified or qualified form not authorized,
1806, 1807.
When and by whom taken, 1810.
Physician not requiring, 1805.
Profane, 53 A. W.
Reporter, 2169.
Witness, 92 A. W.: 274.
Obstructions to narlgatlon:
By bridges, 615, note, 617, 632-635, 638, 639, 640.
Necessary, 1497.
Removal of, 1488, 1489.
Secretary of War alone to determine whether,
635.
Unauthorized, liability for, 1497.
Offenses:
^Amenability under reenlistment for previous,
21.53.
Capital —
As matter of aggravation in charge, 714.
Cession of jurisdiction over, 673, 674.
Civil and military trials for same, 306, 309.
In foreign country, jurisdiction over, 1041.
Instances of trial for same, 310-312.
Made punishable by Articles of War, 7, 8.
Manslaughter, 1633-1636.
Marriage of soldier not an, 1638.
Military, 1695.
Militiaman refusing to obey order of President,
1732.
Minor included in greater, 304.
Not chargeable as conduct prejudicial, etc., 160.
Not territorial, 169.
On reservations, 673, 693.
On United States transports in harbors, juris-
diction over, 759.
Spy, illustrations of , 2347-2349.
Surrender of, to civil authority — , 59 A. W.;
94-106.
Application for, 95, 100.
Triable by military commission, 1680-1684.
Trial for same by military and civil court, 1036.
Two trials for same, 102 A. W.; 303-313.
Office: {Sec Civil office.)
Adjutant-general of District of Columbia, 1830.
American Society of Civil Engineers, 1828.
Army officer not to hold civil, 1814-1817.
Assignment to, in Cuba and Porto Rico, 1836.
Assistant to Deputy Commissioner of Indian
Affairs, 1835.
Assistant to postmaster, 1833.
City and county, 1829.
City water engineer, 1817.
Commander of State militia, 1817.
Consulting engineer to State engineer, 1817.
County physician, 1817.
Defined, 1811, note.
Diplomatic or consular service, 1825, 1826.
Disqualification to hold, 1225. (See Disqualift-
cation. )
INDEX.
845
Office — Continued.
Distinction between oflfiee and employment,
1816.
Election of retired officer to, 2110, 2111.
Enlisted men holding, 1819.
Exercising functions of, 181G.
Function of regimental quartermaster not an,
419.
In Regular Army, term of, 397.
International Boundary Commission, 1832.
In Territory, 1824.
Master machinist, 1822.
Member of city council, 1821.
Not filled until accepted by appointee, 408,
note.
Oath of, 1804-1810.
Officer detailed by the President, 1818.
One person may legally hold two, 386. note, 843,
1812-1837.
Park commissioner, 1817.
Postmaster, officer acting as, 1833.
Professor of United States Military Academy,
1812.
Quartermaster employee, 1821.
Resignation of officer, 1825.
Retired enlisted men holding, 1820, 2220.
Retired officer appointed to. by the President,
2210, 2211.
Retired officer holding, 1813, 1823, 2202, 2210-
2211.
River commission, 1827.
Sons of Veterans, United States of America, 1834.
Tenure of, in Regular Army, 2160.
The World's Exposition, 1831.
Trustee Cincinnati Southern Railroad, 1817.
Vacating, by accepting another, 1812, 1813-1818,
1822, 1825-1827, 1831-1833, 1835.
Work for State or municipality not, 1818.
World's Columbian Commission, 1831.
Officer:
Absence without leave, how charged, 377, note.
Absent from special muster, 1841.
Absent without authority, 1848.
Accepting compensation from private parties,
etc., 144.
Accepting presents from foreign governments,
1376, note.
Accountability of, for property, after separation
from service, 383.
Acting judge-advocate, 1854.
Adjutant-general of District of Columbia, 1830.
Advancements, 1927.
Allowances as college professors, 1915.
Amenability of, to injunction of State court, 743.
Amenability of, to suit or process of Territorial
courts, 741.
Amenability to trial for releasing United States
prisoners, 745.
American Society of Civil Engineers, 1828.
Appointment of—, 2:^70,2373,2407.
From supernumerary list, 2407.
Not vested in Congress, 2373.
Guardian over, for drunkenness, 1040.
Volunteer, 431-433.
Officer — Continued.
Appropriation by Congress to defray amount of
judgment against, 746.
Army, seizure of public property illegally dis-
posed of, 2273, 2275.
Arrest of, 65 A. W.; 503.
As counsel for accused, 9S5-990.
As surety, 536.
Assaulting, beating, etc., wife by, 140.
Assignment of —
On promotion, 2072.
Pay account, 1892, note.
To office in Cuba and Porto Rico, 1836.
Assistant to Deputy Commissioner of Indian
Affairs, 1835.
Assistant to postmaster, 1833.
Attachment of property of, 738, 739.
Attempting subornation of perjury by, how
charged, 125.
Attempting to induce officer to join in fraud,
how charged, 125.
Attending courts, traveling expenses of, 447.
Awaiting retirement, allowances, 1952.
Bigamy, 139.
Change of date of commission, 2071.
Change of record of, after dismissal, 1206.
City water engineer, 1817.
Civilian, restoration as, 1869.
College professors, allowance, 1915.
Columbian Commission, 1831.
Commander of State militia, 1817.
Commanding —
Approval of sentence by, 104, 109 A. W.; 323-
335.
Order of, 1853.
Commission-
Acceptance of, 408.
Date from which it takes effect, 408.
Commutation of quarters for, residing at Na-
tional Soldiers' Home, 2332.
Constructively mustered in, 1840.
Consulting engineer to State engineer, 1817.
Contract surgeon not an, 384, 385, 388, note.
Counsel —
To defend in civil proceedin 975.
To prosecute claim against U. S., 976.
County physician, 1817.
Date of commencement of pay of, 408.
De facto, 1215, 1216, 1840, 1841.
De jure, 1841.
Deceased —
Effects, accountability for, 127 A. W.; 373.
Effects, inventory of, 125 A. \V.
Interment of, 1954, 1965.
Pardon of, 1866 note.
Deficiency of or damage to property, 1839.
Defining term civil office, 1817.
Depriving of sword of, 65 A. W.
Detail—
At colleges, 829-836.
By the President, 1818.
Upon militia courts, 1838.
Diplomatic or consular service, 1825, 1826.
Disability, 1841.
84()
INDEX.
Officer — Continued .
Dismissal of—, 99 A. \V., 106 A. W., 107 A. W.;
336-338, 1811, 2320.
By appointment of successor, 1206-1209.
By order, does not disqualify to hold, 1212.
For breach of arrest, 65 A. W.; 170, 174.
Forfeiture, 1393.
Restoration after, 2042.
Retirement or resignation, 2294.
Drunk, disorderly, etc., how charged, 129, 130.
Duplication of pay accounts, 145-147.
Duty of, in arresting civilians, 519.
Effect of retirement on promotion, 2075.
Employment by city, State, or municipality,
1818, 1829.
Engineer, assignment of , on Di5bris Commission,
1249.
Erroneous payments, stoppage, 2381).
Examination —
For Ordnance Corps, 1863.
For promotion of, 1318-1320.
E.xercising functions of office, 1816.
Expenses of clerk of, 813.
Failure of, to support wife and children, 141.
False-
Report, etc., by, how charged, 124, 125.
Representations by, 134.
Swearing, 1985.
Families of, allowances, 1918.
Forfeiture of pay, 1902, 1903.
Former, restoration of, 2370, 2372, 2373.
Fraudulent divorce proceedings by, 141.
Fugitive from justice, 1876.
Gambling with enlisted men, etc., how charged,
131.
General, confirmation of sentence of, 10s A. W.
Harsh treatment of inferiors, 1875.
Holding civil office—, 1814-1816.
In a Territory, 1824.
Two offices, 1812, 1815, 1816-1837.
Honorable discharge to dismissed, 2368.
How deprived of pay, 1896.
In charge of post exchange, 2006-2008,2016,2017.
In distant hospital, 1848.
Inferior, appointment of, 410.
International Boundary Commission, 1832.
Immune, rank of, 2131.
Insane, tender of resignation, 2186.
Issuance —
Of commission of prior date, 2363.
Of new commission, 2071.
Killing of soldiers by, 1634-1636.
Lance sergeant not a noncommissioned, 411.
Liability —
For payment on forged voucher, 1410.
For subsistence stores, 2388.
To taxation, 2426-2428.
To trial for State penal offenses, 754.
Loss of rank or files, 1626-1632.
Manslaughter by, 1633-1636.
Marine, with Regular Army officers on courts,
78 A. W.
Marine-Hospital Service, Hot Springs Hospital,
1455.
Officer — Continued.
Medical, 1658-1661. (See Medical officer.)
Mileage of, 1669-167(5.
Militia-
Appointment of, 1734, 1736.
Rank, 124 A. W.
Trial of, after separation from service, 118.
Moneys deposited with, for safe-keeping, 2375.
Mounted, pay of, 1909, 1926.
No power to solemnize marriage, 1637.
No vested right in promotion, 2071.
Noncommissioned —
Appointment of, as second lieutenants, 411.
Illegal sentence, 2152.
In desertion, reduction to ranks, 2151.
Power of, to receive complaints, 839.
Principal musician not a, 411.
Reduction to the ranks, 2149, 2150-2152.
Staff, appointment of clerk as, 811.
Not entitled to demand arrest, 502.
Notice of order to, 1848, 1850, 1852.
On United States transports, summons served
on, 760.
Order, when operative, 1848-1850, 1852.
Pardon —
Constructive, 1873.
Grounds for recommending, 1875, 1876.
Of deceased, 1866, note.
Park commissioner, 1817.
Pay-
Accrued, 1895.
As acting judge-advocate, 1854.
Awaiting orders, 1906.
Awaiting sentence, 1896.
Deceased, 1839.
In arrest, 1896.
Increase, 1907.
Prior to muster, 1840.
Prior to appointment or muster in, 1895.
Reduction of, 1262.
Restoration of, 1869, note.
Separated from service, 1895.
Stopped, 1841.
Penalty envelopes, 1973, 1975, 1976, 1980.
Postmaster, 1833.
Preferring charge, interpreter, 1519.
Principal musician not a noncommissioned, 411.
Prisoner with enemy, 1848, 1852.
Privileged communications, 1843.
Professor United States Military Academy, 1812.
Promotion of—, 2067-2072, 2075-2077.
Enlisted man to, 2073, 2074.
In case of disability, 2067, 2075.
Under sentence, 1873.
While member of court, 1666, note.
Property accountability of, 10, 15 A. W.; 380-383.
Power of the President to dismiss, 1210.
Publication of improper statement, 2356.
Publishing of, for cowardice or fraud, 100 A. W.;
301, 302.
Rank—, 123 A.W.; 408, 409, 2122, 2128, 2131.
Affected by consolidation, 2128.
Fixed by appointment, 2122.
Of volunteer and regular, 123 A. \V.
INDEX.
847
Offloer — Continued.
Readmission of separated, 2042.
Reappointment of di.smissed, 1883, 2373.
Receiving prisoners, 67, 68 A. \V.
Redress of wrongs of, 29 A. W.; 36.
Reduction to tlie ranks, 2148.
Regular—
On what courts may sit, 77 A. \V.; 208, 20',).
Witli marine officers on courts, 78 A. W.
Relations between company commander and
noncommissioned, 839.
Relative rank, 408, 409, 2124-2129.
Release from arrest before trial, 71 A. W.; 178.
Release of prisoners by, 69 A. W.
Relieved as acting judge-advocate, 18.54.
Remitting money or pay by mail, 1972.
Remuneration for services, 1840.
Rendering service to foreign power, 1375.
Residence of—, 2177, 2178, 2180-2182.
Minor child of, 2180,2181.
Resignation of, 1825, 1895.
Restoration —
After dismissal, 1199, 1200, 1202, 1214, 1215, 1216,
1841, 1869, 2367-2369, 2373.
Of pay, 1869.
Of resigned, 2042.
Of retired, 2042.
Restored, placed on retired list, 2370, 2372.
Restored to rank, pay of, 1895, note.
Retired —
After forty years' service, 2205.
After thirty years' service, 2205.
Appointment of, as volunteer ofticers, 2211.
Appointed to office by the President, 2210.
2211.
Burial expenses, 2114.
Change of station allowances, 2198.
College detail, 2211.
Contracts, 957.
Copyrighting drill regulations, 969.
Detail of, at colleges, 829-837.
Election of, to office, 2110, 2111.
For disability, 2192, 2195-2196, 2203, 2204, 2207,
2208.
For drunkenness, 2196.
Holding office, 1813, 1823-1826, 2202, 2210,2211.
Retired-
Jury duty, 2201.
Mileage, 2212, 2213.
As witness, 2213.
On report of examining board, 2207, 2208.
One year's pay, 2198.
Ordered to remain within jurisdiction of civil
court, 2215.
Pay of, 1895.
Pay exempt from taxation, 2426.
Service as cadet, 2205.
Service pay, 2199.
Soldiers' Home, 2211.
Status of, 2209, 2295.
Trial of, 2200.
Witnesses, 444.
While member of court, 1666, note.
Wholly, 1819.
nicer — Continued.
Returns of ordnance stores, etc., 1861.
Revenue marine, admission of, to Hot Spring
Hospital, 1455.
Reviewing authority. (See Reviewing authority. )
Revocation of order of dismissal, etc., 2042.
Right to-
Copyright when acting officially, 971.
Pay while held as prisoner of war, 2062, 2063.
Tender resignation, 2183.
Vote, 2182.
Rights of, on supernumerary list, 2107.
River commission, 1827.
Sale of—
Condemned .stores by, 2278.
Intoxicants by, 2290.
Intoxicants to, 2288.
Material for light and fuel, 1944.
Sentence of dismissal, 1849, 1852.
Sons of Veterans, United States of America,
1834.
Subject to Articles of War, 64 A. \\ .
Subject to detail on courts-martial, 1022.
Suits by creditors against, 7.55.
Summary dismissal of, 1130, 1849.
Supernumerary, recommissioning, 2128.
Suspension, 2408-2424.
Duties, 2420.
Taxation of, 2179. (.See Tax.)
Term as used in Articles of War means commis-
sioned officer, 16.
The World's Exposition, 1831.
To keep good order in commands, 54 A. W.
To subscribe to Articles of War, 1 A. W.
Transfer —
From Volunteer to Regular Army, 432.
Rank affected by, 2127.
To supernumerary list, 2407.
Transportation of remains of, 479.
Trial by-
Inferior, 79 A. W.; 210, 211.
Military and civil court for same offense, 1036.
Trustee Cincinnati Southern Railroad, 1817.
Unassigned, dismissal of, 1217.
Upon civil work, allowances, 1916.
Use by United States of patent of, 1S.S7.
Vacating office, 1841. [Qee Office.)
Volunteers-
Appointment of regimental, 431.
Contracts, 957.
Date of muster out of, 1154.
Discharge, 24.52.
Expiration of service when member of court,
1666.
In general, 123 A. W.; 118,431,957,1154,1346,
1666, 17.55-1762, 1837, 2167, 2444-2456.
Muster-out of, 17.55-1762.
Of civil war, extra pay, 1346.
Rank, 123 A. W.
Removal of disability, 2167.
Trial of, after separation from service, 118.
Violation of promise or pledge on honor by,
how charged, 128.
Visitinggambling house, etc., how charged, 131.
848
INDEX.
Officer— Continual.
Wholly retiring, 1849.
Offlror's Kcrvaift: {See Scrrntits.)
Admission to hospital, 1S4'2.
Subsistence supplies. 1S42.
Official paperH: (See Antlicnticdtion.)
Authentication of. copies of, 184.5, 1846.
Character of, defined, 1.S43.
Confidential, 2298.
Copies of records, etc., as evidence, 1293-1295,
1309, 1310, 1312, 1313, 131.5, 1845, 1846.
Destruction of, 1844.
Furnishing copies of, 1843, 1846.
General or special orders, 1843.
Inspection of, 1843.
Not public records, 1843.
Officers' reports and communications, 1843.
Privileged communications, 1843.
Records of military courts, 1843.
Omissions of restrictions In former iipproprla-
tlons, 463, 464.
One mile from camp without leave, 34 .V. W.
Opcn-niiirket purchases. 8.59, 862, 864, 865.
Rcpurts. .''.Vj.
Opinion:
Expressions of, as evidence, 1289, 1290.
Of members of courts of inriuiry, 119 A. W.;
369-371.
Opium:
Unrestricted sale of, 2289.
Oral agreement, 880, 883.
Order:
Absence from roll call, 1855.
Acceptances of resignations not retroactive,
1851.
And y)apers, authentication of copies of, 1312.
Appointments not retroactive, iSol.
Authentication of, convening court, 1858.
Commanding officer as justification for acts
done, 1853.
Convening court-martial, 1857-1859.
Copy attached to record, 2136c.
Damage suits on account of, 1853.
Date of taking effect, 1849, 1860, 1852, ia54, 1857.
Dated on Sunday, 1857.
Denned, 1847.
Directing discharge, suspension or revocation
of, 1140.
Discharges not retroactive, 1851.
Disciplinary i>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<'<l, etc., 185s.
Issued by .'iccretary of War the act of the
President, 1847.
Not retroactive when, 1851.
Notice constructive, 1848, 18.50, 18.52.
Notice of, personal, 1848,18.50,1852.
Official copies of, as evidence, 1294, 1312.
Order— Continued.
Of promulgation-
Defined, 1860.
Not necessary to validity of sentence, 1K60.
Of superior officer —
Civil liability in obeying, 23, note.
Disobedience of, 21 A. W.; 22-30.
Post commander, 1855, 1856.
Pay of officer, 1849, 1852.
Prisoner of war, 1848, 1852.
Promulgating sentence of forfeiture, date of,
1407.
Promulgation at military station, 1848.
Purporting to revoke executed order of dis-
missal, 1214-1216.
Ratification by Secretary of War, 1851.
Reading of, to accused at trial, 2136c.
Reassembling court for revision, 22.50.
Remitting—
Forfeiture of pay, date of, 1407.
Sentence can not be revoked, 2166.
Reviewing authority, 2236, 2237, 2241-2244.
Secretary of War representing President, 1847.
Sentence of dismissal, 1849, 1852.
Setting forth specifications to charges, 1860.
Summary dismissal by, taking effect of, 1204,
1849.
Unlawful-
Disobedience of, 24, 32.
Refusing to obey, not mutiny, 32.
What consists in disobedience of, 25.
When operative as to officer, 1848-1850,18.52.
Wholly retiring an officer, 1849.
Ordnance:
Embezzlement of, 60 A. W.
Examinations for promotion in corps, 1319.
Larceny of, 60 A. W.; 113.
Misappropriation of, 60 A. W.; 116.
Sergeant-
Allowances of, 1864.
Compensation as timekeeper, 1865.
Employment of, in the United States Engi-
neer Department, 1929.
Store.s —
Returns of, by colleges, 835.
Sale of, 2273.
Ordnance Department:
Accounting for stores to Secretary of War, 1861.
Allowances of sergeants of, 1864.
Ammunition, returns c)f, 1861.
Appointments of officers in, 1863.
Arms, returns of, 1861.
Chief of—
Coiirt appointed by, 212.
Returns to, 1861.
Clothing allowances to sergeants of, 1864.
Examination for promotion, 1319.
Issues to Executive Departments, 1861.
Leaves of absence of clerks at arsenals, 812.
Ordnance sergeant as timekeeper, 1865.
Property-
Condemnation of, 1862.
Inspection of, 1862.
Returns of stores, etc., to Chief of, 1861.
INDEX,
849
Packers, or chief packers:
Extm-diity pay, 1331.
Papers, official: (See Official Palters.)
Copies of confidential, 2298.
Papers, useless:
Destruction of, 1844.
Pardon: (See Confinement an.A IniprUonment.)
Accomplice, 379.
An admission of guilt, 1879.
Applications for, 1S76, 1877.
As plea in bar of trial, 1998.
Charge of desertion, 1879.
Constructive, 351, 1873.
Continuing punishments, 1871.
Convicted deserter, 1867, 1872.
Deceased officer, 1866.
Deceased soldier, 1866.
Delegating pardoning power by Congress, 1880.
Delivery and acceptance, 71, 1866, note.
Deserters, 71, 72.
Desertion during war of rebellion, 1877.
Disabilities, removal of, 1867, 1872, 1879, 1881.
Discharge by sentence, effect of remission on,
1870.
Discharge from service, 1879.
Disqualification to hold office. 122.5.
Does not add to competency of witness, 1298.
Enemy, right to rent not restored by, 1868.
Enlistment, 1272, 1273.
Executed sentence, 343, i869, note, 187P
Exercise of pardoning power, 1866, j!>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 <llM|uallll('iitliiii fur iiniiiiiilloii iif i-ii-
llstt'il man, IJT.
riljslciil restraint of an-iiscil nlillc on (rial, KMT.
Physician:
Employment of, in lieu of medical oflicer, ItitJO.
Oath not required by, 1805.
Pilots, eU: :
Trial of, 103.
Pipes, water:
On bed of river, ITyJ.
Plseary, rljfht of:
In waters of Territory, 1712.
Plea:
Accused standing mute, 89 A. W., 1999.
As set forth in record, 2136<;.
Demurrer, 199.'), note.
Drunkenness as a, 1233, note.
In abatement —
For errr ■ in charge, 698, 700, 730.
Matters taken advantage of by, 199-5.
Waiver of right to, 1995.
In bar of trial, 1997, 1998, 2000.
Matters of evidence i, 714, 1996.
Of guilty—
Admi.ssion of evidence after, 994, 1(K)2, 19sK-
1993.
Withdrawal of, 199-1.
•Statement —
In extenuation of, 1990.
Of accused inconsistent with, 1990, 1992. 1993.
To be considered with, 1991.
Pleading:
Double, 708.
Improper form of, 9, 10.
Previous trials and convictions, 1.52.
Specification, 1.52, 153.
Pledffe:
On honor, violation of, by oificer, 128.
Violation of. to the prejudice, etc., 1.59.
Political oifender:
I'ardcjn of, 187hi.
Porto Klco:
Alienation of property in, 1584.
Army officers holding office in, 1836.
Computing war service in, for retirement, 2223.
Customs fund under military government in,
480.
Right to property under treaty, 1.583.
Posse comltatus, 480,487.
Post:
An arsenal is a, 1333.
Commander as summary court, 2394.
Compelling surrender of, 43 A. W.
Destruction of official papers at, 1844.
Intoxicants, sale, 2287-2290.
Land for burial purposes, purchase, 210»).
Military, title to land, 2303.
Payment of troops, 1924.
Permanent buildings at, ownership. 2098.
Temporary Imildiugs at, ownership, 209s.
Transfer of accused for trial, 76 A. W.
Transfer of witnesses, 76 .\. W.
Tnauthorized absence from, 32 A. W.; 374.
Use of monev received at. 2083.
Post coninianili-r:
As stnnmary court, 2.394.
Authority over civilians regarding prisoners at
I.ost, 2002.
Authority to refer cases for trial, 2003.
Duty of, as to di.scipline of prisoners, 1485.
Duty regarding fugitives from justice, 2001.
Exclusion of persons from reservation, 2004.
Not exceeding authority, 18.56.
Post lllirary:
Books not public property, 2283.
Sale of books, disposition of proceeds, 2283.
Post engineer:
Member city council, 1821.
Post exchange:
Allowance to officer in charge, 2016.
As affecting rights of post trader, 2035.
Defined, 2010.
Establishment of, 2014, note.
Fund-
Forfeiture for benefit of, 1384.
Stoppage of pay to reimburse, 1384, note, 1424,
1425.
In prohibition States, 1215.
Liability of, to taxation, 2012, 2014.
Not a post trader, 2005.
Paymaster's check cashed by, 2017.
Property in articles donated to, 2010.
Provision for light and fuel, 2011.
Recognized but not established by Congrress,
2013.
Responsibility of officer in charge, 2006-2008.
Stoppage of pay to reimburse losses of, 2012.
Post (|uarterniasters:
DisiHisition of )iublic money, 2084.
Post quarterniaster sergeant:
Appointment of, 2018, 2019.
Post trader :
Abolition of office of, 2036.
Amenability to military jurisdiction, 2023.
Appointment of, 2020-2022.
Assessment of, 2025.
Authority of, to trade with Indians, 2030.
Debts of soldiers to, 2024, 2032.
Distinct from post exchange, 2005.
Erection of buildings by, on reservation, 2028,
2089.
Forfeiture of appointment by, 2034.
Lien of, on soldier's pay, '2024, '2032.
Rights of, as affected by canteen, 2035.
Sale of intoxicants, 20-26, '2031, '2288.
Status of, 2020.
Taxing of, by State. •20'20, '2027.
Tenure of. •20'22.
Use of timber and hay on reservation by. 2033.
Postmaster:
Assistant to, 1833.
Officer acting as, 1833.
Power of attorney:
Effect of, 2037.
Irrevocable, significance of, "2037.
Prosecution of <'lainis by, 2037.
To receive money due on contract, 899.
When revocable, 2037.
INDEX.
853
Precedence :
Effect of suspension on right of, 2412.
Presence of accused at trial by courts-martial,
1048.
President:
Action of, on suspension of sentences, 340.
Advances authorized by, 1927.
Appointing power—, 417, 431, 433, 2370, 2373.
When exhausted, 417.
Appointment —
By, with view to retirement, 416.
Of inferior officers by, 410.
Of regimental officers of volunteers, 431.
Of retired officer to office, 2210, 2211.
Approval —
Of death sentence by, 2227.
Of findings of retiring board, 2194, 2190, 2206.
As \\-itness, 2469.
Authority of—
Over militia, 1723, 1724, 1749.
Over the proceedings and sentences of courts-
martial —
As reviewing authority, 2040.
Limitation of, 2040, 2041.
Power of pardon, 2040.
When exhausted, 2040.
To convene general courts-martial, 2038, 2039.
To grant discliarge by purchase, 1170, 1174.
To make regulations, 494, note, 499.
To modify regulations, 496, note, 499.
To re.store to Army, 2042.
To suspend writ of habeas corpus, 1438.
Certain military powers of, 483-185, 487-190, 492,
493.
Confirmation of sentence by, 105 A. W.
Convening authority, 182, 2038, 2039, 2227.
Dismissals, confirmation of, by, 106 A. W. ; 330,
337.
Dismissal of officer by appointment, etc.. of
successor, 1206-1209.
Disposition of reserved lands, 2299.
Disrespectful words concerning, 19 A. VV. ; 13.
Drunkenness a cause for retirement by, 2196.
Examination, etc., of enlisted men for promo-
tion, 422, 423.
Jurisdiction limited by Congress, 500.
Manner of publishing action of, on proceedings,
2140.
May require disbursing officers to furnish bonds,
541.
No power over extended sentences, 2323.
Order of, to cancel muster-in of officer, a dis-
missal, 1210.
Pardoning power can not be added to or de-
tracted from by legislation, 1880.
Power of —
Over military reservation, 1700, 1707, 1710.
To dismiss from Army, 1203.
To dismiss regular and volunteer officer, 1210.
Quasi-conditional pardon by, 1882.
Reappointment of dismissed officer by, effect
of, 1883.
Eemission and mitigation of sentences by, 340,
341.
Presidents — Continued.
Removal of charge of desertion, 1879.
Represented by heads of executive depart-
ments, 1847, 2294.
Restoration of former officer, 2309-2373.
Reviewing authority, 2040, 2227.
Secretary of War representing, 1847.
Sentences —
Confirmation of, by, 105, lOG, 108 A. W.
Executed, beyond power of, 2323.
Staff" of, as Commander in Chief of the Army,
1435.
Suspension of writ of habeas corpus by, 1430.
Use of Army in executing civil process, 487, 490,
493. (See Appendix B.)
War power, 2459.
Presiding ofBcer of court:
Authority of, in court, 2044, note.
Bound by vote of majority, 2046.
Failure to comply with directions of, 2045.
Functions of senior member as, 2043.
Has no command as such, 2045.
Qualifications of, 2043.
Previous convictions:
Evidence of —
Admissibility of, 2048, 2051, 2052, 2054.
Aid in determining measure of punishment,
2054, note.
Consideration of, 2050.
Form of, 2049.
In trial for desertion, 2051.
Introduction of, 2047.
Refusal to consider, 2048, note.
Reopening of court to receive, 2047.
When not admissible, 2051-2052.
Meaning of term, 2052.
Proper evidence of, by summary court, 2053.
l^revious otTenses:
Amenability under reenlistmeut for, 2153.
Previous trials:
And convictions, pleading, 152.
Testimony given on, 1291.
Principal:
Full legal corporate name, 546, 547, 555.
Principal musician:
Not a noncommi.ssioned officer, 411.
Not eligible for appointment to commission,
411.
Printing for headquarters of military depart-
ments, 852.
Prisoners: (See Confinement, Iniprisoiunent, and
Pardon. )
Abridgment of sentence by good conduct, 1482-
1484.
After termination of enlistment, 1400.
Awaiting trial, amenability for offenses, 1030.
Changing place oi confinement of, 1408-1469.
Clothing allowance for, 821, 822.
Commencement of term of confinement, 1462
Confinement —
Credit for, 1463.
In United States Penitentiary, 1470.
Till fine paid, 1461.
Custody of. 67, 70, A. W.
854
INDEX.
Prisoners— Con tiniK'd.
Delivery of, to peiiilentiary, 1471.
Discharge of, at exiiiration of term of service,
n4S, note.
Disposition of articles made by, 1097.
Effect of discharge hy exeeutfve authority,
1477.
Effect of removal to hospital. 147t;.
Escape of, 147.'), 147ii.
Permitted by ollicer, tW \. W.
Good-conduct time, 3.ti;.
Indian, enlistment of, V2S0.
Insjine, sending of, after discharge from Army
to Government Hospital for Insane, 1163.
Insanity of, lol.'i.
Labor by, 14(14. 14(17.
Letters of, 1472.
Military, requisition for, 217(1.
Proceeds of —
Labor of, 1090.
Sale of articles manufactured by, 49.^.
Receiving, by provost-marshal, etc., (i7 A. W.
Refusing to plead, 1999.
Release of, by officer, 09 A, W.
Remission of sentence of, by .summary dis-
charge, 114S.
Report of officer receiving, 68 A. W.
Return of, to civil authority,when under bail, 98.
Sentence of, irregular and inoperative, 14.58.
Standing mute at trial, 89 A. W.
Subsistence of, 1961.
Surri'nder of, to civil authority, 98, 7.56.
Trial of, after discharge, 1033, 1034, 1485, 1486.
Under sentence, surrender of, to civil author-
ity, 98.
T'nexecuted punishment, remission of, 1869-
1871.
Use of irons on, 1465. 1466.
Prisoner of war:
Civil employee, when regarded as, 2055.
Disposition of paroled, 2061.
Enlistment in the enemy's army by, 1095.
Guilty of homicide, disposition of, 2057.
Murder of, 1750.
Order operative upon, 1848, 18.52.
l'arolc<l—
.Vbscncc without leave of, 2064.
Duty may be performed by, 2060.
AVhen considered a deserter, 2064,2065.
Parti.san, treatment as, 2056.
Pay, officers and soldiers, right to, as, 2002, 2063.
Status of—
During civil war, 2059.
Officer or soldier dishonorably discharged
while held as, 2002.
On parole, 2064.
Taken —
By the enemy, 2060-2065.
From the enemy, 205.5-2059.
Violation of parole 2058, 2059.
When justified in entering service of enemy,
2465.
Private :
Absence without cause, 1.H41.
Private — Continued.
Ab.sent from special muster, 1841.
Disability from wounds, 1841.
Fugitive from justice, 1876.
Hospital Corps, 1447,1448,1450,14.52,14.5.3.
Improperly held in irons, 1875.
Pay stopped, 1841.
Restoration to service, 1841.
Private (hvelllnu. entrance Into, to etTecl iirnst,
51:!. (Sec Warrant.)
Private property:
An obstruction to navigation, 1488, note.
Claims of contract surgeons for loss of, 387.
Not subject to forfeiture, 1396.
Purchase of, from appropriation, 443.
Reparation for injury to, .54 A. W., 78-86.
Waste, etc.. of, penalty, .55 A.W.
Privileged eoniniunleatlons. 1303.
Prl/e money:
Right of army to share, OilO.
Proceedings:
Amendment of, 2242, note.
Fatal defect in, 2242.
(3rder of promulgation not necessary, 1860.
Of courts of imiuiry , authentication of, 120 A.W.
Of courts-martial —
Disposition of, 113 A. W.
Party entitled to copy, 114 \. W.. 3.59-365.
Validity of, 1857-1860.
Process: (See Attachment and Civil Huit or pi-He-
el's. )
Right to .serve, after cession of jurisdiction. 075,
079.
I»roeess of attachment of witnesses, 1,5.51, 15.52.
Proclamations by President:
Use of Army in aid of civil power, 487, notes.
Profane oaths, 53 A. W.
Professor of .Military Academy, 2006:
Pay and allowances of, 2066.
Status of, 2006.
Promise on honor:
Violation of. by officer, how charged, 128.
Promotion:
Affectc<l by disability, 2067, 2075.
As affecting right to bomity, 606.
Assignment of officers, 2072.
Change of date of commission. 2071 .
Chief medical purveyor, 2076.
Citizenship, enlisted men, competing for, 2073.
Computation of service of enlisted man, for, 2074.
Dismis.sal, not affected by, 1211.
During recess of Senate, 558, 559.
Effect—
Of army regulations in regard to, 2068.
Of retirement on, 2075.
Of su.spension on, 2070, 2410 2412.
On liond, .557-.5(>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<l on —
Donated land, 2105.
Land occupied jure belli, 2097.
Land illegally occupied; 2100.
Leased lands, 2099.
Burying ground on military reservation, 20s.8.
Public property — Continued.
Charge of jiublic buildings, 2117.
Construction of —
Bridge on, 20M9.
Buildings on, 2088, 20K9.
Credit for deposits, 211H.
Cutting of hay crop on military reservation,
208S.
Disposition of —
By exchange, 2092-2094.
Constitutional provisions, 2087-2090,2113.
Executive Departments, 2087, note.
Personalty. Executive Departments, 2090.
Erection of telegraph lines on military reserva-
tion, 20S9.
Establishment of l\Try within limits of, 2089.
Exchange of—
Unserviceable, 2103.
With States, 2104.
Expenditure of appropriations, 2105,2107.
Gift of land to United States, 2105, 2106.
Illegally dispo.sed of, seizure, 2273,227.5.
Illegal sale, etc., of, 2273-2276.
Interest in trnited States land, transfer, 2089.
Irrigating ditches over military reservations,
2088.
Issue of arms and ammunition, 2096.
Land —
Acquirement by eminent domain, 2109.
Conveyance of interest, 2087-2089.
Purchase for United States, 210.5-2108.
Temporary conveyance by lease, 2087.
United States, disposition, 2087-2090, 2113.
Laying of water pipes on, 2089,
Lease of —
Disposition of proceeds, 2084.
For establishment of Branches of Soldiers'
Home, 2338.
License to occupy, 2093.
Loan of, 2095.
Mining on military reservation, 2088.
Permanent buildings at military posts, 2098
Products of land of United States, 2101.
Protection by injunction from trespass, 2115.
Purchase of land —
Construction, 2105.
Executive Departments, 2107.
For burial purposes, 210t>-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<t-2251, 22.54-
22.57.
Record: (See Amendment and Rcfinion.)
Action of reviewing authority in, 2130t. 2140.
Amendment of, by authority of Congress, 1151.
.Vmendment of, on revisifin, 2254.
Arraignment and pleas .set forth in, 2130.7.
As conclusive evidence, 1751, 1754.
Record — Continued.
Authentication —
Of, 2136it.
Of copies of, 1845, 1846.
Authority of reviewing authority to correct,
22.56.
By whom prepared, 2140.
Challenges to be noted in, 2136c.
Change of, 1117.
Contents, 2136a.
Copies of ,as evidence, 1293-1295, 1309, 1310. 1312,
1313, 1315, 1845, 1846.
Copy of orders to be attached, 2136c.
Correction of —
By reviewing authority, 2230.
Errors in, 2136/, 2143, 2144.
From day to day, 2258.
On revision, 2249-22.52, 2254-2258.
Disposition of, 113 A. W.
Duties of judge-advocate in regard to, 1.537, 1545.
Error in, effect of, 2138, note.
Evidence not to be taken on revision of. 22.53.
Finding set forth in, 2136/.
Impeachment of, 2145.
Indorsement on, 2137.
.Judge-advocate, presence of, shown in record,
2136d.
Loss of, 2139.
Matter excluded by court in, 2136»i.
Meetings without transaction of business noted
in, 2141.
Members, etc., to be accounted for in, 2136d.
Misnomer in, 2144.
Notification to accused of privilege of testify-
ing in own behalf, 2142.
Of board of investigation, as evidence, 1291.
Of dismissal of officer —
Change of, 1206.
Obliteration of, 2367.
Of muster-in, 17.51.
Of War Department, copyright of compilation
from, 970.
official copies of, as evidence, 1293-1295, 1309,
1310, 1312, 1313, 1315.
Omission in, 194-196.
Orders to be read to accused, 2136c.
Parts of, 2145.
Party entitled to copy, 114 A. W.; 359-365.
Presence of accused on revision of, 22,52.
President's action on proceedings in, 2146.
Presumption as to regularity of, 2136/i, 2138.
Printing of, 2137.
Proceedings in proper order in, 2137.
Reading of proceedings of previous ses.sion. 2137.
Recess, when noted in, 213()</.
Responsibility of court regarding, 2140.
Revision of, by legal court, 2251, 2254.
Revision of proceedings as shown in, 213<i/.
Sentence as set forth in, 2136a and ;.
Separate and complete per sc, 2130/).
Swearing of court to be shown in, 2VM\f. 2143.
Testimonv not to be taken on revision of, 2253.
IISTDEX.
859
Record — Continued .
Testimony set forth in, 21o6h .
Transmittal of, to Judge- Advocate-General, 1545.
Record of service:
Alteration and amendment of. 2147.
Efficiency shown in, 1875.
Relief only by Congress, 2147.
Volunteer, alteration of, 2455.
Recruiting officer:
Misrepresentations made by, 1875.
Recruiting service:
Mileage, 445.
Penalty envelope, 1976.
Recruits:
Articles to be read to, 2 A. W.
False statement of age, 1987.
Redress of -wrongs:
Of enlisted men, 30 A. W.
Of officers, 29 A. W.; 36.
Reduction to the ranks:
Appointment of successor to noncommissioned
officer in desertion is, 2151.
Appointment of successor to vacancy caused
by illegal sentence is, 2152.
Noncommissioned officer, may retain warrant
on, 2150.
Officers, commissioned, 2148.
Officers, noncommissioned, 2149, 2150-2152.
Promotion of successor to vacancy caused by
illegal sentence is, 2152.
Reenllstment: (See Honest and faithful service.)
After notification of discharge, etc., 75.
After twenty years' service, 2157.
Age limitation as to, 2164.
Amenability under, for previous offenses, 21.53.
Army service men, 1936.
Date when three months begins, 1279, 2159.
Honest and faithful service, 21.58.
Hospital corps, 144S.
In time of peace, 2156.
Pay, increased, 2154, 2159.
Peace, in time of, 2156.
Service, honest and faithful, 2158.
Stoppage of balance of forfeiture upon, 1391.
Time, computation of, 2154, 2159.
Twenty years' service, 2157.
Voluntary, 2155.
Within three months, 1279, 2159.
Without discharge is evidence of desertion, 73.
Refreshing memory by witness, 1304.
Refusal to testify, to the prejudice, etc., 159.
Regimental commander:
Appointments by, 420.
Courts appointed by, 81 A. W.
Regimental courts: (See Courts-martial, regi-
mental. )
Appeal from, 30 A. W.; 37, 42. note.
Complaint, effect of delay, 38.
Complaint, when to be made, 38.
Findings of, 37.
Judge-advocate sworn, 42, note.
Jurisdiction of, 42.
Limitations of, 42.
Members sworn, 42, note.
Regimental courts— Continued.
Nature of proceedings, 37.
Procedure of, 42, note.
Subjects of complaint, 40-42.
Who may convene, 39.
Regimental officers of volunteers:
Appointment of, 431.
Regimental quartermaster :
Appointment, etc., of, 419.
Functions of, not an office, 419.
Regimental staff officers:
Appointment of, 418.
Regiments,
Assignments to, 2072.
Promotions in, 2068,2072.
Regular Army: {See Army.)
As distinguished from volunteers, 2160.
Continuous existence, 2161.
Officers holding civil office, 1812-1837. (See
Office.)
Standing army, 2161.
Tenure of office in, 2160.
Regulations, Army: (See Army Regulations and
Appendix A. )
Promulgation of, 2294, 2392.
Reimbursement:
For private relief issued prior to passage of
appropriation act, 478.
Of individuals, 1384.
Relative rank: (See Rank.)
Of assistant surgeons, 526.
Release of officer from arrest:
Application for, 178.
Before trial, 71 A. W.; 178, 181.
By himself, 178.
Relief:
Congress the fountain of general, 2163.
Cyclone sufferers in Porto Rico, 4.56.
Extent of, by executive authority, 2162-2163.
General, 2163.
Of sufferers in Alaska, 478.
Private, issued prior to passage of appropriation
act, 478.
Relieving the enemy, 45 A. W.; ,58, 60, 61:
Civilians, 58.
Commercial intercourse with, 60, 61.
Military persons, 58.
Trading with, 60, 61.
Remains of officers and enlisted men : (See Burial
expenses and Funeral e.rpenses. )
Transportation, etc., of, 479.
Remission :
After approval of sentence, 1516.
As distinguished from pardon, 1867.
By Congress, 1880.
By good conduct, 1482-1484.
By reviewing authority, 2229, 2235, 2243.
Continuing punishments, 1871.
Discharge by executive authority, 1477.
Enlistment upon, 1274.
Executed punishment, 1879.
Guardhouse time, 2165.
Not a pardon, 2164.
860
indp:x.
Bi-nilsslon — Continncd.
Of forfeitiirt'.s. 1377, 1386, 1392, 1394, 1404-1407.
Of loss of rank i)r lik's, 162.S, 1(131, l(i32.
Order of, can not bi> 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<lment,2254.
Authority of reviewing officer to correct, 2'256.
Court, reconvening of, '2249-2251, 2'254-2257.
Correction —
By legal court, 2'251, 2254.
From day to day, 2'258.
Dissolution of court, '2'2.57.
Elvidence, 2'253.
Findings, 2'249, 2'256.
Form of corrections, '2254-2256.
Of proceedings as shown in record, 2136/.
Order reassembling court, '2'2.50.
Presence of accused, 2'2.52.
Record of trial, 2'231,'2'249-'2'2.52,2'254-2'258.
Sentence, 2'249.
Statement of members of court, effect of, '2'25.5.
Testimony, '2'253.
Revised Statutes:
Absence from justice, 321.
Accoimtability of officers, 10, 15, A. W.. aS3.
Appropriations, 437, 453, 460, 471, 472, 481.
Army, as to, ■2'247.
.\.rmy regulations, 496, 500.
Arrest of civilians by the military. .521.
Arrest by civil authorities, 517,51s.
Artificial limbs, 5'22, 523.
Bonds, 541, 558, 559, 574, 579, 5S1-.5.S3, :>'.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 <ir lile, I(i2()-lfi32.
Mitigation of, 112 A.W.; 341-3.5S.
2294, 2403.
Not invalidated by keei>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
f<jr, 2330.
(Jommulation of (luurlcrs for ollicers residing
at, 2332.
Contracts for, how entered into, 2330.
Di.sjMJsition of estate of inmates, 2337.
Enlisted men, accompany discharged invalid
soldier to, 2334.
Kstablishnient of branches of, 23;i8.
Kxpenditure of funds, 23:58.
Forfeitures apjiroprialed to use of, 2333,2334.
Funds, Hloppuges, 233-1.
Soldiers' llonic — Continued.
National — Continued.
Funds for, 2331,2333,2334,2337.
Inmates not amenable to Articles of War. 2328.
Lease of I'nited States property to, for estab-
lislinietil of Ijranches, 2338.
.Monetary allowance to treasurer, 2331.
Moneys of cscheateil estates to be paid to,
2337.
Renunciation of privileges of, 2329.
Right to retained pay of deserters. 2333,2:134.
Status of inmates, 2328.
Transportation f\irnished by, 23:16.
fse of supplies, etc., by otticers of, 2331.
National Volunteer, 2;!41-2:544.
t-ourt-martial, 1038.
Inmates of, not subject to Articles of War, 2:U4.
Inspection of accounts, 2342.
Keceii>tsand 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 eiiliste<l men, 'J2'2(i.
Sultoriiatidii of pcrlury:
Alleinpt al. laiw eharwd, IJ-'i.
Sulipii'iia iliii-cs tci-iiiii. I'J'.l'), \'2'M'i.
Subpupiia:
Service of, ir>19, 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 )procee<lings. '2399.
•Inrisdiclion of, 2404.
I..imit)ition as to punishment, 2402.
Need not Kit on Kunduy, '2;i9.i.
Suiiiiuary court — Continued.
Not empowered to issue proee.s.s of attachment,
2400.
Oflicer not sworn, 2399.
I'ersonnel of, who to act as, '2394, '240.').
I'ost commander as, '240.').
Postponement of trial, '239(1.
I'ower to administer oatlis, '2399.
t^resnmption of comi)liancc with law, '2399.
Procedure of, 2398.
Record, form of, '2398.
Remission and mitigation of sentence. .2403.
Statute creating, ed'ect of. '2393.
Substitution for other courts. '2393.
Swearing of witnesses, '2398, '2399.
Summary (ilscliart'o. 1130:
By department or army commander, 1206.
For frau<ln!ent eidistnicnt. 1 114, 1 1'23.
I'ay and allowances, 142:!.
While serving sentence, 1 177.
Summary dismissal:
Ry order, taking cfVect of, 1201.
By Secretary of War, tlicact of the President,
1'20.5. '
Summons:
Witness, obedience to, 24(17.
Sunday:
Covering order dated on. ls.")7.
Enlistment on, 12(11.
Session of eourts-niarlial on, IDKl.
Supernumerary list:
.\l)poiiitment to vacancies of ollicers on, 2407.
Rights of ofticer-: on. '2107,
Transfer of otVicers to. 2407,
Supernumerary ofheer:
Recom missioning, 212s,
Superintendent of Indian .Xtfalrs:
Authority to license trade. 1499.
Superintendent of .Military .Veademy:
Punishment of cadets. (l.')(l.
Superintendent of National Cenietery. 17(lil, 17(17:
.lurisdiction over, Ills,
Sujierior ofBeer:
As used in articles of war. means commissioned
otticer. 1(1.
Di.sobedienee of oriiers of. 21 .\. W.; 2'2-30.
Distinguished from coniman<ling oflicer, '20.
Form of charge of striking, etc.. 19.
Su|>l)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'<l l>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 bcersol<l on military reservations, 2430-2)32.
On cigars si.lcl in canteens, 2132.
On i)cr.sons or property on military reservations.
243.
On private proi)erty in national parks, 2433.
On sugar purchased in I'orto Kico, 243li.
On I'nited States land in St. Paul, Minn., 243(;.
Pay of military persons exempt from, 242.^, 2i2(i.
I't-nsioners not exempt from, 2129.
Personal i)roperty of officer or soldier, 24-').
Post exchanges not liable for local or munici-
pal, 2436.
Right of State to, 243.'i.
Sliiloh Natiimal Military I'.irk exempt from,
2436.
rnited States, for sale of Ijeer at canteen, 2130,
2431, note.
Tciiinstcrs :
Civilian, cook for, 2S.
Kxtra-duty pay, 133,S.
Trial of, 162.
Tclftfraiiis:
.\|pplying for leaves of absence, 477.
Kvidcnce. 12'.)o, 1296.
Ixccruiting volunteers, 176.
Tcli'irraidi operators:
Kxtradnty pay. l:;31.
Trial of. 162.
Torni of ciillstiiiciit, 1269.
Tvrmliiailoii of leave of absence, loO.").
Tenure of offlce In Kegular .Vrnij, 2160.
Territorial:
Military olTenscs not, lti9.
Territory: (See Jiidian Trrrilori/.)
Arms, etc., issued for militia of, 173.S, 1739.
Comiiliance of military person.s with subpa-uas.
24:w.
Defined, 741, note.
Holding office in, 1«21.
.lurisdiction over military persons, 2l3s.
Military person.s subject to criminal laws, 2137.
Militia of, ]7.3X,1739, 1743.
Ol)eration of statutes <jn military reservation,
2439.
rrohibition, sale of intoxicants, 22^s.
Sale of inti>xicaiit.s to Indians, 2i:'.9.
Territory — Con tinned.
Soldiers' Homes —
Establl.shment of, 2339.
Payments to, 2340.
Sovereignty over re.serve<l lands, 2130.
Taxation, 2427-2430.
Testlniony:
(iiven on a previous trial, I'tc., 1291.
High oflicial, how taken, 2169.
Introduction of —
.\fter close of ca.se, 1001, 1002.
After plea of guilty, 991, 1002.
Modification, 2472.
Not taken on revision, 22.')3.
On military trials, latitude in introduction of,
1285.
Tie vote: (See Voir <if Cdnrt.)
EfTect of, 2456.
Statement of, in record, l:'.61.
Tiinlicr:
Cutting of, on military reservations, 1702, 1708,
1715.
Sale of, on military reservations, 1716.
Use of, by jiost trader, 2033.
Time:
Compulation of. for rciMilislment, 21.54, 21.59.
Timekeeper:
Ordnance sergc^ant as, l,sii5.
Time of peace:
I)i.srnis.sals, confirmation of, 99,106 A. W.: 336,
337.
Enli.stment during, 1277.
Extra-duty pay, 1342.
Rcenlistmcnt. 2156.
Time of war:
.Vppointmenl of general courts-martial, 73 A.
W.; 197.
Death sentences, conlirmation of, 105 .\. \V.
Dismissals, eontirmation of. 107 \. \\ .: Xis.
Extra-duty pay, 1339, 1311. 1312.
Title to lands:
Counsel to examine. 9s(i.
Title to real property liuring military occupation,
1.579.
Toll:
Illegal levying on ves,sels, 1790.
Torts of (iovernnient agents:
Responsibility for. 7S4.
Trading with enemy. 60, 61.
Transfer:
From Volunteer to Regular .\rmy, 432.
Of claims, 903.
Of pay accounts, 14.5-147.
Of property purchaseil from appropriation, 4.58.
Rank atTected by, 2127.
TraMs]iortatlon :
Contracts for, 88S.
Exi>enses, reimbursement of, 1967.
F<ir clerks and messengers, 809.
■•'urnishcd by Soldiers' Home to needy ilis-
charged soldii'r, 2336.
(If clerks for duty with troops in lielil, 814.
INDEX.
873
Trail sportati on — roiitiiinccl.
Of Indians, 4r>4.
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)l<iy couiisol. itso.
Victuals, ctr. :
CoinmiiiKliiiK (illici'is mil In li<- iiiti'iestiTl in.
sail' (if. ISA. W.
Violation of plcilvi-:
To llu' jircjiidici', etc., l.'>9.
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 govcrn<irs, 2151.
(Ninscription of, 2449.
Organizations made part of, 2119.
Status of—
Officers an<i enlisted nun upon disliandment
of Army, 1222.
Officers, 2444.
( )tticers incorporate<i into Regular .\rmy, 2446.
Officers mustered into service, 2441.
Tenure of office of, 2444.
To whom term applied, 24.50.
Transfer to Regular Army from, 432.
Trial of—
By regular officers, 208, 209.
()fficerorsoldierafterseparati<in from service,
118.
Vote:
Attempting to corrupt dllicer as to. 120.
Right of members of .\rmy t<i, 2182.
Right of .soldier convicted of desertion, etc., to,
lOtil.
Vote of court:
Effect of, 2450.
Order of voting, 95 A. W.
Recording of, 13()8.
Tie vote-
Equivalent to negative, 24.50.
Statement of. in record, 1304.
Vouchers:
False, iiayments on, 1123, 1124.
For pay, signing of, before due, 4.
Forged, liability for payment on, 1410.
Payment on forged, accinMitability, iWl, 1410.
Wages :
(!laim f<ir lo.'<s of, by arrest and trial, 770.
M'agon masters not enlisted men, 2210.
Waiver of:
Forfeiture for a.ssignment of lease, 1585.
Limitation of prosecution, 320.
Objection t(i —
Second trial, 303.
Unsigned charge, 724.
Variance, 732.
Plea in bar of trial, 1997.
Trial by discharge, 1027.
War:
Attitude of Cherokee Indians in civil war, 1513.
Deserters during war of rebellion, 1877.
In time of—
Appointment of general courts-martial, 73 A.
W.; 197.
Death sentence, confirmation of, 105 A. W.
Dismi.s,sals, conlirmation of, 107 -V. W.; 338.
E.\tra-duty pay, 1339, 13-11, 1342.
INDEX.
875
War — Continued.
Insurrection, etc. —
Crimes during, 58 A. W.; 87-93.
Power of judiciary to determine end, 2457.
Salvage on property captured during, 2293.
Status of Indians once hostile, returned to alle-
giance, 1514.
Termination of, how determined, 2457.
Time of, extra-duty pay, 1339,1341,1342.
With Indian.s, nature of, 1512.
With Spain-
Date of commencement, 24.')9.
Declaration of, 2458.
War Department: (See Sccnidri/ of War.)
Attorneys appearing before, 981.
Authentication of records, 184(i.
Care of property of, 2297.
Copies of records of, as evidence, 1293, 1309,
1310, 1312, 1845.
Custodian of volunteer records, 2445.
Exchange of public property, 2093.
Property, application Army Regulations, 2286.
Public printing, 2086.
Stoppage of pay, 2374.
Supplies for, 849.
Use of patent, 1889.
War power:
Exercise, by State ofhcial, 2459.
Illegal a.s.sumption of, 2459.
Of United States, in whom vested, 2459.
United States, President authorized to execute,
24.59.
War service. (See Retireiiuvt and Serricr.)
Warrant:
Arrest of civilians by the military without, 519.
Of noncommissioned oflicer, retention of, on
reduction to ranks, 21.50.
To enter and search dwelling house for deserter
necessary, 1071, note.
Waste:
License to commit, 1616.
Of ammunition, penalty.for, 16 .\. W.
Watchmen, etc. :
Trial of, 162.
Watchword :
Di-sclosing, 44 A. W.
Waterways:
Natural, 1493.
Water flowage:
Mississippi River improvement, in connection
with, 2263.
Right of way sulijcct to right.s of, 2263.
Water power:
Public property, use of, 2088.
Water rights:
On rights of way, 2264.
Way, risht of. (See Rigid of way.)
Wharves:
Permit for, in navigable waters, 1774.
Widow:
Deceased officer, 1866.
Deceased soldier, 1866. •
Wife:
Assaulting, beating, etc., by officer, 140.
Competency of, as witne.ss, 1305.
Failure to support, 141.
Fraudulent divorce proceedings against, 111.
Of .soldier introduced in post, 1638.
Pay of insane officer for support of, 1517.
Wine:
Sale of, in Indian country, 1.500, 1.506.
Introduction into Indian country, 1500, 150!'i.
Wisconsin:
Water-reserve lands, right of way, 2263
Witness: {See Evidence.)
Accomplice as, 379.
Accused as, before court-martial, 2461.
Allowances of, not a legal stoppage, 2380.
Appropriation for fees, 2485, 2486.
Arrest of, on courts-martial, 510.
As interpreter, 1519.
Attached, not punishable for contemiil, 24S2.
Attachment —
Execution of, 2481, note.
To compel attendance, 2479-2481.
Attendance, 2468.
Attending military courts, fees, 2485, 2486.
Authority of court-martial over, 997.
Authority to administer oath to, 1799, note.
Before summary court, 2398, 2399.
Called by court, 1000, 2486.
Civil authority, subpiena, 104.
Civilian-
Contempt of court, 231, 232.
Compen.sation, 2484, 2485.
Competency of —
Deserter as, 1298.
•ludge-advocate, 2463.
Member of court, 2463.
Reviewing authority, 2464.
Rules governing, 2460.
Compulsory processes, 247S, note.
Court can not arbitrarily di.sbelieve and reject
statement of, 1365.
Coia-ts of inquiry, 118 A. W.
Criminating evidence, refusal to give, 2474.
Deposition, compensation for execution, 2484.
Di.seharge from attendance, 2473.
Evidence, pertinency of, 2473.
Expert, compen.sation for, 2483.
Fees-
Acting assistant or contract surgeons en titled
to, 384.
Appropriations for, 2485, 2486.
Claim for compensation for collecting, 790.
Military persons before civil courts, 2486.
Payment, 2475, 2477.
Fine by court to pay cost of attendance of, 1372.
High official, how testimony taken, 2469.
Incompetency, determination of, 2473.
insane person incompetent as, 2466.
Judge-advocate as, 1540.
List appended to charge, 721.
Member of court as, 1667.
Mileage for retired officer, 2213
cS7()
INDEX,
Witness — Continiiod.
Military, before civil courts, 21.SC.
Modilication of tcstiinoiiy, 2i~2.
Oatli of, 92 A. W.: 271.
Obedience to suiuminis. 'JIti".
Objection to, 'JKiC.
Obstacles in way of attendance, '2lt'i7.
On bonds, o-lo.
Perjury, 1982, 1983.
Preliminary inve.stif^alinn, 2177.
President as, 2409.
Process of attachment, l.")51, l.i.")2.
Prosecution not ol)lij,'ed to furnisli
Piinisliment for contempt. 24H2.
Refusal of, to testify, tntlie prejudice.
Removal (if. to place of trial. 7t; .\. \V.
Retired otRcers, 4W.
Right of accused to have summoned. :
tJecretary of War as, 24('>9.
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, note<l in record, 2\'M/i.
TakiuK nf dejiositioii. (See DrpuKition.)
Wife i>f 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,
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