7?-09i ■CO < s o u % €.U (Jornpll Slatu irljonl IGibrary The original of tliis book is in tlie Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924020002659 Handbook of Military Law BY AUSTIN WAKEMAN SCOTT "PROFESSOR OF LAW, HARVARD UNrVERSITY CAMBRIDGE, MASS. PUBLISHED BY HARVAED UNIVERSITY 1918 /3?^si' COPYMGHT, 1818 BT AUSTIN WAKEMAN SCOTT PREFACE One af the courses which is required of all members of the Students' Army Training Corps in the colleges of the United States is a course on Military Law and Practice. This course includes three subjects: military law, inter- national military customs, and army administration. Military law includes chiefly the procedure of courts- martial. The law relating to courts-martial is very fully expounded in the Manual for Courts-Martial. It is im- possible for the present to obtain a sufficient number of copies of the Ma,nual to supply all the members of the Students' Airmy Training Corps. Moreover the detail with which the subject is treated in the Manual makes the Manual less useful than it would otherwise be as a textbook for a three months' course for undergraduates. On the other hand Colonel Wambaugh's excellent little Guide to the Articles of War, in which the Articles of War are printed without any accompanying oonunent, does not afford the student enough material as a basis for study in a course of this length. The author, there- fore, in arrangin,g the course on military law in Harvard University has found it necessary to supply a brief text- book for the use of the members of his classes. The author has constantly quoted from and referred to the iv PREFACE Manual, a sufficient number of copies of which will be available for purposes of reference. The changes in the law which have occurred in the two years which have elapsed since the issuance of the Manual have been duly indicated. The subject of Military Law as taught in the col- legiate sections of the Students' Army Training Corps is expected to cover also matter relating to the military status of the individual. The author has therefore in- cluded extracts from the Selective Service Law, and amendments thereto. A few cases recently decided by the Federal Courts are also included. Austin Wakeman Scott. Harvard Law School, October 1, 1918. LIST OF ABBREVIATIONS A.R U. S. Army Regulations, 1913, corrected to April 15, 1917. A.W Articles of War, which are found in Section 3 of the Army Appropriations Act, Aug. 29, 1916, 39 Stat. L. 619. Digest Digest of Opinions of the Judge Advocate General of the Army, 1912. Digest Supp Digest of Opinions of thp Judge Advocate General of the Army, 1912^1917. M.C.M Manual for Courts-Martial, revised in the Judge Advocate General's Office and published by authority of the Secretary of War, 1916. Mil. Laws Military Laws of the United States, 5 ed., 1915. Rules L. W Rules of Land Warfare, 1914. Winthrop Winthrop, Military Law and Precedents, 2 ed., 1896. BIBLIOGRAPHY The student who wishes to pursue further the subject of Military Law is referred to the following books in addition to those named above: Davis, Treatise on the Military Law of the United States, 3 ed., revised 1913. Dudley, Military Law and the Procedure of Courts-Martial, 3 ed., revised 1910. Pratt, Military Law (English), 14 ed., 1900. Manual of Military Law (English), 1914, reprinted 1916. CONTENTS CHAPTER I Introduction 3 CHAPTER II Couets-Maktial 13 CHAPTER III Military Offenses 47 CHAPTER IV Miscellaneous Provisions of the Articles of War . . 72 CHAPTER V The Selective Service Law . . 80 CHAPTER VI Judicial Decisions 98 Handbook of Military Law CHAPTER I INTRODUCTION 1. Sources of Military Jurisdiction. The sources of and the authority for the military jurisdiction of the government of the United States are three: reason, history, and the Con- stitution of the United States. The Constitution of the United States expressly provides (Article I, Section 8), that Congress shall have power to declare war; to make rules con- cerning captures on land and water; to raise and support armies; to provide and maintain a navy; to make rules for the government and regulation of the land and naval forces; to provide for calling forth the militia to execute the laws of the Union, suppress insurrections and repel invasions; to pro- vide for organizing, arming, and disciplining the militia and for governing such part of them as may be employed in the serv- ice of the United States, reserving to the states respectively the appointment of the officers and4;he authority of training the militia according to the discipline prescribed by Congress; and finally to make all laws which shall be necessary and proper for carrying into execution the foregoing powers and all other powers vested by this Constitution in the govern- ment of the United States. The- Fifth Amendment to the Constitution provides that no person shall be held to answer for a capital or otherwise infamous crime unless on a present- ment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger. 2. IQnds of Military Jurisdiction. Military jurisdiction is of four kinds which are described in the Manual for Courts- Martial as follows : 4 MILITARY LAW " (a) Military government (the law of hostile occupation) ; that is, military power exercised by a belligerent by virtue of his occupation of an enemy's territory, over such territory and its inhabitants. This belongs to the law of war and there- fore to the law of nations. When a conquered territory is ceded to the conqueror, military government continues until civil government is established, by the new sovereign. " (6) Martial law at home (or, as a domestic fact); by which is meant military power exercised in time of war, in- surrection, or rebellion in parts of the country retaining their allegiance, and over persons and things not ordinarily sub- jected to it. " (c) Martial law applied to the Army; that is, military power extending in time of war, insurrection, or rebellion over persons in the military service, as to obligations arising out of such emergency and not falling within the domain of military law, nor otherwise regulated by law. " The last two divisions (6) and (c) are applications of the doctrine of necessity to a condition of war. They spring from the right of national self-preservation. " (d) Military law; which is the legal system that regulates the government of the military establishment. It is a branch of the municipal law, and in the United States derives its existence from special constitutional grants of power." (M.C.M., par. 2.) This book deals with military law. The subjects of military government and martial law are dealt with by Birkhimer, Military Government and Martial Law. (See also Rules L. W., pars. 14-17.) 3. Scope of Military Law. Military law in the broad sense covers the whole law of' the military establishment, including not only disciplinary but also administrative law. (M.C.M., 13.) In the narrower sense it covers only the disciplinary law of the army, the law relating to and administered by military INTRODUCTION 5 courts. It is this in latter sense that the term is used in this book. In this sense military law defines military offenses, prescribes punishments for the commission of those offenses, and provides the procedure for the ascertaining of guilt. It includes subjects analogous to those which, when dealt with by the civil law, are taught in law schools in courses on Crim- inal Law, Criminal Procedure and Evidence. " In the early periods of English history military law ex- isted only in time of actual war. When war broke out troops were raised as occasion required, and ordinances for their government, or, as they were afterwards called, articles of war, were issued by the Crown, with the advice of the con- stable or of the peers or other experienced persons, or were enacted by the commander in chief in pursuance of an author- ity for that purpose given in his commission from the Crown. (Grose, Military Antiquities, vol. 2, p. 58.) These ordinances or articles, however, remained in force only during the serv- ice of the troops for whose government they were issued, and ceased to operate on the conclusion of peace. Military law in time of peace did not come into existence until the passing of the first mutiny act in 1689." (Mil. Laws, 577.) 4. Sources of Military Law. The sources of military law in the United States are as follows (M.C.M., par. 2) : (1) Acts of Congress, and particularly the Articles of War contained in the Act of Congress of August 29, 1916, most of the provisions of which went into effect on March 1, 1917. An account of the earlier statutes is to be found in the pref- ace to the Manual for Courts-Martial. (See also Winthrop, pp. 4-16; Mil. Laws, chap. 39.) (2) Army Regulations. These are administrative rules laid down by or under the authority of the Secretary of War. (Winthrop, pp. 17-37.) Many matters formerly dealt with in Army Regulations are now dealt with in the Manual for Courts-Martial (see A. R., pars. 915-999) which, issued under 6 MILITARY LAW the authority of the Secretary of War, has in many respects the force of Army Regulations. (M.C.M., par. 198.) (3) General and special orders and decisions promulgated by the War Department and by post and other commanders. (Winthrop, pp. 38^1.) (4) Military custom, including the customs of the service in peace and in war. (Winthrop, pp. 42^6.) 5. Definitions. In construing the Articles of War it is necessary to bear in mind the following provisions of the 1st Article of War : "Abticle 1. Definitions. — The following words when used in these articles shall be construed in the sense indicated in this Article, unless the context shows that a different sense is intended, namely: " (a) The word ' officer ' shall be construed to refer to a com- missioned officer; " (b) The word ' soldier ' shall be construed as including a non- commissioned officer, a private, or any other enlisted man; " (c) The word ' company ' shall be understood as including a troop or battery; and " (d) The word ' battalion ' shall be understood as including a squadron." 6. Persons subject to Military Law. The 2d Article of War provides as follows: " Art. 2. Persons subject to military law. — The following persons are subject to these articles and shall be understood as in- cluded in the term ' any person subject to miUtary law,' or ' persons subject to military law,' whenever used in these articles: Provided, That nothing contained in this Act, except as specifically provided in Article two, subparagraph (c), shall be construed to apply to any person under the United States naval jurisdiction, unless otherwise specifically provided by law. " (a) All officers and soldiers belonging to the Regular Army of the United States; aU volunteers, from the dates of their muster or acceptance into the military service of the United States; and all INTRODUCTION 7 other persons lawfully called, drafted or ordered into, or to duty or for training in, the said service, from the dates they are required by the terms of the call, draft or order to obey the same; " (b) Cadets; " (c) Officers and soldiers of the Marine Corps when detached for service with the armies of the United States by order of the President: Provided, That an officer or soldier of the Marine Corps when so detached may be tried by mUitary court-martial for an offense committed against the laws for the government of the naval service prior to his detachment, and for an offense committed against these articles he may be tried by a naval court-martial after such detachment ceases; " (d) All retainers to the camp and all persons accompanjring or serving with the armies of the United States without the territorial jurisdiction of the United States, and in time of war all such retainers and persons accompanying or serving with the armies of the United States in the field, both within and without the territorial jurisdic- tion of the United States, though not otherwise subject to these articles; " (e) AU persons under sentence adjudged by courts-martial; " (f) All persons admitted into the Regular Army Soldiers' Home at Washington, District of Columbia." It is elsewhere provided by statute (Act of August 29, 1916, 39 Stat. 573, 625, 626) that the following persons are also subject to military law: (g) Officers and enlisted men of the Medical Department of the Navy, serving with a body of marines detached for serv- ice with the Army in accordance with the provisions of section sixteen hundred and twenty-one of the Revised Statutes, shall, while so serving, be subject to the rules and articles of war prescribed for the government of the Army in the same manner as the officers and men of the Marine Corps while so serving. (h) Army field clerks. (t) Field clerks, Quartermaster Corps. 8 MILITARY LAW 7. Military Tribunals. There are four kinds of military tribunals. (1) Military Commissions arid Provost Courts. These tri- bunals are employed for the trial of offenders against the laws of war and under mairtial law. (See Birkhimer, chap. 15.) (2) Courts of Inquiry. The Articles of War contain the fol- lowing provisions as to courts of inquiry: "Art. 97. When and by whom ordered. — 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 a court of inquiry shall not be ordered by any commanding officer except upon the request of the officer or soldier whose conduct is to be inquired into. " Art. 98. Composition. — A court of inquiry shall consist of three or more officers. For each court of inquiry the authority appointing the court shall appoint a recorder. " Akt. 99. Challenges. — Members of a court of inquiry may be challenged by the party whose conduct is to be inquired into, but only for cause stated to the court. The court shall determine the relevancy and validity of any challenge, and shall not receive a challenge to more than one member at a time. The'party whose conduct is being inquired into shall have the right to be represented before the court by counsel of his own selection, if such counsel be reasonably available. " Art. 100. Oath or members and recorder. — The re- corder of a court of inquiry shall administer to the members the following oath: ' You, A. B., do swear (or affirm) that you will well and truly examine and inquire, according to the evidence, into the matter now before you, without partiahty, favor, affection, prej- udice, 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 (or affirm) 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.' " In case of affirmation the closing sentence of adjuration wiU be omitted. INTRODUCTION 9 "Aet. 101. Powers; pboceduhe. — A court of inquiry and the recorder thereof shall have the same power to summon and examine witnesses as is given to courts-martial and the judge advo- cate thereof. Such witnesses shall take the same oath or affirmation that is taken by witnesses before courts-martial. A reporter or an interpreter for a court of inquiry shall, before entering upon his duties, take the oath or affirmation required of a reporter or an inter- preter for a court-martial. The party whose conduct is being in- quired into or his counsel, if any, shall be permitted to examine and cross-examine witnesses so as fuUy to investigate the circumstances in question. " Art. 102. Opinion on merits of case. — A court of inquiry shall not give an opinion on the merits of the case inquired into unless specially ordered to do so. " Art. 103. Record or proceedings — How authenticated. — Each court of inquiry shall keep a record of its proceedings, which shall be authenticated by the signature of the president and the recorder thereof, and be forwarded to the convening authority. In case the record can not be authenticated by the recorder, by reason of his death, disability, or absence, it shall be signed by the president and by one other member of the court." A court of inquiry is not in truth a court because, although it may make an inquiry and report, it has no power to try anyone. (M.C.M., pars. 447-475.) (3) Boards of Investigation. The 105th Article of War pro- vides as follows: " Art. 105. Injuries to person or pbopebty — Redress of. — Whenever complaint is made to any commanding officer that damage has been done to the property of any person or that his property has been wrongfully taken by persons subject to military law, such complaint shall be investigated by a board consisting of any number of officers from one to three, which board shall be con- vened by the commanding officer and shall have, for the purpose of such investigation, power to summon witnesses and examine them upon oath or affirmation, to receive depositions or other documen- tary evidence, and to assess the damages sustained against" the responsible parties. The assessment of damages made by such 10 MILITARY LAW board shall be subject to the approval of the commanding officer, and in the amount approved by him shall be stopped against the pay of the offenders. And the order of such commanding officer directing stoppages herein authorized shall be conclusive on any disbursing officer for the payment by him to the injured parties of the stoppages so ordered. " Where the offenders can not be ascertained, but the organiza- tion or detachment to which they belong is known, stoppages to the amount of damages inflicted may be made and assessed in such pro- portion as may be deemed just upon the individual members thereof who are shown to have been present with such organization or detachment at the time the damages complained of were inflicted as determined by the approved findings of the board." It will be observed that there is no power to compel the of- fender to pay damages except so far as damages can be stopped against his pay. (M. CM., .par. 481.) (4) Courts-Martial. These courts have power to try and to punish offenders against military law. (For an account of their origin and history, see Winthrop, pp. 47-52.) Their jurisdiction is entirely criminal; they cannot adjudge dam- ages for private wrongs nor enforce the payment of private debts. When an offense is both an offense against the laws of war and against military law, courts-martial have con- current jurisdiction with military commissions and provost courts. (A.W., 15, infra p.' 17.) 8. Disciplinary Powers of Commanding Officers. Minor offenses are often punished by a commanding officer without the intervention of a court-martial. The 104th Article of War provides as follows : " Aht. 104. Disciplinary powers op commanding officers. — Under such regulations as the President may prescribe, and which he may from time to time revoke, alter, or add to; the com- manding officer of any detachment, company, or higher command may, for minor offenses not denied by the accused, impose disci- plinary punishments upon persons of his command without the inter- INTRODUCTION 11 vention of a court-martial, unless the accused demands trial by court-martial. " The disciplinary punishments authorized by this article may include admonition, reprimand, withholding of privileges, extra fatigue, and restriction to certain specified limits, but shall not include forfeiture of pay or confinement under guard. A person punished under authority of this article, who deems his punishment unjust or disproportionate to the oifense may, through the proper channel, appeal to the next superior authority, but may in the meantime be required to undergo the punishment adjudged. The commanding officer who imposes the punishment, his successor in command, and superior authority shall have power to mitigate or remit any unexecuted portion of the punishment. The imposition and enforcement of disciplinary punishment under authority of this article for any act or omission shall not be a bar to trial by court- martial for a crime or offense grpwing out of the same act or omis- sion; but the fact that a disciplinary punishment has been enforced may be shown by the accused upon trial, and when so shown shall be considered in determining the measure of punishment to be adjudged in the event of a finding of guilty." The following observations on the power of a commanding officer are to be found in the Manual for Courts-Martial: " While courts-martial are the judicial machinery pro- vided by law for the trial of military offenses, the law also recognizes that the legal power of command, when wisely and justly exercised to that end, is a powerful agency for the maintenance of discipline. Courts-martial and the disciplin- ary powers of commanding officers have their respective fields in which they most effectually function. The tendency, however, is to resort unnecessarily to courts-martial. To invoke court-martial jurisdiction rather than to exercise this power of command in matters to which it is peculiarly ap- pUcable and effective, is to choose the wrong insttument, disturb unnecessarily military functions, injure rather than- maintain discipline, and fail to exercise an authority the use of which develops and increases the capacity for com- mand. ... 12 MILITARY LAW " While commanding officers should always use their utmost influence to prevent breaches of discipline and compose con- ditions likely to give rise to such breaches, they should also impose and enforce the disciplinary punishment authorized by the above article. This authority, involving the power, judgment, and discretion of the commander, can not be dele- gated to or in any manner participated in by others, but must be exercised by the commander upon his own judgment and in strict compliance with the article and the regulations pre- scribed by the President pursuant thereto. Accordingly, the commanding officer of a detachment, company, or higher com- mand will usually dispose of, and may award disciplinary punishment for, any offense committed by any enlisted man of his command which would ordinarily be disposed by of summary court-martial, when the accused does not deny that he committed the offense and does not demand trial by court- martial before the commanding officer has made and aii- nounced his decision in the case." (M.C.M., par. 333.) CHAPTER II COURTS-MARTIAL 9. Kinds of Courts-Martial. The 3d Article of War pro- vides as follows: " Art. 3. Coubts-mahtial classified. — Courts-martial shall be of three kinds, namely : " First, general courts-martial; " Second, special courts-martial; and " Third, summary courts-martial^" These courts differ with respect to the authority to appoint them, the number of members, the persons subject to their jurisdiction, the offenses subject to their jurisdiction and the punishments which may be inflicted. 10. Composition of Courts-Martial. The Articles of War provides as follows : " Akt. 4. Who may serve on courts-martial. — All officers in the military service of the United States, and officers of the Marine Corps when detached for service with the Army by order of the President, shall be competent to serve on courts-martial for the trial of any persons who may lawfully be brought before such courts for trial. " Art. 5. General courts-martial. — General courts-rnartial 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. " Art. 6. Special courts-martial. — Special courts-martial may consist of any number of officers from three to five, inclusive. "Art. 7. Summary courts-martial. — A summary court- martial.shall consist of one officer." 13 14 MILITARY LAW It will be noticed that only officers may sit as members of any of the three classes of courts-martial, and the word " officers " refers to commissioned officers. (A.W., 1.) No officer is eligible to sit as a member of a general or special court-martial when he is the accuser or witness for the prose- cution. (A.W., 8, 9.) In practice chaplains, veterinarians, dental surgeons and second lieutenants in the Quartermaster Corps are not detailed as members of a court-martial, al- though they are not by law ineligible. (M.C.M., par. 6.) 11. Appointment of Courts-Martial. The three classes of courts-martial differ with respect to the power of appointing them. The Articles of War provide as follows: " Art. 8.- General courts-martial. — The President of the United States, the commanding officer of a territorial division or department, the Superintendent of the MilitOTy Academy, the commanding officer of an army, an army corps, a division, or a separate brigade, and when empowered by the President, the com- manding officer of any district or of any force or body of troops may appoint general courts-martial; but when any such commander is the accuser or the prosecutor of the person or persons to be tried, the court shall be appointed by superior competent authority, and no officer shall be eligible to sit as a member of such court when he is the accuser or a witness for the prosecution. " Art. 9. Special courts-martial. — The commanding officer of a district, garrison, fort, camp, or other place where troops are on duty, and the commanding officer of a brigade, regiment, detached battalion, or other detached command may appoint special courts- martial; but when any such commanding officer is the accuser or the prosecutor of the person or persons to be tried, the court shall be appointed by superior authority, and may in any case be appointed by superior authority when by the latter deemed desirable; and no officer shall be eUgible to sit as a member of such court when he is the accuser or a witness for the prosecution. "Art. 10. Summary C0URTS-M.4.RTIAL. — The commanding officer of a garrison, fort, camp, or other place where troops are on duty, and the commanding officer of a regiment, detached battaUon, COURTS-MARTIAL 15 detached company, or other detachment may appoint summary courts-martial; but such summary courts-martial may in any case be appointed by superior authority when by the latter deemed desirable: Provided, That when but one officer is present with a command he shall be the summary court-martial of that command and shall hear and determine cases brought before him." A court-martial may be appointed to try a particular of- fender or it may be appointed to try all such cases as are referred to it. The court is appointed by a special order, reading in substance as follows: (Place. Date.) Special Orders No 1. A general court-martial is hereby appointed, to be known as general court-martial number ..., to meet at on or as soon thereafter as practicable, for the trial of such cases as may be brought before it. 2. The following officers are hereby detailed as members of the said court: is hereby detailed as judge advocate of the said court. By order of, etc. 12. Judge Advocates. The Articles of War provide as follows : " Art. 11. Appointment of judge advocates. — For each general or special court-martial the authority appointing the court shall appoint a judge advocate, and for each general court-martial one or more assistant judge advocates when necessary. " Art. 17. Jtjdge advocate to prosecute. — The judge advocate of a general or special court-martial shall prosecute in the name of the United States, and shall, under the direction of the court, prepare the record of its proceedings. The accused shall have the right to be represented before the court by counsel of his own selection for his defense, if such counsel be reasonably available, but should he, for any reason, be unrepresented by counsel, the judge advocate shall from time to time throughout the proceedings advise the accused of his legal rights. 16 MILITARY LAW It will be noticed that there is no officer of a civil court whose functions correspond to those of a trial judge advocate. He is not only the prosecuting officer, but he may also assist the accused; he is the legal adviser of the court; and it is his duty to prepare the record of the proceedings. (M.C.M., 94-105; Winthrop, 262-303.) It will be noticed that no trial judge advocate is appointed for a summary court-martial. 13. Jurisdiction of Cotirts-Martial. The Articles of War contain the following provisions on the matter of the jurisdic- tion of courts-martial: " Akt. 12. General cotjbts-martial. — General courts-mar- tial shall have power to try any person subject to military law for any crime or offense made punishable by these articles and any other person who by the law of war is subject to trial by military tribunals: Provided, That no officer shall be brought to trial before a general court-martial appointed by the Superintendent of the Military Academy. " Akt. 13. Special cotjrts-maetl%.l. — Special courts-martial shall have power to try any person subject to military law, except an officer, for any crime "or offense not capital made punishable by these articles: Provided, That the President may, by regulations, which he may modify from time to time, except from the jurisdic- tion of special courts-martial any class or classes of persons subject to military law. " Special courts-martial shall not have power to adjudge dis- honourable discharge, nor confinement in excess of six months, nor to adjudge forfeiture of more than six months' pay^ " Aet. 14. Summary couets-martial. — Summary courts- martial shall have power to try any person subject to military law, except an officer, a cadet, or a soldier holding the privileges of a certificate of eligibility to promotion, for any crime or offense not capital made punishable by these articles: Provided, That non- commissioned officers shall not, if they object thereto, be brought to trial before a summary court-martial without the authority of the officer competent to bring them to trial before a general court- martial: Provided further, That the President may, by regulations, COURTS-MARTIAL 17 which he may modify from time to time, except from the jurisdiction of summary courts-martial any class or classes of persons subject to military law. " Summary courts-martial shall not have power to adjudge con- finement in excess of three months,- nor to adjudge the forfeiture of more than three months' pay: Provided, That when the summary court officer is also the commanding officer no sentence of such summary court-martial adjudging confinement at hard labor or forfeiture of pay, or both, for a period in excess of one month shall be carried into execution until the same shall have been approved by superior authority. " Akt. 15. Not exclusive. — The provisions of these articles conferring jurisdiction upon courts-martial shall not be construed as depriving military commissions, provost courts, or other military tribunals of concurrent jurisdiction in respect of offenders or offenses that by the law of war may be lawfully triable by such military commissions, provost courts, or other military tribunals. " Aet. 16. Oepiceks; how triable. — Officers shall be triable . only by general courts-martial, and in no case shall an officer, when it can be avoided, be tried by officers inferior to him in rank.'' The following important observations as to jurisdiction are found ,in the Manual for Courts-Martial : " The jurisdiction of a court-martial is its power to try and determine cases legally referred to it and, in case of a finding of guilty, to award a punishment for the offense within its prescribed limits. Being courts of special and limited jurisdiction their organization, powers, and mode of procedure must conform to all the statutory provisions relating to their jurisdiction. " While courts-martial have no part of the jurisdiction set apart under the article of the Constitution which relates to the judicial power of the United States they have an equally certain constitutional source. They are estabhshed under the constitutional power of Congress to make rules for the gov- ernment and regulation of the land forces of the United States, and are recognized in the provisions of the fifth amendment 18 MILITARY LAW expressly exempting ' cases arising in the land and naval forces ' from the requirement as to presentment and in- dictment by grand jury. They are tribunals appointed by military orders issued under authority of law. The power to appoint them, as well as the power to act upon their proceed- ings, is vested by law in certain commanding officers. Their jurisdiction is entirely criminal. They have no power to ad- judge damage for personal injuries or private wrongs, nor to collect private debts. Their judgments upon subjects within their limited jurisdiction, when duly approved or confirmed, are as legal and valid as those of any other tribunals. No appeal can be taken from them, nor can they be set aside, or reviewed by the courts of the United States, nor of any State, but United States courts may, on writ of habeas corpus, inquire into the legality of detention of A person held by military authority, at any time, either before or during trial or while serving sentence, and will order him discharged if it appears to the satisfaction of the court that any of the statutory re- quirements conferring jurisdiction have not been fulfilled. Their sentences have in themselves no legal effect until they have received the approval or confirmation of the proper com- manding officer. With such approval or confirmation, how- ever, their sentences become operative and are as effective as the sentences of civil courts having criminal jurisdiction, and are entitled to the same legal consideration. " The jurisdiction of every court-martial, and hence the validity of each of its judgments, is conditioned upon these indispensable requisites : " (a) That it was convened by an officer empowered by statute to appoint it. " (b) That the persons who sat upon the court were legally competent to do so. " (c) That the court thus constituted was invested by the acts of Congress with power to try the person and the offense charged. COURTS-MARTIAL 19 " (d) That its sentence was in accordance with law. " ' Persons, then, belonging to the Army and the Navy are not subject to illegal or irresponsible courts-martial, when the law for convening them and directing their proceedings of organization and for trial have been disregarded. In such cases, everything which may be done is void — not voidable, but void; and civil courts have never failed, upon a proper suit, to give a party redress, who has been injured by a void process or void judgment. . . . When we speak of proceed- ings in a cause, or for the organization of the court and for trials, we do not mean mere irregularity in practice on the trial, or any mistaken rulings in respect to evidence or law, but a disregard of the essentials required by the statute under which the court has been convened to try and to punish an offender for an imputed violation of the law.' (Dynes v. Hoover, 61 U. S., 81;, see also Deming v. McClaughry, 113 Fed. Rep., 650; McClaughry v. Deming, 186 U. S., 63; Mul- lan V. United States, 140 U. S., 240; Ex parte Tucker, 212 Fed. Rep., 569; and A.W., 37.) " Courts-martial have exclusive jurisdiction to try persons subject to military law for all purely military crimes and of- fenses; they have concurrent jurisdiction with the proper civil courts to try such persons for civil crimes and offenses denounced and punished under A.W., 92, 93, 94, and 96. (For limitation as to the crimes of murder and rape, see A.W. 92.) In accordance with a principle of comity as between the civil and military tribunals in cases of concurrent jurisdiction the jurisdiction which first attaches in a particular case is entitled to proceed to its termination. This is, however, not an in- flexible rule and need not govern the action of the military authorities in the case of an accused person demanded by the civil authorities to answer for an offense which is primarily one against the civil community. " When any person subject to military laW, except (a) one who is held by the military authorities to answer, or (jb) who 20 MILITARY LAW is awaiting trial, or (c) result of trial, or (d) who is undergoing sentence for a crime or offense punishable by the Articles of War, is accused of a crime or offense committed within the geographical limits of the States of the Union and the Dis- trict of Columbia, and punishable by the laws of the land, the commanding officer is required, except in time of war, upon application duly made, to use his utmost endeavor to deliver over such accused person to the civil authorities, or to aid the officers of justice in apprehending and securing him, in order that he may be brought to trial. Any commanding officer who upon such application refuses or willfully neglects, except in time of war, to deliver over such accused person to the civil authorities or to aid the officers of justice in apprehending and securing him shall be dismissed from the service or suffer such other punishment as a court-martial may direct. " When, under the provisions of this article, delivery is made to the civil authorities of an offender undergoing sen- tence of a court-martial, such delivery, if followed by convic- tion, shall be held to interrupt the execution of the sentence of the court-martial, and the offender shall be returned to military custody, after having answered to the civil authorities for his offense, for the completion of the said court-martial sentence. (A.W., 74.) When offenses against the peace arid good order of civil commimities are committed by persons subject to military law, the proper military authorities will be prompt in the preferring of charges and the arraignment of offenders, having due regard for arrangements existing for the purpose of securing between the authorities of the two juris- dictions, civil and military, mutual aid and cooperation in the administration of justice. In such cases, if, after charges are - preferred, the officer competent to order trial by the proper court-martial deems it inadvisable to bring the case to trial, he will hold the offender and forward the charges, with his views thereon, to The Adjutant General of the Army. [See A.W., 74, infra p. 56.] COURTS-MARTIAL • 21 " A court-martial having once duly assumed jurisdiction of a case, can not, by any wrongful act of the accused, be ousted of its authority or discharged from its duty to proceed fully to try and determine according to law and its oath. Thus the fact that, after arraignment and during the trial, the accused has escaped from military custody furnishes no ground for not proceeding to a finding, and, in the event of convic- tion, to a sentence, in the case; and the court may and should find and sentence as in any other case. During such absence it is proper for his counsel to continue to represent him in all respects as though present. " Military jurisdiction is not territorial. It extends as to persons legally subject to it to offenses cominitted by them in any place whatsoever, whether within or beyond the ter- ritorial jurisdiction of the United States." (M.C.M., pars. 32- 37.) 14. Procedure. When a person subject to military law has committed or is alleged to have committed an offense for which he is punishable by court-martial, the procedure will be substantially as follows, although some of the steps may be omitted. 14a. Procedure prior to Trial. The procedure prior to trial includes the following steps: (1) Arrest and confinement. The Articles of War provide as follows : " Art. 69. Akrest or confinement of accused persons. — An officer charged with criine or with a serious offense under these articles shall be placed in arrest by the commanding officer, and in exceptional cases an officer so charged may be placed in confinement by the same authority. A soldier charged with crime or with a serious offense under these articles shall be placed in confinement, and when charged with a minor offense he may be placed in arrest. Any other person subject to military law charged with crime or with a serious offense under these articles shall be placed in confinement or iu arrest, as circumstances may require; and when charged with 22 MILITARY LAW a minor offense such person may be placed in arrest. Any person placed in arrest under the provisions of this article shall thereby be restricted to his barracks, quarters, or tent, unless such limits shall be enlarged by proper authority. Any officer who breaks his arrest or who escapes from confinement before he is set at liberty by proper authority shall be dismissed from the service or. suffer such other punishment as a court-martial may direct; and any other person subject to military law who escapes from confinement or who breaks his arrest before he is set at liberty by proper authority shall be punished as a court-martial may direct. " Art. 70. Investigation of and action upon charges. — No person put in arrest shall be continued in confinement more than eight days, or until such time as a court-martial can be assembled. When any person 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' brought to trial within ten days thereafter, unless the necessities of the service prevent such trial; and then he shall be brought to trial within thirty days after the expiration of said ten days. If a copy of the charges be not served, or the arrested person be not brought to trial, as herein required, the arrest shall cease. But persons released from arrest, under the provisions of this article, may be tried, whenever the exigencies of the service shall permit, within twelve months after such release from arrest: Provided, That in time of peace no person shall, against his objection, be brought to trial before a general court-martial within a period of five days subsequent to the service of charges upon him." It will be noticed that only commanding officers have power to place officers in arrest, except as provided in A.W., 68 (infra) . By a commanding officer is meant the commander of the regiment, separate company, detachment, post, depart- ment, etc., in which the officer is serving. (Digest, p. 481; M.C.M., par. 47. And see M.C.M., pars. 46-60.) (2) Drawing charge and specification. When a person subject to military law is accused of a violation of one of the Articles of War, a formal statement of his offense is prepared in the following form (see M.C.M., App. 3). COURTS-MARTIAL 23 Charge sheet. No. in summary court record (Place.) (Date.) (Surname.) (Christian name.) (Rank and organization.) Date current enlistment, Rate of pay, Previous service, T. (Give dates, with character given on each discharge.) y. , ,f Arrest: No. of previous convictions, I Confinement: Witnesses : Charge: Violation of the 54th Article of War. Specification: In that Pvt. Richard Roe, Company A, Second Infantry, alias Pvt. John Doe, Company F, Twenty-ninth Infantry, did, without a discharge from said Company A, Second Infantry, procure himself to be enlisted in the mihtary service of the United States at Fort Jay, N. Y., on the 24th day of July, 1917, under the name of John Doe, by wiUfuUy concealing from Capt. William White, Medical Corps, a recruiting officer, the fact of his prior enlistment in said Copipany A, Second Infantry, and has at Fort Jay, N. Y., since said date, received allowances under said enlist- ment. John Styles, Captain, Infantry. In the Manual for Courts-Martial the following observa- tions are made: " A charge corresponds to a civil indictment. It consists of two parts — the technical ' charge,' which should desig- nate the alleged crime or offense as a violation of a particular article of war or other statute, and the ' specification,' which sets forth the facts constituting the same. The requisite of a charge is that it shall be laid under the proper article of war or other statute; of a specification, that it shall set forth in simple and concise language facts sufficient to constitute the particular offense and in such manner as to enable a person of common understanding to know what is intended. The 24 MILITARY LAW general term ' charges,' in the sense that the word ' charge ' is used in the first sentence of this paragraph, includes any number of technical charges and their specifications. " Military charges, though commonly originating with military persons,, may be initiated by civilians. Indeed, it is but performing a public duty for a civilian who becomes cog- nizant of a serious offense committed by an officer or a soldier to bring it to tjie attention of the proper commander. A charge may likewise originate with an enlisted man. But by the usage of the service all military charges should be formally preferred by — that is, authenticated by the signa- ture of — a commissioned 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. (Digest, p. 482, II, B.) " Any officer may prefer charges. An officer is not dis- qualified from preferring charges by the fact that he is him- self under charges or in arrest. (Digest, p. 483, II, C.) " The officer preferring charges will sign his name follow- ing the last specification, adding his rank and organization in the Army." (M.C.M., pars. 61-64.) (3) Submission and investigation of charges. The follow- ing procedure is prescribed for the submission and investiga- tion of charges: " All charges for trial by court-martial will be prepared in triplicate, using the prescribed charge sheet as a first sheet and using such additional sheets of ordinary paper as are required. They will be accompanied: " (a) Except when trial is to be had by summary court, by a brief statement of the substance of all material testimony expected from each material witness, both those for the prose- cution and those for the defense, together with all available COURTS-MARTIAL 25 and necessary information as to any other actual or probable testimony or evidence in the case; and " (b) In the case of a soldier, by properly authenticated evidence of convictions, if any, of an offense or offenses com- mitted by him during his current enlistment and within one year next preceding the date of the alleged commission by him of any offense set forth in the' charges. " They will be forwarded by the officer preferring them to the officer immediately exercising summary court-martial jurisdiction over the command to which the accused belongs, and wjU by him and by each superior commander into whose hands they may come either be referred to a court-martial within his jurisdiction for trial, forwarded to the next superior authority exercising court-martial jurisdiction over the com- mand to which the accused belongs or pertains, or otherwise disposed of as circumstances may appear to require. " If the officer immediately exercising summary court- martial jurisdiction over the command to which the accused belongs or pertains decides to forward the charges to superior authority, he will, before so doing carefully either investigate them himself or will cause to officer other than the officer pre- ferring the charges carefully to investigate them and to report to him, orally or otherwise, the result of such investigation. The officer investigating the charges will afford to the accused an opportunity to make any statement, offer any evidence, or present any matter in extenuation that he may desire to have considered in connection with the accusations against him. If the accused desires to submit nothing, the indorse- ment will so state. In his indorsement forwarding the charges to superior authority he will include : " (a) The name of the officer who investigated the charges; " (6) The opinion of both such officer and himself as to whether the several charges can be sustained; " (c) The substance of such material statement, if any, as the accused may have voluntarily made in connection with the case during the investigation thereof; 26 MILITARY LAW "(d) A summary of the extenuating circumstances, if any, connected with the case; and " (e) His reconmiendation of action to be taken. " When an officer who exercises' court-martial jurisdiction receives charges against an enhsted man it is his duty to con- sider whether they shall be tried by general, special, or sum- mary court-martial. He should not withhold charges from trial by special or summary court solely for the reason that the maximum limit of punishment is beyond the jurisdiction of such courts to impose. On the other hand, he should not refer to a special or summary court-martial offenses which by reason of their inherent gravity or of the circumstances sur- rounding their commission merit greater formality of trial or more condign punishment than is found in the procedure or jurisdiction of such courts. No fixed rule can be laid down and the matter must be decided by the careful consideration of commanders subject to the limitations that while, in a proper case, desertion may be tried before a special court, felonies and crimes involving moral turpitude should not be, and capital crimes can not be tried by special or summary court-martial." (M.d.M., pars. 75-78 and App. 3.) (4) Appointment of or reference to court-^martial. The proper authority may either appoint a court-martial to try the ac- cused, or refer the case to a court-martial which has been already appointed. (Winthrop, pp. 223, 224.) (5) Service of charges upon accused. The charges are served upon the accused, usually by the judge advocate or some one selected by him. (M.C.M., par. 80; Winthrop, pp. 226-228.) 14b. Procedure at the TriaL The court having as- sembled, at the time appointed in the order or the time to which it had adjourned, the officer senior in rank acts as president of the court and sits at the head of the table, the other members of the court being arranged alternately on his COURTS-MARTIAL 27 right and left in order of their seniority. The proceedings are then as follows: (1) The president of the court or the judge advocate calls the roll of the members of the court or, more commonly, the judge advocate simply notes the presence or absence of the members of the court. (2) When the court is ready, the judge advocate announces his readiness to proceed with the trial of the accused and states whether or not the accused desires to introduce coun- sel. The accused has the right to be represented by counsel of his own selection if such counsel be reasonably available. (A.W., 17.) If he requests the appointment of an officer stationed at the station where the court sits and reasonably available, such officer will be appointed by the commanding officer. Civilian counsel will not be furnished at the expense of the government. (M.C.M., par. 108.) (3) The reporter, if any, and interpreter, if any, are then sworn. (A.W., 19, infra p. 29.) (4) In the case of a general court-martial the judge advo- cate asks the accused if he desires a copy of the record of his trial and if he does, the judge advocate directs the reporter to prepare a copy. (5) The order appointing the court and modifying orders, if any, are then read by the judge advocate. (6) The accused is then asked if he objects to being tried by any member of the court. The accused may then if he wishes challenge any member of the court. The Articles of War contain the following provisions on this point: " Art. 18. Challenges. — Members of a general or special court-martial niay be challenged by the accused, 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." The judge advocate, as well as the accused, may challenge members of the court. (M.C.M., par. 123; Digest, p. 502.) 28 MILITARY LAW Challenges are of two kinds, principal challenges, where the facts raise so strong a presumption that the member chal- lenged would not be a person who would pass a fair judgment on the guilt of the accused, that the mere proof of the facts is sufficient to disqualify the member; and challenges for favor, where actual prejudice, hostility, bias, or intimate per- sonal friendship are alleged and proved. The distinction is thus brought out in the Manual for Court-Martial: " Principal challenges. In the following cases a member will be excused when challenged upon proof of the fact as alleged : " (1) That he sat as a member of a court of inquiry which investigated the charges. " (2) That he has personally investigated the charges and expressed an opinion thereon, or that he has formed a positive and definite opinion as to the guilt or innocence of the accused. " (3) That he is the accuser. " (4) That he will be a witness for the prosecution. " (5) That (upon a rehearing of the case) he sat as a mem- ber on the former trial. " (6) That, in the case of the trial of an officer, the mem- ber will be promoted by the dismipsal of the accused. " (7) That he is related by blood or marriage to the accused. " (8) That he has a declared enmity against the accused. " Challenges for favor. Where prejudice, hostility, bias, or inthnate personal friendship are alleged it is for the court, after hearing the grounds for challenging stated and the reply, if any, of the challenged member, as well as any other evidence presented, to determine whether the grounds stated and proved or admitted are sufiicient in fact to disqualify a chal- lenged member." (M.C.M., par. 121.) (7) The members of the court are then sworn by the judge advocate, and the judge advocate is sworn by the president of the court according to the following provisions of the Arti- cles of War: COURTS-MARTIAL 29 " Abt. 19. Oaths. — The judge advocate of a general or special court-martial shall administer to the members of the court, before they proceed upon any trial, the following oath or affirmation: ' You, A. B., do swear (or affirm) that you will well and truly try and determine, according to the evidence, the matter now before you, between the United States of America and the person to be tried, and that you will duly administer justice, without partiality, 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 doubt should arise, not explained by said articles, then accord- ing to your conscience, the best of your understanding, and the custom of war in like cases; and you do further swear (or affirm) that you will not divulge the findings or sentence of the court until they shall be published by the proper authority, except to the judge advocate and assistant judge advocate; neither will you disclose or discover the vote or opinion of any particular member of the cITurt- martial, unless required to give evidence thereof as a witness by a court of justice in due course of law. So help you God.' " When the oath or affirmation has been administered to the members of a general or special court-martial, the president of the court shall administer to the judge advocate and to each assistant judge advocate, if any, an oath or affirmation in the following form : ' You, A. B., do swear (or affirm) that you will not divulge the find- ings or sentence of the court to any but the proper authority until they shall be duly disclosed by the same. So help you God.' " AU persons 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 shall give in the case now in hear- ing shall be the truth, the whole truth, and nothing but the truth. So help you God.' "Every reporter of the proceedings of a court-martial shall, before entering upon his duties, make oath or affirmation in the following form : ' You swear (or affirm) that you will faithfully per- form the duties of reporter to this court. So help you God.' " Every interpreter in the trial of any case before a court-martial shall, before entering upon his duties, make oath or affirmation in the following form : ' You swear (or affirm) that you will truly interpret in the case now in hearing. So help you God.' 30 MILITARY LAW " In case of aflSrmation the closing sentence of adjuration will be omitted." " On the swearing in of the members and the judge advo- cate, the organization of the court is complete for the trial of the charges in the case then before the court. In each case tried by the court the appointing order must be read anew, a. new opportunity to challenge must be given, and the mem- bers, judge advocate, reporter, and interpreter must be sworn anew. In each case the proceedings must be complete with- out reference to any other case." (M.C.M., par. 143.) (8) The accused is then arraigned, that is to say, the judge advocate reads the charges and specifications to the accused and asks him how he pleads to the several specifications and charges. (M.C.M., 144.) If the accused pleads guilty, the president of the court calls his attention to the effect of his plea, explaining the elements of the offense and stating the maximum punishment prescribed therefor. (M.C.M., par. 154.) A refusal to plead has the effect of a plea of not guilty according to the provisions of the 21st Article of War: " Art. 21. Refusal to plead. — When the accused, arraigned before a court-martial, from obstinacy and deliberate design stands mute or answers foreign to the purpose, the court may proceed to trial and judgment as if he had pleaded not guilty." (9) The judge advocate then reads to the court extracts from the Manual for Court-Martial, showing the gist of or elements constituting the offense or offenses charged. (M.C.M., par. 197.) (10) The judge advocate may then make an opening state- ment outlining what he expects to prove; and the accused or his counsel may also make a statement. (M.C.M., par. 197.) (11) Witnesses for the prosecution are then introduced by the judge advocate and sworn. (A.W., 19, SMpj'ap.29.) Each witness is then examined by the judge advocate, the ac- COURT&-MAIITIAL 31 cused or his counsel may then cross-examine, and the judge advocate may reexamine if he wishes. (M.C.M., pars. 249- 255.) The judge advocate then asks the court if any member desires to question the witness, and any member may proceed to question the witness. When the prosecution has nothing further to offer the judge advocate announces that the prose- cution rests. Witnesses for the defense are then sworn. The judge ad- vocate asks each witness when he goes on the witness stand whether he knows the accused and if so, to state who he is. (M.C.M., par. 250.) Each witness for the defense is then examined by the accused or his counsel and may be cross- examined by the judge advocate and reexamined by the ac- cused or his counsel. The witness may then be questioned by the court if any member of the court wishes to question him. The accused may testify on his own behalf, but cannot be compelled to testify. After the defense rests, the judge advocate may swear and examine new witnesses to rebut the testimony of the witnesses for the accused. The Articles of War contain the following provisions as to evidence (and see M.-C.M., pars. 159-193): " Akt. 22. Peocess to obtain witnesses. — Every judge advocate of a general or special court-martial and every summary court-martial shall have power to issue the like process' to compel witnesses to appear and testify which courts of the United States, having criminal jurisdiction, may lawfully issue; but such process shall run to any part of the United States, its Territories, and possessions. " Abt. 23. Refusal to appbab oh testify. — Every person not subject to military law who, being duly subpoenaed to appear as a witness before any military court, commission, court of inquiry, or board, or before any officer, military or civil, designated to take a deposition to be read in evidence before such court, coramissioni court of inquiry, or board, wiUfully neglects or refuses to appear, or refuses to qualify as a witness, or to testify, or produce documentary 32 MILITARY LAW evidence which such person may have been legally subpoenaed to produce, shall be deemed guilty of a misdemeanor, for which such person shall be punished on information in the district court of the United States or in a court of original criminal jurisdiction in any of the territorial possessions of the United States, jurisdiction being hereby conferred upon such courts for such purpose; and it shall be the duty of the United States district attorney or the officer prose- cuting for the Government in any such court of original criminal jurisdiction, on the certification of the facts to him by the military court, commission, court of inquiry, or board, to file an information against and prosecute the person so offending, and the punishment of such person, on conviction, shall be a fine of not more than $500 or imprisonment not to exceed six months, or both, at the discretion of the court : Provided, That the fees of such witness and his mileage, at the rates allowed to witnesses attending the courts of the United States, shall be duly paid or tendered said witness, such amounts to be paid out of the appropriation for the compensation of witnesses. " Art. 24. Compulsory self-incrimination prohibited. — No witness before a military court, commission, court of inquiry, or board, or before any officer, military or civil, designated to take a deposition to be read in evidence before a military court, commis- sion, court of inquiry, or board, shall be compelled to incriminate himself or to answer any questions which may tend to incriminate or degrade him. "Art. 25. Depositions — When admissible. — A duly au- thenticated deposition taken upon reasonable notice to the oppo- site party may be read in evidence before any military court or commission in any case not capital, or in any proceeding before a court of inquiry or a military board, if such deposition be taken when the witness resides, is found, or is about to go beyond the State, Territory, or District in which the court, commission, or board is ordered to sit, or beyond the distance of one hundred miles from the place of trial or hearing, or when it appears to the satisfac- tion of the court, commission, board, or appointing authority that the witness, by reason of age, sickness, bodily infirmity, imprison- ment, or other reasonable cause, is unable to appear and testify in person at the place of trial or hearing: Provided, That testimony by deposition may be adduced for the defense in capital cases. COURTS-MARTIAL 33 " Aht. 26. Depositions — Before whom taken. — Deposi- tions to be read in evidence before military courts, commissions, courts of inquiry, or military boards, or for other use in military administration, may be taken before and authenticated by any officer, military or civil, authorized by the laws of the United States or by the laws of the place where the deposition is taken to administer oaths. " Akt. 27. Courts op inquiry — Records of, when admis- sible. — The record of the proceedings of a court of inquiry may be read in evidence before any court-martial or military commission in any case not capital nor extending to the dismissal of an officer, and may also be read in evidence in any proceeding before a court of inquiry or a military board: Provided, That such evidence may be adduced by the defense in capital caSes or cases extending to the dismissal of an officer." In examining witnesses regard should be had to the rules of evidence as applied in civil courts. The 38th Article of War provides as follows : " Art. 38. President may prescribe rules. — The President may by l-egulations, which he may modify from time to time, pre- scribe the procedure, including modes of proof, in cases before courts-martial, courts of inquiry, military commissions, and other military tribunals: Provided, That nothing contrary to or inconsis- tent with these articles shall be so prescribed: Provided further. That all rules made in pursuance of this article shall be laid before the Congress annually." Prior to the enactment of this article, courts-martial usu- ally followed in a general way the rules of evidence but were not required by any statute to do so. But as a result of the enactment of the 38th Article of War, the President has power by regulations to prescribe procedure (including evi- dence) in courts-martial; and the rules of evidence as ap- plied by the civil courts, are laid down in the Manual for Courts-Martial which has the force of an Executive regula- tion. (M.C.M., par. 198.) 34 MILITARY LAW The rules governing the admissibihty of evidence are clearly stated by Colonel Wigmore, the great authority on the Law of Evidence, in Chapter XI of the Manual for Courts-Martial, from which the following extracts are taken: " The oath taken by members of general and special courts require them to try and determine ' according to evidence ' the matter before them. A summary court, although it does not take such an oath, will also determine the matter before it solely on the evidence in the case, and no evidence would be admissible before a summary court that is not admissible before general and special courts." (M.CM., par. 194.) " Evidence to be admissible must be not only material but relevant to the issues in the case. Evidence is not material when the fact which it aims to prove is not a part of the issues in the case. Evidence is not relevant when, though the fact which it aims to prove is material, yet the evidence itself is too remote or far-fetched to have any probative value for that purpose." (M.C.M., par. 202.) " The witness must be competent. The modern tendency, as evidenced to a great extent by statutes of different States, and to a limited extent by Federal statutes, is to recognize practically no grounds for incompetency, but to admit the material and relevant testimony of a witness offered by either side and leave his credit to be estimated according to all the circumstances." (M.C.M., par. 208.) " Marital relationship was a disqualification at common law. Except in certain cases, husband or wife could not testify either for or against one another. This rule has been abol- ished in most States. In courts-martial the rule is as follows : " (1) Wife or husband of an accused may testify on behalf of the accused without restriction. " (2) Wife or husband of an accused may not be called to testify against the accused without the consent of both ac- cused and witness, unless on a charge of an offense committed by the accused against the witness. COURTS-MARTIAL 35 " (3) Wife or husband of any person may not testify to confidential communications of the other, unless the other give consent." (M.C.M., par. 213.) " A prime qualification in a witness is that he should speak only of what he has observed with his senses, or had an op- portunity to observe. . . . This fundamental principle of requiring personal knowledge (or opportunity to observe) leads up to the hearsay rule, applicable to statements made by persons not in court. The hearsay rule signifies that when a witness testifies not to what he himself saw or heard but to what he heard some one else say, his testimony on that point shall be rejected, and the person who said it shall be produced in the court to testify, the object being to get at the first-hand source of knowledge." (M.C.M., par. 220.) "The hearsay rule is subject to some well-established ex- ceptions; most of them are based on the general principle that there is an unavoidable necessity for using the hearsay, because the person is deceased or for some other reason can not be secured as a witness. These exceptions are now settled, however, into fixed rules, irrespective of the above principle. "Nevertheless, in courts-martial the liberal principle, now adopted in one or two States, may well be followed in extreme cases, viz., wherever the person, whose statement is desired to be offered (whether written or oral), is deceased at the time of the trial, and was a person having personal knowledge of the facts, his statement may be admitted, in the discretion of the court." (M.C.M., par. 221.) " On trials for murder and manslaughter, the law recog- nizes an exception to the rule rejecting hearsay by allowing the dying declarations of the victim of the crime, in regard to the circumstances which produced his condition, and es- pecially as to the person by whom the violence was committed, to be detailed in evidence by one who heard them. The reason for admitting such declarations where the victim be- lieves death is impending is that his belief is equal to the 36 MILITARY LAW sanctity of an oath in causing him to tell the truth." (M.C.M., par. 222.) " Another exception to the hearsay rule consists of the in- culpatory or exculpatory declarations or statements that con- stitute part of the res gestae. By the res gestae is meant the circumstances and occurrences substantially contemporane- ous with the facts at issue that explain and elucidate the character and quality of such facts. Such are threats or dec- larations of the accused in connection with his commission of the crime that indicate his intent or knowledge; declara- tions or exclamations of a party injured that go to indicate the nature of the violence and the parties responsible; language of accomplices; cries of bystanders; facts, cir- cumstances, and declarations showing premeditation and preparation for the crime. ... A liberal use of this excep- tion may well be made." (M.C.M., par. 223.) " Another exception to the rule excluding hearsay evidence is the rule that admits testimony as to confessions of guilt made by the accused. . . . There must be corroborating evidence, either direct or circumstantial, outside of the con- fession itself, that the crime charged has been committed. . . . It must be affirmatively shown that the confession was en- tirely voluntary on the part of the accused." (M.C.M., par. 225.) " Somewhat connected with the subject of confessions is that of declarations or admissions against one's own interest. This constitutes another exception to the rule excluding hearsay. In many instances the accused, after the commis- sion of an offense, makes statements which fall short of a full confession of guilt but do constitute important admissions as to his connection with the offense. The rule is that such ad- missions if against his own interest may be admitted in evi- dence." (M.C.M., par. 226.) " A writing is the best evidence of its own contents and miist be introduced to prove its contents. But if it has been COURTS-MARTIAL 37 lost or destroyed or it is otherwise satisfactorily shown that the writing can not be produced, then the contents may be proved by a copy or by oral testimony of witnesses who have seen the writing. (M.C.M., par. 237.) " A privileged communication is one that relates to matters occurring during a confidential relation, which it is the public policy to protect. A witness can decline to answer a question touching such a communication. The confidential relations that were protected at common law and which are met with in court-martial practice are the following: State secrets . . . communications between husband and wife ... at- torney and client . . . poUce secrets. . . . Communications from officers or soldiers to medical officers [are] not privileged . . . Neither are the communications between civilian phy- sician and patient privileged. . . . The fifth amendment to the Constitution of the United States provides that in a crimi- nal case the person shall not be compelled ' to be a witness against himself.' The principle embodied in this provision applies to trials by courts-martial and is not limited to the person on trial, but extends to any person who may be called as a witness. [See also A.W., 24, supra]." (M.C.M., pars. 227-236.) (12) At the close of all the testimony the accused may make a statement, either oral or written. He is allowed to make this statement without being sworn. (M.C.M., pars. 260-292.) (13) After the accused has made a statement, if he desires to do so, argument may be made by the judge advocate and the accused or his counsel. The judge advocate has the right to open and close the argument. (M.C.M., par. 293.) (14) After the close of the arguments, the court is closed; that is to say, the judge advocate, the accused and his counsel and all spectators are excluded from the court room, or if it seems to the court more convenient, the court retires. (M.C.M., par. 91.) The 30th Article of War provides: 38 MILITARY LAW " Art. 30. Closed sessions. -^ Whenever a general or special court-martial shall sifrin closed session, the judge advocate and the assistant judge advocate, if any, shall withdraw; and when their legal advice or their assistance in referring to the recorded evidence is required, it shall be obtained in open court, and in the presence of the accused and of his counsel if there be any." The court then proceeds to make its findings and to fix the sentence. The 31st Article of War provides: " Art. 31. Order or voting. — Members of a general or special court-martial, in giving their votes, shall begin with the junior in rank." " The charges and specifications are voted upon in the same order that is followed in arraigning the accused, the first specification to the first charge being voted upon, then the second, third, and thereafter in order, followed by a vote upon the charge itself; and so on with the other charges. A tie vote on a finding is a finding of not guilty. " All convictions, whether by general or special court- martial, may be determined by a majority of the members present, except that no person shall, by general court-martial, be convicted of an offense for which the death penalty is made mandatory by law, unless by the concurrence of two- thirds of the members of said court-martial. [Where the death penalty is not mandatory, but is discretionary, a con- viction may be determined by a majority vote, but two- thirds of the members must concur in the death penalty before it can be imposed.] " (M.C.M., pars. 294, 295, as amended by Changes, M.C.M. 2, '17.) " Courts-martial will, in the case of a soldier, after a finding, of guilty, be opened for the purpose of ascertaining whether evidence of previous convictions has been referred to the court by the appointing authority, and if so, of receiving it. The introduction and use of evidence of previous convictions will be limited to that pertaining to convictions by courts-martial COURTS-MARTIAL 39 of. an offense or offenses committed by the accused during the current enlistment and within one year next preceding the commission of any of the offenses of which he stands convicted before the court. These convictions may be proved only by the records of previous trials and convictions or by duly au- thenticated copies of such records, or by duly authenticated copies of orders promulgating such trials and convictions." (M.C.-M., par. 306.) " After the findings have been determined upon and re- sulted in a conviction upon the charge, or some one at least of the charges where there are several, or in a conviction of a lesser offense included in the one charged, and, in the case of a soldier, the evidence of previous convictions, if any, have been introduced, the court proceeds to adjudge the sentence. In voting, the thirty-first Article of War requires that the junior in rank shall vote first, and the votes are therefore taken in the inverse order of rank. Those members desiring to propose a sentence usually write it on a slip of paper and hand it to the president. The president reads the proposed sentences to the court, and the members vote on them in order, beginning with the lightest, until a majority present, [unless the sentence proposes death penalty, agree upon a sentence. When a sentence of death is proposed, two-thirds of the members must agree upon the sentence before it can be adopted, regardless of whether the death penalty is manda- tory or merely discretionary in the case on trial.]. Even in a case where the punishment is fixed, as, for instance, under the eighty-second article, where the punishment for lurking or acting as a spy is death, and under the ninety-fifth article, where the punishment is dismissal, the members must by vote impose this punishment. A.11 the members of the court, those who voted for an acquittal equally with those who voted for conviction, should' vote for some sentence." (M.C.M., par. 308, as amended by Changes, M.C.M. 2, '17.) 40 MILITARY LAW 15. Punishments. The Articles of War contain the follow- ing proAdsions as to punishments: " Art. 41. Certain kinds prohibited. — Punishment by- flogging, or by branding, marking, or tattooing on the body is prohibited. " Art. 42. Places of confinement — When lawful. — Except for desertion in time of war, repeated desertion in time of peace, and mutiny, no person shall under the sentence of a "court- martial be punished by confinement in a penitentiary unless an act or omission of which he is convicted is recognized as an offense of a civil nature by some statute of the United States, or at the common law as the same exists in the District of Columbia, or by way of commutation of a death sentence, and unless, also, the period of confinement authorized and adjudged by such court-martial is one year or more: Prtimded, That when a sentence of confinement is adjudged by a court-martial upon conviction of two or more acts or omissions any one of which is punishable under these articles by confinement in a penitentiary, the entire sentence of confinement may be executed in a penitentiary : Provided further, That peni- tentiary confinement hereby authorized may be served in any pen- itentiary directly or indirectly under the jurisdiction of the United States: Provided further, That persons sentenced to dishonorable discharge and to confinement not in a penitentiary, shall be confined in the United States Disciplinary Barracks or elsewhere as the Secretary of War or the reviewing authority may direct, but not in a penitentiary. " Art. 43. Death sentence — When lawful. — No person shall, by general court-martial, be convicted of an offense for which the death penalty is made mandatory by law, nor sentenced to suffer death, except by the concurrence of two-thirds of the members of said court-martial and for an offense in these articles expressly made punishable by death. All other convictions and sentences, whether by general or special court-martial, may be determined by a majority of the members present. "Art. 44. Cowardice: fraud — Accessory penalty. — When an oflicer is dismissed from the service for cowardice or fraud, the crime, punishment, name, and place of abode of the deUnquent COURTS-MARTIAL 41 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. " Akt. 45. Maximum limits. — Whenever the punishment for a crime or offense made punishable by these articles is left to the dis- cretion of the court-martial, the punishment shall not, in time of peace, exceed such limit or limits as the President may from time to time prescribe." " For officers the legal sentences by court-martial, depend- ing on the nature of the offense, include (1) death, (2) dis- missal with confinement at hard labor, (3) dismissal, (4) loss of rank, (5) suspension from rank, command or duty, with or without loss of pay or part of pay, (6) fine or forfeiture of pay, (7) confinement to limits or post or reservation, (8) rep- rimand and (9) admonition." (M.C.M., par. 310.) " For soldiers, the legal sentences, depending on the nature of the offense and the jurisdiction of the court, include (1) death, (2) dishonorable discharge, (3) confinement at hard labor, (4) hard labor without confinement, (5) forfeiture of pay, (6) detention of pay, and (7) reprimand; for noncom- missioned officers, (8) reduction to the ranks; for privates, first class, (9) reduction to second-class privates and privates; for cooks of the Quartermaster Corps (where sentence is im- posed by a general court-martial), (10) reduction to the ranks; and for those holding a certificate of eligibility to promotion, (11) deprivation of all rights and privileges arising from such a certificate. [That portion of pay which is required to be allotted to dependent relatives of class A under the provision of Article II of the War Risk Insurance Act of October 6, 1917, is not subject to be forfeited by sentence of courts- martial. A sentence imposing forfeiture of a part of pay means the forfeiture of the specified part of that portion of the pay which is not required to be so allotted.] Confinement without hard labor should never be imposed." (M.C.M., par. 311, as amended by Changes, M.C.M. 3, '18.) 42 MILITARY LAW In the case of soldiers, the question of previous convictions becomes important, for previous offenders receive as a rule a heavier penalty than those who are convicted for the first time. But only offenses committed by the accused during the current enlistment and within one year next preceding the commission of any of the offenses of which he is convicted, are considered. (M.C.M., par. 306, supra p. 38.) As to some offenses, as will appear in the following chapter, the punishment is prescribed by the Articles of War; as to others the punishment is left to the discretion of the court- martial. Under the provisions of A. W., 45, the President by executive orders prescribes the maximum limits (see M.C.M., par. 349) ; but it will be noticed that these limits are applica- ble only in time of peace. It is to be noticed that the penalty of death can never be inflicted except for offenses for which death is expressly mentioned in the Articles of War as a proper penalty. (A.W., 43.) 16. Action by Appointing or Superior Authority. No find- ing or sentence of a court-martial has any legal effect until it has been approved, and in some cases confirined, by proper authority. Until that time the finding and sentence are not to be divulged by the court or judge advocate. (A.W., 19, supra p. 29.) The Articles of War contain the following provisions as to approval and confirmation: " Art. 46. Approval and execution of sentence. — No sentence of a court-martial shall be carried into execution until the same shall have been approved by the ofBcer appelating the court or by the officer commanding for the time being. " Art. 47. Powers incident to power to approve. — The power to approve the sentence of a court-martial shall be held to include: " (a) The power to approve or disapprove a finding and to approve only so much of a finding of guilty of a particular offense as involves a finding of guilty of a particular offense as involves a COURTS-MARTIAL 43 finding of guilty of a lesser included offense when, in the opinion of the authority having power to approve, the evidence of record requires a finding of only the lesser degree of guilt; and " (b) The power to approve or disapprove the whole or any part of the sentence. " Art. 48. Confirmation — When required. — In addition to the approval required by article forty-six, confirmation by the President is required in the following cases before the sentence of a court-martial is carried into execution", namely: " (a) Any sentence respecting a general officer; " (b) Any sentence extending to the dismissal of an officer, except that in time of war a sentence extending to the dismissal of an oflBcer below the grade of brigadier general may be carried into execution upon confirmation by the commanding general of the Army in the field or by the commanding general of the territorial department or division; " (c) Any sentence extending to the suspension or dismissal of a cadet; and " (d) Any sentence of death, except in the cases of persons con- victed in time of war of murder, rape, mutiny, desertion, or as spies; and in such excepted cases a sentence of death may be carried into execution upon confirmation by the commanding general of the Army in the field or by the commanding general of the territorial department or division. " When the authority competent to confirm the sentence has already acted as the approving authority no additional confirmation by him is necessary. " Art. 49. Powers incident to power to confirm. — The power to confirm the sentence of a court-martial shall be held to include: " (a) The power to confirm or disapprove a finding, and to con- firm so much only of a finding of guilty of a particular offense as involves a finding of guilty of a lesser included offense when, in the opinion of the authority having power to confirm, the evidence of record requires a finding of only the lesser degree of guilt; and " tb) The power to confirm or disapprove the whole or any part of the sentence. 44 MILITARY LAW "Art. 50. Mitigation ok bemission of sentences. — The power to order the execution of the sentence adjudged by a court- martial shall be held to include, inter alia, the power to mitigate or - remit the whole or any part of the sentence, but no sentence of dis- missal of an officer and no sentence of death shall be mitigated or remitted by any authority inferior to the President. " Any unexecuted portion of a sentence adjudged by a court- martial may be mitigated or remitted by the military authority competent to appoint, for the command, exclusive of penitentiaries and the United States Disciphnary Barracks, in which the person under sentence is held, a court of the kind that imposed the sen- tence, and the same power may be exercised by superior mihtary authority; but no sentence extending to the dismissal of an officer or loss of ffies, no sentence of death, and no sentence approved or confirmed by the President shall be remitted or mitigated by any other authority. " The power of remission and mitigation shall extend to all un- collected forfeitures adjudged by sentence of a court-martial. "Art. 51. Suspension of sentences of dismissal or death. — The authority competent to order the execution of a sentence of dismissal of an officer or a sentence of death may suspend such sen- tence until the pleasure of the President be known, and in case of such suspension a copy of the order of suspension, together with a copy of the record of trial, shall immediately be transmitted to the President. " Art. 52. Suspension of sentences. — The authority com- petent to order the execution of the sentence of a court-martial may, at the time of the approval of such sentence, suspend the execution, in whole or in part, of any such sentence as does not extend to death, and may restore the person under sentence to duty during such sus- pension. A sentence, or any part thereof, which has been so sus- pended may be remitted, in whole or in part, except in cases of persons confined in the United States Disciplinary Barracks or its branches, by the officer who suspended the same, by his successor in office, or by any officer exercising appropriate court-martial jurisdiction over the command in which the person under sentence may be serving at the time, and, subject to the foregoing exceptions the same authority may vacate the order of suspension at any time COURTS-MARTIAL 45 and order the execution of the sentence or the suspended part thereof in so far as the same shall not have been previously remitted. The death or honorable discharge of a person under suspended sen- tence shall operate as a complete remission of any unexecuted or unremitted part of such sentence. " Art. 53. Execution ob eemission — Confinement in dis- CIPLINAEY BARRACKS. — When a sentence of dishonorable discharge iias been suspended uiftil the soldier's release from confinement, the execution or remission of any part of his sentence shall, if the soldier be confined in the United States Disciplinary Barracks, or any branch thereof, be directed by the Secretary of War." A.W. 52 and 53 are given as amended by Act of July 9, 1918. 17. Limitations upon Prosecution. The Articles of War contain the following provisions as to limitations upon prosecutions : " Art. 39. As to time. — Except for desertion committed in time of war, or for mutiny ^or murder, no person subject to military law shall be liable to be tried or punished by a court-martial for any crime or offense committed more than two years before the arraign- ment of such person: Provided, That for desertion in time of peace or for any crime or offense punishable under articles ninety-three and ninety-four of this code the period of limitations upon trial and punishment by court-martial shall be three years: Provided further, That the period of any absence of the accused from the-jurisdiction of the Uidted States, and also any period during which by reason of some manifest impediment the accused shall not have been amen- able to military justiae, shall be excluded in computing the aforesaid periods of limitation: And provided further. That this article shall not have the effect to authorize the trial or punishment for any crime or offense barred by the provisions of existing. law. " Art. 40. As to number. — No person shall be tried a second time for the same offense." It will be noticed that there is no limitation as to time upon trial by court-martial for desertion in time of war, mutiny or 46 MIUTARY LAW murder; that the lunitation is three years in the case of de- sertion in time of peace or offenses punishable under A.W., 93 or A.W., 94, infra p. 67; and that in other cases the limita- tion is two years. The limitation as to the number of trials is founded on the principle, well established in the civil law, as to double jeopardy. (M.C.M., par. 149.) CHAPTER III MILITARY OFFENSES 18. Punitive Articles. The offenses which are punishable by courts-martial are to be found in the Articles of War, in- cluded in the so-called " Punitive Articles." (A.W., 54-96.) These offenses are grouped under the following headings : A. EnUstment; Muster; Returns. (A.W., 54-57,) B. Desertion; Absence without Leave. (A.W., 58-61.) C. Disrespect; Insubordination; Mutiny. (A.W., 62-68.) D. Arrest; Confinement. (A.W., 69-74.) E. War Offenses. (A.W., 75-82.) F. Miscellaneous Crimes and Offenses. (A.W., 83-96.) The student can hardly be expected to know and remember all the Punitive Articles by number but the following are those which in the opinion of Colonel Wambaugh, being of most frequent occurrence, are most easy and perhaps important to remember: 54, 58, 61, 62, 63, 64, 65, 69, 75, 83, 84, 85, 86, 93, 94, 95, 96. Wambaugh, Guide to the Articles of War, preface. A. Enlistment; Mustek; Returns 19. Fraudulent Enlistment. The 54th Article of War pro- vides as follows: " Aet. 54. FiLiUDULENT ENLISTMENT. — Any person who shall procure himself to be enlisted in the mihtary service of the United States by means of willful misrepresentation or concealment as to his qualifications for eiJistment, and shall receive pay or allowances under such enlistment, shall be punished as a court-martial may direct." 47 48 MILITARY LAW It will be noticed that this offense can be committed only by a soldier; that the offense is not committed unless the accused acted intentionally and not merely carelessly or by mistake; that the representation or concealment must relate to the qualifications for enlistment; and that the offense has not been fully committed until the accused has received pay or allowances. (M.C.M., par. 405.) The offense is com- mitted when a soldier reenlists without having been pre- viously discharged, and in such a case the soldier is guilty also of desertion. On this point the 29th Article of War pro- vides as follows : " Art, 29. Enlistment without dischabgb. — Any soldier who, without having first received a regular discharge, again enlists in the Army, or in the militia when in the service of the United States, or in the Navy or Marine Corps of the United States, or in any foreign army, shall be deemed to have deserted the service of the United States; and, where the enlistment is in one of the forces of the United States mentioned above, to have fraudulently enlisted therein." 20. Officer Making Unlawful Enlistment. The 55th Article of War provides as follows : . " Abt. 55.. OrncBB making unlawful enlistment. — Any officer who knowingly enlists or musters into the military service any person whose enlistment or muster in is prohibited by law, regulations, or orders shall be dismissed from the service or suffer such other punishment as a court-martial may direct." It will be noticed that this offense can be committed only by an officer. The offense is not committed unless the ac- cused acted knowingly, although his knowledge need not amount to a certainty, a belief such as the ordinarily prudent man acts upon being sufficient. (M.C.M., par. 406.) 21. False Muster. The 56th Article of War provides as follows : " Art. 56. Muster rolls — False muster. — At every muster of a regiment, troop, battery, or company the commanding officer MILITARY OFFENSES 49 thereof shall give to the mustering officer certificates, signed by him- self, 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 certi- ficates, together with, the muster roUs, shall be transmitted by the mustering officer to the Department of War as speedily as the dis- tance of the place and muster will admit. Any officer who know- ingly makes a false muster of man or animal, or who signs or.directs or allows the signing of any muster roll knowing the same to contain a false muster or false statement as to the absence or pay of an officer or soldier, or who wrongfully takes money or other consideration on mustering in a regiment, company, or other organization, or on signing muster roUs, or who knowingly musters as an officer or soldier a person who is not such officer or soldier, shall be dismissed from the service and suffer such other punishment as a court- martial may direct." Mustering has been defined as an assembling, inspecting, entering upon the formal rolls, and officially reporting, as a component part of the command, of persons or public animals. (Winthrop, p. 852; M.C.M., par. 407.) This article like the preceding one applies only to officers. It includes four offenses: (1) knowingly making a false muster; (2) know- ingly signing, directing or allowing the signing of false muster rolls; (3) knowingly taking money or other consideration on muster or signing muster rolls; (4) knowingly mustering as an officer or soldier one who is not an officer or soldier. 22. False Returns or Omission to Render Returns. The 57th Article of War, as amended by Act of July 9, 1918, pro- vides as follows: " Art. 57. False betuhns — Omission to eender returns. — Every officer commanding a regiment, an independent troop, bat- 50 MILITARY LAW tery, or company, or a garrison, shall, in the begiiming of every month, transmit through the proper channels, to the Departmejit of War, an exact return of the same. Every officer whose duty it is to render to the War Department or other superior authority a return of the state of the troops under his command, or of the arms, am- munitions, clothing, funds, or other property thereunto belonging, who knowingly makes a false return tiiereof shall be dismissed from the service and suffer such other punishment as a court-martial may direct. And any officer who, through neglect or design, omits to render sudi return shall be punished as a court-martial may direct." It will be noticed that this article describes two offenses, one of commission, the other of omission. The offense of rendering a false return is not committed unless the accused acted with knowlec^e. The offense of omitting to render a return is not committed unless the accused was in some way culpable; but he is culpable if the omission were careless as well as where it was intentional. (M.C.M., par. 408.) These two offenses can be committed only by commanding officers. B. Desertion; Absence without Leave 23. Desertion. The offense of desertion is made punish- - able by the very important 58th Article of War. " Art. 58. Desertion. — Any person subject to military law who deserts or attempts to desert the service of the United States shall, if the offense be committed in time of war, suffer death or such other punishment as a court-martial may direct, and, if the offense be committed at any other time, any punishment, excepting death, that a court-martial may direct." Desertion has been defined as absence without leave ac- companied by the intention not to return. (M.C.M.,.par. 409.) If the accused once absents himself with an intention not to return (or to return only if a certain event happens), the offense is completed, and a subsequent change of mind and return is no defense. An attempt to desert, as well as desertion itself, is made punishable by this article. MILITARY OFFENSES 51 A soldier who, without having received a discharge, again enlists, is ipso facto guilty of desertion and no proof of inten- tion is necessary. (A.W., 29, supra p. 48.) The 28th Article of War contains the following provision as to officers: " Art. 28. Resignation without acceptance does not re- lease OFFICER. — Any officer who, having tendered his resignation and prior to due notice of the acceptance of the same, quits his post or proper duties without leave and with intent to absent himself permanently therefrom shall be deemed a deserter." 24. Advising or Aiding Another to Desert. The 59th Article of War provides as follows : "Art. 59. Advising or aiding another to desert. — Any person subject to mihtary law who advises or persuades or know- ingly assists another to desert the service of the United States shall, if the offense be committed in time of war, suffer death, or such other punishment as a court-martial may direct, and, if the offense be committed at any other time, any punishment, excepting death, . that a court-martial may direct." Three offenses are here denounced, viz., advising, persuad- ing, and knowingly assisting another to desert. (M.C.M., par. 410.) 25. Entertaining a Deserter. The 60th Article of War provides as follows : " Art. 60. Entertaining a deserter. — Any officer ^o, after having discovered that a soldier in his command is a deserter from the mihtary or naval service or from the Marine Corps, retains such deserter in his command without informing superior authority or the commander of the organization to which the deserter belongs, shall be punished as a court-martial may direct." This offense can be committed only by commanding officers. " Discovered does not imply a certainty on the one hand or a mere suspicion on the other. It implies such a belief as the ordinarily prudent officer would act upon." (M.C.M., par. 411.) 52 MILITARY LAW 26. Absence without Leave. The 61th Article of War is an important one. It provides as follows: " Art. 61. Absence without leave. — Any person subject to military law who fails to repair at the fixed time to the properly appointed place of duty, or goes from the same without proper' leave, or absents himself from his command, guard, quarters, station, or camp without proper leave, shall be punished as a court- martial may direct." The offense of being absent without leave (or a.w.o.l. as it is expressed by way of abbreviation) is committed when the absence is due to any fault of the accused. (M.C.M., par. 412.) C. Disrespect; Insubordination; Mutiny 27. Disrespect toward Various OlKcials. The 62d Article of War provides as follows: " Art. 62. Disrespect toward the President, Vice Presi- dent, Congress, Secretary of War, governors, legislatures. — Any officer who uses contemptuous or disrespectful words against the President, Vice President, the Congress of the United States, the Secretary of War, or the governor or legislature of any State, Territory, or other possession of the United States in which he is quartered shall be dismissed from the service or suffer such other punishment as a court-martial may direct. Any other person subject to military law who so offends shall be punished as a court- martial may direct." The offense may be committed whether the words ■ are spoken or written ; whether they are true or false ; whether they are spoken publicly or privately; whether they refer to the public or private character of the official. But no offense is committed unless the words are in themselves or because of the connection in which they are used, contemptuous or dis- respectful. (M.C.M., par 413.) MILITARY OFFENSES 53 28. Disrespect toward Superior Officer. The 63d Article of War is an important one. It provides as follows : " Aet. 63. Disrespect toward superior officer. — Any per- son subject to military law who behaves himself with disrespect toward, his superior officer shall be punished as a court-martial may direct." Disrespect may be shown by words or by conduct. " Disrespect by words may be conveyed by opprobrious epithets or other contumelious or denunciatory language. (Winthropi, p. 874.) Disrespect by acts may be exhibited in a variety of modes — as neglecting the customary salute, by a marked disdain, indifference, insolence, impertinence, un- due familiarity, or other rudeness in the presence of the su- perior officer. (Winthrop, p. 875.) It is not essential that the behavior be intentional, and it is immaterial that only facts were stated; but where the person who did the acts or spoke the words did not know that the person against whom they were directed was his superior officer, such ignorance is a defense." (M.C.M., par. 414.) 29. Assaulting or willfully Disobeying Superior Officer. The 64th Article of War is a very important one. It provides : "Art. 64. Assaulting or willfully disobeying superior OFFICER. — Any person subject to military law who, on any pre- tense whatsoever, strikes his superior officer or draws or lifts up any weapon or offers any violence against him, being in the execution of his office, or willfully disobeys any lawful command of his superior officer, shall suffer death or such other punishment as a court- martial may direct." The article, it will be noticed, covers acts of commission and acts of omission. (See M.C.M., par. 415.) 30. Insubordinate Conduct toward Non-commissioned Of- ficer. • The very important 65th Article of War provides as follows: 54 MILITARY LAW " Art. 65. Insubordinate conduct toward noncommissioned OFFICER. — Any soldier who strikes or assaults, or who attempts or threatens to strike or 'assault, or willfully disobeys the lawful order of a noncommissioned office:^ while in the execution of his office, or uses threatening or insulting language, or behaves in an insubordi- nate or disrespectful' manner toward a noncommissioned officer while LQ the execution of his office, shall be punished- as a court- martial may direct." This article applies to enlisted men only. It has the same purpose with respect to non-commissioned officers as the pre- vious article has with respect to officers. (M.C.M., par. 416.) 31. Mutiny or Sedition. The 66th Article of War provides as follows : " Art. 66. Mutiny ok sedition. — Any person subject to mili- tary law who attempts to create or who begins, excites, causes, or joins in any mutiny or sedition in any company, party, post, camp, detachment, guard, or other command shall suffer death or such other punishment as a court-martial may direct." " Mutiny imports collective insubordination, and neces- sarily includes some combination of two or more persons in resisting lawful military authority. Sedition implies the raising of commotion or disturbance against the State; it is a revolt against legitimate authority and differs from mutiny in that it implies a resistance to lawful civil power. The con- cert of insubordination contemplated in mutiny or sedition need not be preconceived nor is it necessary that the act of insubordination be active or violent. It may consist simply in a persistent and concerted refusal or omission to obey orders or to do duty with an insubordinate intent." (M.C.M., par. 417.) 32. Failure to Suppress Mutiny or Sedition. The 67th Article of War provides as follows : " Art. 67. Failure to suppress mutiny or sedition. "— Any officer or soldier who, being present at any mutiny or sedition, does MILITARY OFFENSES 55 not use his utmost endeavor to suppress the same, or knowing or having reason to believe that a mutiny or sedition is to take place, does not without delay give information thereof to his commanding officer shall suffer death or such other punishment as a court- martial may direct." This article makes punishable acts of omission. (M.C.M., par. 418.) 33. Quarrels, Frays, and Disorders. The 68th Article of War provides as follows : "Art. 68. Quahrels; fhays; disorders. — All officers and noncommissioned officers have power to part and quell all quarrels, frays, and disorders among persons subject to military law and to order officers who take part in the same into arrest, and other per- sons subject to military law who take part in the same into arrest or confinement, as circumstances may require, untU their proper superior officer is acquainted therewith. And whosoever, being so ordered, refuses to obey such officer or noncommissioned officer or draws a weapon upon or otherwise threatens or does violence to him shall be punished as a court-martial may direct.'' " A fray is a fight in a public place to the terror of the people, in which acts of violence occur or dangerous weapons are exhibited or threatened to be used." (M.C.M., par. 419.) This article states the one case where even a non-commis- sioned officer may place an officer in arrest. D. Ahrest; Confinement 34. Breaking Arrest or Confinement. The 69th and 70th Articles of War have already been stated. (Par. 14, ante.) The 70th Article is not a punitive article. The 69th Article it- will be remembered, after making provisions as to arrest and confinement, further provides that: " Any officer who breaks his arrest or who escapes from confine- ment before he is set at liberty by proper authority shall be dis- missed from the service or suffer such other punishment as a court- 56 MILITARY LAW martial may direct; and any other person subject to military law who escapes from confinement or who breaks his arrest before he is set at liberty by proper authority shall be punished as a court- martial may direct." 35. Refusal to Receive and Keep Prisoners. The 71st Article of War provides as follows: " Art. 71. Refusal to receive and keep pbisonees. — No provost marshal or commander of 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 time, deliver an account in writing, signed by himself, of the crime or offense charged against the prisoner. Any oflicer or soldier so refusing shall be punished as a court-martial may direct." 36. Report of Prisoners Received. The 72d Article of War provides as follows: " Aet. 72. Report or peisonebs eecbivbd. — Every com- mander of a guard to whose charge a prisoner is committed shall, within twenty-four hours after such confinement, or as soon as he is relieved from his guard, report in writing to the commanding officer the name of such prisoner, the offense charged against him, and the name of the officer committing him; and if he fails to make such report he shall be punished as a court-martial may direct." 37. Releasing Prisoner without Proper Authority. The 73d Article of War provides as follows : " Art. 73. Releasing prisoner without proper authority. — Any person subject to military law who, without proper author- ity, releases any prisoner duly committed to his charge, or who through neglect or design suffers any prisoner so committed to escape, shafi be punished as a court-martial may direct." 38. Delivery of Offenders to Civil Authorities. The 74th Article of War provides as follows : " Aet. 74. Delivery of offendees to civil authoeities. — When any person subject to military law, except one who is held by the military authorities to answer, or who is awaiting trial or result MILITARY OFFENSES 57 of trial, or who is undergoing sentence for a crime or offense punish- able under these articles, is accused of a crime or offense committed within the geographical limits of the States of the Union and the District of Columbia, and punishable by the laws of the land, the commanding officer is required, except in time of war, upon applica- tion duly made to use his utmost endeavor to deliver over such accused person to the civil authorities, or to aid the officers of justice in apprehending and securing him, in order that he may be brought to trial. Any commanding officer who upon such application refuses or willfully neglects, except in time of war, to deliver over such accused person to the civil authorities or to aid the officers of justice in apprehending and securing him shall be dismissed from the serv- ice or suffer such other punishment as a court-martial may direct. " When, under the provisions of this article, delivery is made to the civil authorities of an offender undergoing sentence of a court- martial, such delivery, if followed by conviction, shall be held to interrupt the execution of the sentence of the court-martial, and the offender shall be returned to military custody, after having answered to the civil authorities for his offense, for the completion of the said court-martial sentence." The offense here mentioned can be committed only by a commanding officer. " The words ' commanding officer ' as here used, import the officer who is chief of the complete integral place, body of troops, or detachment, wherein the person accused is serving at the time the application is duly made." (M.C.M., par. 424.) It will be noticed that if the person accused of committing a crime is held by the military authorities to answer for his crime or is awaiting trial or result of trial or is undergoing sentence, the commanding officer is not obliged, even in time of peace, to hand him over to the civil authorities. " In accordance with a principle of comity as between the civil and military tribunals in cases of concurrent jurisdiction the jurisdiction which first attaches in a particular case is en- titled to proceed to its termination. This is, however, not an inflexible rule and need not govern the action of the mili- 58 ■ MILITARY LAW tai-y authorities in the case of an accused person demanded by the civil authorities to answer for an offense which is primarily one against the civil community." (M.C.M., par. 35.) E. War Offenses 39. Misbehavior before the Enemy. The important 75th Article of War provides as follows: " Akt. 75. Misbehavior before the enemy. — Any officer or soldier who misbehaves himself before the enemy, runs away, or shamefully abandons or dehvers up any fort, post, camp, guard, or other command which it is his duty to defend, or speaks words in- ducing others to do the like, or casts away his arms or ammunition, or quits his post or colors' to plunder or piUage, or by any means whatsoever occasions false alarms in camp, garrison, or quarters, shall suffer death or such other punishment as a court-martial may du-ect." It will be seen that the article when analyzed mentions seven offenses. (See M.C.M., par. 425.) The article ap- plies only to officers and soldiers. 40. Subordinates compelling Commaxider to Surrender. The 76th Article of war provides as follows : "Art. 76. Subordinates compelling commander to sur- render. — If any commander of any garrison, fort, post, camp, guard, or other command is compelled, by the officers or soldiers under his command, to give it up to the enemy or to abandon it, the officers or soldiers so offending shall suffer death or such other punishment as a court-martial may direct." When the surrender or abandonment is induced by words and not by acts, the offense is that mentioned in the preceding Article. (M.C.M., 426.) 41. Improper Use of Parole or Countersign. The 77th Article of War provides as follows : " Art. 77. Improper use of countersign. — Any person sub- ject to miUtary law who makes known the parole or countersign to MILITARY OFFENSES 59 any persob not entitled to receive it according to the rules and dis- cipline of war, or gives; a parole or countersign different from that which he received, shall, if the offense be committed in time of war, suffer death or such other punishment as a court-martial may direct." " A countei'sign is a word given from the principal head- quarters of a command to aid guards and sentinels in their scrutiny of persons who apply to pass the lines. A parole is a word used as a check on the countersign. It is imparted only to those who are entitled to inspect guards and to com- manders of guards." (M.C.M., par. 427. See also Manual of Interior Gaartf Duty, pars. 210, 211.) 42. Forcing a Safeguard. The 78th Article of War pro- vides as follows : "Art. 78. Forcing a safeguard. — Any person subject to nuhtary law who, in time of war, forces a safeguard shall suffer death or such other punishment as a court-martial may direct." " A safeguard is a detachment, guard, or detail posted by a commander for the purpose of protecting some person or persons, place, or property. The term imports a written' order left by a commander with an enemy subject or posted upon enemy property for the protection of the individual or property concerned. Any trespass on the protection or the safeguard will constitute an offense under the article, provided that the accused was aware of the existence of the safeguard." (M.C.M., par. 428.) 43. Failure to Secure Captured Public Property. The 79th Article of War provides as follows : "Art. 79. Captured • property to be secured for public SERVICE. — All public property taken from the enemy is the prop- erty of the United States and shall be secured for the service of the United States, and any person subject to military law who neglects to secure such property or is guilty of wrongful appropriation, thereof shall be punished as a court-martial may direct." 60 MILITARY LAW 44. Dealing in Captured or Abandoned Property. The 80th Article of War provides as follows : " Art. 80. Dealing in captueed ok abandoned property. — Any person subject to military law who buys, sells, trades, or in any way deals in or disposes of captured or abandoned property, whereby he shall receive or expect any profit, benefit, or advantage to him- self or to any other person directly or indirectly connected with himself, or who fails whenever such property comes into his posses- sion or custody or within his control to give notice thereof to the proper authority and to turn over such property to the proper authority without delay, shall, on conviction thereof, be punished by fine or imprisonment, or by such other punishment as a court- martial, militaTy commission, or other military tribunal may ad- judge, or by any or all of said penalties." " This article is broader than the preceding one in the fol- lowing particulars: It protects abandoned as well as cap- tured property and private as well as public property." (M.C.M., par 430.) It will be noticed that, since this offense is a violation of the laws of war, it is punishable not merely by a court-martial but by a military commission or other military tribunal. (See A.W., 15, swpra p. 17.) 45. Relieving, Corresponding with, or Aiding the Enemy. The 81st Article of War provides as follows : " Art. 81. Relieving, corresponding with, or aiding the enemy. — ^.Whosoever relieves the enemy with arms, ammunition, supplies, money, or other thing, or knowingly harbors or protects or holds correspondence with or gives intelligence to the enemy, either directly or indirectly, shall suffer death, or such other punishment as a court-martial or military commission may direct." " This article describes, in nearly every phrase, an overt act of treasonT The word whosoever, as it is here used, sub- jects to the jurisdiction of courts-martial and military com- missions all persons, either military or civil, who, in the MILITARY OFFENSES 61 theater of operations and during the continuance of war, traffic with the enemy in any of the ways herein denounced." (M.C.M., par. 431.) 46. Spies. The 82d Article of War provides as follows: " Abt. 82. Spies. — Any person who in time of war shall be found lurking or acting as a spy in or about any of the fortifications, posts, quarters, or encampments of any of the armies of the United States, or elsewhere, shall be tried by a general court-martial or by a military commission, and shall, on conviction thereof, suffer death." This offense is a violation of the laws of war (Rules L.W., par. 199), and military commissions have concurrent juris- diction with courts-martial. - " The words ' any person ' bring within the jurisdiction of courts-martial and military commissions all persons of what- ever nationality or civil status who may be accused of the offense denounced by the article. " The principal characteristic of this offense is a clandestine dissimulation of the true object sought, which object is an endeavor to obtain information with the intention of com- municating it to the hostile party. " Thus, soldiers not wearing disguise, dispatch riders, whether soldiers or civilians, and persons in aircraft who carry out their missions openly and who have penetrated hostile lines are not to be considered spies, for the reason that, while they may have resorted to concealment, they have practiced no dissimulatidn. " It is necessary to prove an intent to communicate infor- mation to the hostile party. This intent will very readily be presumed on proof of a deceptive insinuation of the accused among our forces, but this presumption may be rebutted by very clear evidence that the person had come within the lines for a comparatively innocent purpose, as to visit his family or tliat he has assumed a disguise to enable him to reach his own lines. 62 MILITARY LAW " It is not essential that the accused obtain the information sought or that he communicate it. The offense is complete with the lurking or dissimulation with intent to accomplish these objects. " An act of espionage completed by the escape of the ac- cused to his own lines can not be the subject of trial if the _gupndam spy is later captured. " A person living in occupied territory who, without dissim- , ulation, merely reports what he sees or what he hears through agents to the enemy may be charged under the preceding article with communicating or giving intelligence to the enemy, but he may not be charged under this article with being a spy." (M.C.M., par. 432.) It is to be noticed that in the case of a conviction of a spy, the penalty of death is mandatory. F. Miscellaneous Ceimes and Offenses 47. Military Property — Willful or Negligent Loss, Dam- age, or Wrongful Disposition of. The 83d Article of War is important. It provides : " Art. 83. Military property — Willful or negligent LOSS, DAMAGE, or WRONGFUL DISPOSITION OF. — Any person subject to military law who willfully, or through neglect, suffers to be lost, spoiled, damaged, or wrongfully disposed of, any military property belonging to the United States shall make good the loss or damage and suffer such punishment as a court-martial may direct." 48. Waste or Unlawful Disposition of Military Property Issued to Soldiers. The 84:th Article of War is important. It provides: " Art. 84. Waste or unlawful disposition of military PROPERTY issued TO SOLDIERS. — Any soldier who sells or wrong- fully disposes of or willfully or through neglect injures or loses any horse, arms, ammunition, accouterments, equipment, clothing, or other property issued for use in the military service, shall be pun- ished as a court-martial may direct." MILITARY OFFENSES 63 This article applies only to enlisted men. " Accouterments applies in the military sense to those parts of the soldier's equipment which are issued by the Ordnance Department ... in connection with his arms and ammuni- tion, such, for example, as belts and cartridge pouches. (Pigest, p. 1084.) Clothing includes all articles of clothing whether issued under a clothing allowance or otherwise, for example, overcoats and sweaters as now issued are articles of clothing. That the property sold, disposed of, lost, or injured was issued to someone other than the accused is immaterial; the article applies to any property issued for use in the mili- tary service." (M.C.M., par. 434.) 49. Drunk on Duty. The 85th Article of War-is important. It provides : " Art. 85. Drunk on duty. — Any officer who is found drunk on duty shall, if the offense be committed in time of war, be dis- missed from the service and suffer such other punishment as a court- martial may direct; and if the offense be committed in time of peace, he shall be punished as a court-martial may direct. Any person subject to military law, except an officer, who is found drunk on duty shall be punished as a court-martial may direct." It makes no difference whether the accused became drunk before or after he went on duty, as long as he is drunk at some time while he is on duty. " Any intoxication which is suf- ficient to sensibly inipair the rational and full exercise of the mental and physical faculties is drunkenness within the mean- ing, of the article. (Digest, p. 540.) " (M.C.M., par. 435.) 50. Misbehavior of Sentinel. The 86th Article of War is also important. It provides: " Akt. 86. Misbehavior or sentinel. — Any sentinel who is found drunk or sleeping upon his post, or who leaves it before he is regularly relieved, shall, if the offense be committed in time of war, suffer death or such other punishment as a court-martial may 64 MILITARY LAW direct; and if the offense be committed in time of peace, he shall suffer any punishment, except death, that a court-martial may direct." It will be noticed that three offenses are denounced by this article. The offense is a very serious one, especially when cominitted in time of war, for upon the watchfulness of the sentinels depends the security of the command. A watchman is not a sentinel within the meaning of the article. OVI.C.M., par. 436.) 51. Personal Interest in the Sale of Provisions. The 87th Article of War provides as follows : " Art. 87. Personal interest in sale of provisions. — Any officer commanding in any garrison, fort, barracks, camp, or other place where troops of the United States may be serving who, for his private advantage, lays any duty or imposition upon or is interested in the sale of any victuals or other necessaries of life brought into such garrison, fort, barracks, camp, or other place for the use of the troops, shall be dismissed from the service and suffer such other punishment as a court-martial may direct." This article applies to commanding officei's only. 62. Intimidation of Persons Bringing Provisions. The 88th Article of War provides: " Art. 88. Intimidation or persons bringing provisions. — Any person subject to military law who abuses, intimidates, does violence to, or wrongfully interferes with any person bringing pro- visions, supplies, or other necessaries to the camp, garrison, or quarters of the forces of the United States shall suffer such punish- ment as a court-martial may direct." 53. Offenses against Good Order. The 89th Article of War provides: "Art. 89. Good order to be maintained and wrongs REDRESSED. — All pcisons subjcct to military law are to behave themselves orderly in quarters, garrison, camp, and on the march; MILITARY OFFENSES 65 and any person subject to military law who commits any waste or spoil, or willfully destroys any property whatsoever (unless by order of his commanding officer), or commits any kind of depredation or riot, shall be punished as a court-martial may direct. Any com- manding officer who, upon coniplaint made to him, refuses oromits to see reparation made to the party injured, in so far as the offender's pay shall go toward such reparation, as provided for, in article one hundred and five, shall be dismissed from the service, or otherwise punished, as a court-martial may direct." It will be noticed that the first part of the article applies to all persons subject to military law; the second applies to commanding ofiicers only. (M.C.M., par. 439.) 54. Provoking Speeches or Gestures. The 90th Article of War provides : " Aht. 90. Provoking speeches oe gestures. — No person subject to military law shall use any reproachful or provoking speeches or gestures to another; and any person subject to military law who offends against the provisions of this article shall be pun- ished as a court-martial may direct." " The article is intended to prevent what frequently are the first steps toward quarrels, fights, or serious offenses." (M.C.M., par. 440.) 55. Dueling. The 91st Article of War provides: " Art. 91. Dueling. — Any person subject to military law who fights or promotes or is concerned in or connives at fighting a duel, or who having knowledge of a challenge sent or about to be sent fails to report the fact promptly to the proper authority shall, if an officer, be dismissed from the service or suffer such- other punish- ment as a court-martial may direct; and if any other person subject to military law, shall suffer such punishment as a court-martial may direct." These offenses are to-day of infrequent occurrence. (M.C.M., par, 441.) 66 MILITARY LAW 56. Murder — Rape. The 92d Article of War provides: " Akt. 92. Murder — Rape. — Any person subject to military law who commits inurder or rape shall suffer death or imprisonment for life, as a court-^martial may direct; but no person shall be tried by court-martial for murder or rape committed within the geo- graphical Umits of the States of the Union and the District of ■ Columbia in time of peace." • " Murder is the unlawful killing of a human being with malice aforethought. (Federal Penal Code, 1910, sec. 273). . . . Rape is the having of unlawful, carnal knowledge of a woman by force and without her consent." (M.C.M., par. 442.) 57. Various Crimes. The 93d Article of War is important. It provides: " Art. 93. Various crimes. — Any person subject to military law who commits manslaughter, mayhem, arson, burglary, robbery^ larceny, embezzlement, perjury, assault with intent to commit any felony, or assault with intent to do bodily harm, shall be punished as a court-martial may direct.'' " Manslaughter is unlawful homicide without malice afore- thought. . . . " Mayhem, at common law, is ' a hurt of any part of a man's body whereby he is rendered less able, in fighting, either to defend himself or to annoy his adversary.' . . . " Arson, at common law, is the malicious burning of another's house. ... " Burglary, at common law, is the breaking and entering, in the night, of another's dwelling house, with intent to com- mit a felony therein. ... " Larceny, at common law, is the taking and removing, by trespass, of personal property which the trespasser knows to belong either generally or specially to, another, with the felonious intent to deprive him of his ownership therein. , ... MILITARY OFFENSES 67 " Robbery, at common law, is the taking, with intent to steal, of the personal property of another, from his person or in his presence, against his will, by violence or intimida- tion. ... " Embezzlement is a fraudulent appropriation of anbther's property, by a person to whom it has been entrusted or into whose hands it has lawfully come. . . . Embezzlement is not a common law but a statutory offense. . . . " Perjury, at common law, is the willful and corrupt giv- ing, upon a lawful oath, or in any form allowed by law to be substituted for an oath, in a judicial proceeding or course of justice, of false testimony material to the issue or matter of inquiry. ... " An assault with intent to commit any felony is an assault made with a specific iiitfent to murder, rape, rob, or to com- mit manslaughter, sodomy, or other common-law felony. An assault is an attempt or offer with unlawful force or vio- lence to ;do a corporal hurt to another. . . . " An assault with intent to do bodily harm is an assault aggravated by the specific present intent to do bodily harm to the person assaulted by means of the force employed." (JM.C.M., par. 443.) 58. Frauds against the Government. The important 94th Article of War provides as follows: " Art. 94. Frauds against the Government. — Any person subject to military law who makes or causes to be made any dma against the United States or any officer thereof, knowing such claim to be false or fraudulent; or " Who presents or causes to be presented to any person in the civil or military service thereof, for approval or payment, any claim against the United States, or any officer thereof, knowing such claim to be false or fraudulent; or "Who enters into any agreement or conspiracy to defraud the United States by obtaining, or aiding others to obtain, the allowance or payment of any false or fraudulent claim; or 68 MILITARY LAW " 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 pro- cures, or advises the making or use of, any writing or other paper knowing the same to contain any false or fraudulent statements; or " 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 " 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 pro- cures, or advises the forging or counterfeiting of any signature upoii any writing or other paper, or uses, or procures, or advises the use of any such signature, knowing the same to be forged or counterfeited; or " Who, having charge, possession, custody, or control of any money or other property of the United States, furnished or intended for the military service thereof, knowingly delivers, or causes to be delivered, to any person having authority to receive the same, any amount thereof less than that for which he receives a certificate or receipt; or " Who, being authorized to make or deliver any paper certifying the receipt of any property of the United States furnished or in- tended for the military service thereof, makes or dehvers to any person such writing, without having full knowledge of the truth of the statements therein contained and with intent to defraud the United States; or " Who steals, embezzles, knowingly and willfully misappropriates, 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 " Who knowingly purchases or receives in pledge for any obliga- tion or indebtedness from any soldier, officer, or other person who is a part of or employed in said forces or service, any ordnance, arms, equipment, ammunition, clothing, subsistence stores, or other MILITARY OFFENSES 69 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 imprison- ment, 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 offenses aforesaid while in the military service of' the United States, receives his discharge or is dismissed from the serv- ice, 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." 59. Conduct unbecoming an Officer and Gentleman. The very important 95th Article of War provides as follows : " Aht. 95. Conduct unbecoming an officer and gentleman. — Any officer or cadet who is convicted of conduct unbecoming an ofiicer and a gentleman shaU be dismissed from the service." " The conduct contemplated is action or behavior in an official capacity which, in dishonoring or disgracing the in- dividual as an officer, seriously compromises his character and standing as a gentleman, or action or behavior in an un- official or private capacity which, in dishonoring or disgracing - the individual personally as a gentleman, seriously compro- mises his position as an officer and exhibits him as morally unworthy to remain a member of the honorable profession of arms. (Winthrop, p. 1106.) " There are certain moral attributes common to the ideal officer and the perfect gentleman, a lack of which is indicated by acts of dishonesty or unfair dealing; of indecency or in- decorum; of lawlessness, injustice, or cruelty. " Not every one is or can be expected to meet ideal stand- ards or to possess the attributes in the exact degree demanded by the standards of his own time; but there is a limit of tol- erance below which the individual standards in these respects of an officer or cadet can not fall without his being morally unfit to be an officer or cadet or to be considered a gentleman. 70 MILITARY LAW " This article contemplates such conduct by an officer or cadet which, taking all the circumstances into consideration, satisfactorily shows such moral unfitness. " This article includes acts made punishable by any other article of war, provided such acts amount to conduct unbe- coming an officer and a gentleman; thus, an officer who em- bezzles military property violates both this and the preceding article. " Instances of violation of this article are: " Knowingly making a false official statement; dishonor- able neglect to pay debts; opening and reading another's letters; giving a check on a bank where there were no funds to meet it, and without intending that there should be; using insulting or defamatory language to another officer in his presence, or about him to other military persons; being grossly drunk and conspicuously disorderly in a public place; public association with notorious prostitutes; cruel treat- ment of soldiers; committing or attempting to commit a crime involving moral turpitude; failing without a good cause to support his family. " For other instances, see Digest, pages 140-143, and Win- throp, pages 1107-1115. " This article applies to officers and cadets only." (M.C.M., par. 445.) 60. General Article. The 96th Article of War is extremely important. It provides as follows : " Art. 96. General article. — Though not mentioned in these articles, aU disorders and neglects to the prejudice of good order and military discipline, all conduct of a nature to bring discredit upon the military service, and all crimes or offenses not capital, of which persons subject to military law may be guUty, shall be taken cogni- zance of by a general or special or summary court-martial, according to the nature and degree of the offense, and punished at the discre- tion of such court." MILITARY OFFENSES 71 The article denounces three classes of ofEenses and is ap- plicable to all persons subject to military law. Whenever an offense can be charged under any of the pre- ceding articles, it should be so charged. This article is a catch-all, intended to cover all offenses punishable by court- martial which are not denounced specifically in other articles. It happens not infrequently that a man is accused of a viola- tion of one of the other articles, but the prosecution is unable to prove one of the elements constituting the offense charged. In such case, if the accused is proved guilty of a violation of the 96th article he may be found guilty of violating this article and sentenced accordingly. CHAPTER ly MISCELLANEOUS PROVISIONS OF THE ARTICLES OF WAR The following are the Articles of War which have not been mentioned in the preceding chapters. " Akt. 20. Continuances. ■ — A court-martial may, for reason- able cause, grant a continuance to either party for such time and as often as may appear to be just. " Art. 32. Contempts. — A court-martial may punish at dis- cretion, subject to the limitations contained in Article fourteen, any person who uses any menacing words, signs, or gestures in its pres- ence, or who disturbs its proceedings by any riot or disorder. " Aet. 33. Records — General courts-martial. — Each general court-martial shall keep a separate record of its proceedings in the trial of each case brought before it, and such record shall be authenticated by the signature of the president and the judge advocate; but in case the record can not be authenticated by the judge advocate, by reason of his death, disability, or absence, it shall be signed by the president and an assistant judge advocate, if any; and if there be no assistant judge advocate, or in case of his death, disability, or absence, then by the president and one other member of the court. " Art. 34. Records — Special and summary courts-maetlai. — Each special court-martial and each summary court-martial shall keep a record of its proceedings, separate for each case, which record shall contain such matter and be authenticated in such manner as may be required by regulations which the President may from time to time prescribe. " Art. 35. Disposition of records — General courts- martial. — The judge advocate of each general court-martial shall, with such expedition as circumstances may permit, forward to the 72 MISCELLANEOUS PROVISIONS 73 appointing authority or to his successor in command the original record of the proceedings of such court in the trial of each case. All records of such proceedings shall, after having been finally acted upon, be transmitted to the Judge Advocate General of the Army. " Akt. 36. Disposition of eecords — Special and summary conRTS-MAETiAL. — After having been acted upon by the officer appointing the court, or by the officer commanding for the time being, the record of each trial by special court-martial and^a report' of each trial by summary court-martial shall be transmitted to such general headquarters as the President may designate in regulations, there to be filed in the office of the judge advocate. When no longer of use, records of special and summary courts-martial may be destroyed. " Art. 37. Ibeegularities — Effect of. — The proceedings of a court-martial shall not be held invalid, nor the findings or sen- tence disapproved, in any case on the ground of improper admission or rejection of evidence or for any error as to any matter of pleading or procedure unless in the opinion of the reviewing or confirming authority, after an examination of the entire proceedings, it shall appear that the error complained of has injuriously affected the substantial rights of an accused: Provided, That the act or omission upon which the accused has been tried constitutes an offense de- nounced and made punishable by one or more of these articles: Provided further, That the omission of the words ' hard labor ' in any sentence of a court-martial adjudging imprisonment or co'n- finemBnt shall not be construed as depriving the authorities execut- ing such sentence of imprisonment or confinement of the powCT.to require hard labor as a part of the punishment in any case where it is authorized by the Executive order prescribing maximum punish- ments. "Abt. 106.' Arrest of deserters by civil officials. — It shall be lawful for any civil officer having authority under the laws of the United States, or of any State, Territory, District, or posses- sion of the United States, to arrest offenders, surrnnarUy to arrest a deserter from the military service of the United States and deliver him into the custody of the military authorities of the United States. 74 MILITARY LAW " Abt. 107. Soldiers to make good time lost. — Every soldier who in an existing or subsequent enlistment deserts the service of the United States or without proper authority absents himself from his organization, station, or duty for more than one day, or who is confined for more than one day under sentence, or while awaiting trial and disposition of his case, if the trial results in conviction, or through the intemperate use of drugs or alcoholic liquor, or through disease or injury the result of his own misconduct, renders himself unable for more than one day to perform duty, shall be liable to serve, after his return to a full-duty status, for such period as shall, with the time he may have served prior to such desertion, unau- thorized absence, confinement, or inability to perform duty, amount to the full term- of that part of his enlistment period which he is required to serve with his organization before being furloughed to the Army reserve. " Art. 108. Soldiers — Separation prom the service. — No enlisted man, lawfully inducted into the military service of the United States, shall be discharged from said service without a cer- tificate of discharge, signed by a field ofiicer of the regiment or other organization to which the enlisted man belongs or by the command- ing officer when no such field oflBcer is present; and no enlisted man shall be discharged from said service 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. " Art. 109. Oath of enlistment. — At the time of his enlist- ment every soldier shall take the following oath or affirmation: ' I, -^ , do solemnly swear (or affirm) that I will bear true faith and allegiance to the United States of America; that I wiU serve them honestly 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 or affirmation may be taken before any officer. " Art. 110. Certain articles to be read and explained. — Articles one, two, and twenty-nine, fifty-four to ninety-six, inclusive, and one hundred and four to one hundred and nine, inclusive, shall MISCELLANEOUS PROVISIONS 75 be read and explained to every soldier at the time of his enlistment or muster in, or within six days, thereafter, and shall be read and explained once every six months to the soldiers of every garrison, regiment, or company in the service of the United States. " Art. 111. Copt of eecord of trial. — Every person tried by a general court-martial shall, on demand therefor, made by himself or by any person in his behalf, be entitled to a copy of the record of the trial. " Art. 112. Effects of deceased persons — Disposition of. — In case of the death of any person subject to military law, the commanding officer of the place or command will permit the legal representative or widow of the deceased, if present, to take posses- sion of all his effects then in camp or quarters, and if no legal repre- sentative or widow be present, the commanding officer shall direct a summary court to secure all such effects; and said summary court shall have authority to collect and receive any debts due decedent's estate by local debtors; and as soon as practicable after the collec- tion of such effects said summary court shall transmit such effects, and any money collected, through the Quartermaster Department, at Government expense, to the widow or legal representative of the deceased, if such be found by said court, or to his son, daughter, father, mother, brother, or sister, in the order named, if such be found by said court, or to the beneficiary named by the deceased, if such be found by said court, and such court shall thereupon make to the War Department a fuU report of its transactions; but if there be none of the persons hereinabove named, or such persons or their addresses are not known to, or readily ascertainable by, said court, and the court shall so find, said summary court shall have authority to convert into cash, by public or private sale, not earlier than thirty days after the death of the deceased, all effects of the deceased, except sabers, insignia, decorations, medals, watches, trinkets, manuscripts, and other articles valuable chiefly as keepsakes; and as soon as practicable after converting such effects into caish said summary court shall deposit with the proper officer, to be designated in regulations, any cash belonging to decedent's estate, and shall transmit a receipt for such deposits, any will or other papers of value belonging to the deceased, any sabers, insignia, decorations, medals. 76 MILITARY LAW watches, trinkets, manuscripts, and other articles valuable chiefly as keepsakes, together with an inventory of the effects secured by said summary court, and a fuU account of its transactions to the War Department for transmission to the Auditor for the War De- partment for action as authorized by law in the settlement of the accounts of deceased officers or enlisted men of the Army. " The provisions of this article shall be apphcable to inmates of the United States Soldiers' Home who die in any United States mUitary hospital outside of the District of Columbia where sent frotn the home for treatment. [A.W., 112, is here given as amended by Act of July 9, 1918.] " Art. 113. Inquests. — When at any post, fort, camp, or other place garrisoned by the military forces of the United States and under the exclusive jurisdiction of the United States, any person shall have been found dead under circumstances which appear to require investigation, the commanding officer wiU designate and direct a summary court-martial to investigate the circumstances attending the death; and, for this purpose, such summary court- martial shall have power to summon witnesses and examine them upon oath or aflSrmation. He shall promptly transmit to the post or other commander a report of his investigation and of his findings as to the cause of the death. "Art. 114. Authority to administer oaths. — Any judge advocate or acting judge advocate, the president of a general or special court-martial, any summary court-martial, the judge advo- cate or any assistant judge advocate of a general or special court- martial, the president or the recorder of a court of inquiry or of a military board, any officer designated to take a deposition, any officer detailed to conduct an investigation, and the adjutant of any command shall have power to administer oaths for the purposes of the administration of military justice and for other purposes' of military administration; and in foreign places where the Army may be serving shall have the general powers of a notary pubhc or of a consul of the United States in the administration of oaths, the exe- cution and acknowledgment of legal instruments, the attestation of documents, and all other forms of notarial acts to be executed by persons subject to military law. MISCELLANEOUS PROVISIONS 77 " Akt. 115. Appointment of repokters and interpreters. — Under such regulations as the Secretary of War may from time to time prescribe, the president of a court-martial or military commis- sion, or a court of inquiry shall have power to appoint a reporter, who shall record the proceedings of and testimony taken before such court or commission and may set down the same, in the first in- stance, in shorthand. Under Uke regulations the president of a court-martial or military commission, or court of inquiry, or a sum- mary court," may appoint an interpreter, who shall interpret for the court or commission. "Art. 116. Powers op assistant judge advocates. — An assistant judge advocate of a general court-martial shall be com- petent to perform any duty devolved by law, regulation, or the cus- tom of the service upon the judge advocate of the court. " Art. 117. Removal of civil suits. — When any civil or criminal prosecution is commenced in any court of. a State against any officer, soldier, or other person in the miUtary service of the United States on account of any act done under color of his office or status, or in respect to which he claims any right, title, or authority under any law of the United States respecting the military forces thereof, or under the law of war, such suit or prosecution may at any time before the trial or final hearing thereof be removed for trial into the district court of the United States in the district where the same is pending in the manner prescribed in section thirty-three of the Act entitled ' An Act to codify, revise, and amend the laws re- lating to the judiciary,' approved March three, nineteen hundred and eleven, and the cause shall thereupon be entered on the docket of said district court and shall proceed therein as if the cause had been originally commenced in said district court and the same pro- ceedings had been taken in such suit or prosecution in said district court as shall have been had therein in said State court prior to its removal, and said district court shall have full power to hear and determine said cause. " Art. 118. Officers, separation prom service. -^ 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 ofiicer shall be dismissed except in pursuance of the 78 MILITARY LAW sentence of a court-martial or in mitigation thereof; but the Presi- dent may at any time drop from the rolls of the Army any officer who has been absent from duty three months without leave or who has been absent in confinement in a prison or penitentiary for three months after final conviction by a court of competent jurisdiction. " Aht. 119. Rank and precedence among Regulars, Militia, AND Volunteers. — That in time of war or public danger, when two or more officers of the same grade are on duty in the same field, department, or command, or of organizations thereof, the President may assign the command of the forces of such field, department, or command, or of any organization thereof, without regard to senior- ity of rank in the same grade. In the absence of such assignment by the President, officers of the same grade shall rank and have pre- cedence in the following order, without regard to date of rank or commission as between officers of different classes, namely: First, officers of the Regular Army and officers of the Marine Corps de- tached for service with the Army by order of the_President; second, officers of forces drafted or called into the service of the United States; and, third, officers of the volunteer forces: Provided, That officers of the Regular Army holding commissions in forces drafted or called into the service of the United States or in the volunteer forces shall rank and have precedence under said commissions as if they were commissions in the Regular Army; the rank of officers of the Regular Army under commissions in the National Guard as such shall not, for the purposes of this article, be held to antedate the acceptance of such officers into the service of the United States under said commissions. " Art. 120. Command when different corps or commands HAPPEN to join. — When different corps or commands of the mili- tary forces of the United States happen to join or do duty together the officer highest in rank of the line of the Regular Army, Marine Corps, forces drafted or called into the service of the United States, or Volunteers, there on duty, shall, subject to the provisions of the last preceding article, command the T^hole and give orders for what is needful in the service, unless otherwise directed by the President. "Art. 121. Complaints of wrongs. — Any officer or soldier who believes himself wronged by his commanding officer, and, upon MISCELLANEOUS PROVISIONS 79 due application to such commander, is refused redress, may com- plain to the general commanding in the locality where the oflScer against whom the complaint is made is stationed. The general shall examine into said complaint and take proper measures for redressing the wrong complained of; and he shall, as soon as pos- sible, transmit to the Department of War a true sta'tement of such complaint, with the proceedings had thereon." CHAPTER V THE SELECTIVE SERVICE LAW I. Selective Service Law An Act To authorize the President to increase temporarily the MiUtary Establishment of the United States. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That in view of the existing emergency, which demands the raising of troops in addition to those now available, the President be, and he is hereby, author- ized — First. Immediately to raise, organize, officer, and equip all or such number of increments of the Regular Army provided by the national defense Act approved June third, nineteen hundred and sixteen, or such parts thereof as he may deem necessary; to raise all organizations of the Regular Army, including those added by such increments, to the maximum enlisted strength authorized by law. Vacancies in the Regular Army created or caused by the addition of increments as herein authorized which can not be filled by promotion may be filled by temporary appointment for the period of the emer- gency or until replaced by permanent appointments or by provi- sional appointments made under the provisions of section twenty- three of the national defense Act, approved June third, nineteen hundred and sixteen, and hereafter provisional appointments under such section may be terminated whenever it is determined, in the manner prescribed by the President, that the ofl[icer has not the suitability and fitness requisite for permanent appointment. Second. To draft into the military service of the United States, organize, and officer, in accordance with the provisions of section one hundred and eleven of said national defense Act, so far as the provisions of said section may be applicable and not inconsistent with the terms of this Act, any or aU members of the National Guard and of the National Guard Reserves, and said members so m THE SELECTIVE SERVICE LAW 81 drafted into the military service of the United States shall serve therein for the period of the existing emergency unless sooner dis- charged: Provided, That when so drafted, the organizations or units of the National Guard shall, so far as practicable, retain the State designations of their respective organizations. Third. To raise by draft as herein provided, organize and equip an additional force of five hiandred thousand enlisted men, or such part or parts thereof as he may at any time deem necessary, and, to provide the necessary officers, line and staff, for said force and for organizations of the other forces hereby authorized, or by combin- ing organizations of said other forces, by ordering members of the Officers' Reserve Corps to temporary duty in accordance with ''the provisions of section thirty-eight of the national defense Act ap- proved June third, nineteen hundred and sixteen; by appointment from the Regular Army, the Officers' Reserve Corps, from those duly qualified and registered pursuant to section twenty-three of the act of Congress approved January twenty-first, nineteen hun- dred and three (Thirty-second Statutes at Large, page seven hundred and seventy-five), from the members of the National Guard drafted into the service of the United States, from those who have been graduated from educational institutions at which military instruc- tion is compulsory, or from those who have had honorable service in the Regular Army, the National Guard,, or in the volunteer forces, or from the country at large; by assigning retired officers of the Regular Army to active duty with such force with their rank on the retired list and the full pay and allowances of their grade; or by the appointment of retired officers and enhsted men, active or re- tired, of the Regular Army as commissioned officers in such forces: Provided, That the organization of said force shall be the same as that of the corresponding organizations of the Regular Army: Provided further. That the President is authorized to increase or decrease the number of organizations prescribed for the typical brigades, divisions, or army corps of the Regular Army, and to prescribe such new and different organizations and personnel for army corps, divisions, brigades, regiments, battalions, squadrons, companies, troops, and batteries as the efficiency of the service may require: Provided further, That the number of organizations in a regiment shall not be increased nor shaU the number of regents 82 MILITARY LAW be decreased: Provided further, That the President in his discretion may organize, officer, and equip for each Infantry and Cavalry brigade three machine-gun companies, and for each Infantry and Cavalry division four machine-gun companies, all in addition tp the machine-gun companies comprised in organizations included in such brigades and divisions: Provided further, That the President in his discretion may organize for each division one armored motor-car machine-gun company. The machine-gun companies organized under this section shall consist of such commissioned and enhsted personnel and be equipped in such manner as the President may prescribe: And provided further. That officers with rank not above that of colonel shaU be appointed by the President alone, and offi- cers above that grade by the President by and with the advice and consent of the Senate : Provided further, That the President may in his discretion recommission in the Coast Guard persons who have heretofore held commissions in the Revenue-Cutter Service or the Coast Guard and have left the service honorably, after ascertaining that they are qualified for service physically, morally, and as to age and military fitness. Fourth. The President is further authorized, in his discretion and at such time as he may determine, to raise and begin the training of an additional force of five hundred thousand men, organized, offi- cered, and equipped, as provided for the force first mentioned in the preceding paragraph of this section. Fifth. To raise by draft, organize, equip, and officer, as provided in the third paragraph of this section, in addition to and for each of the above forces, such recruit training units as he may deem neces- sary for the maintenance of such forces at the maximum strength. Sixth. To raise, organize, officer, and maintain during the emer- gency such number of ammunition batteries and battalions, depot batteries and battalions, and such artillery parks with such numbers and grades of personnel as he may deem necessary. Such organiza- tions shall be officered in the manner provided in the third para- graph of this section, and enUsted men may be assigned to said organization from any of the forces herein provided for or raised by selective draft as by this Act provided. Seventh. The President is further authorized to raise and main- tain by voluntary enlistment, to organize, and equip, not to exceed THE SELECTIVE SERVICE LAW 83 four infantry divisions, the officers of which shall be selected in the manner provided by paragraph three of section one of this act: Provided, That the organization of said force shall be the same as that of the corresponding organization of the Regular Army: And provided further, That there shall be no enhstments in said force of men under twenty-five years of age at time of enlisting: And pro- vided further. That no such volunteer force shall be accepted in any unit smaller than a division. Sec. 2. That the enlisted men required to raise and maintain the organizations of the Regular Army and to complete and maintain the organizations embodying the members of the National Guard drafted into the service of the United States, at the maximum legal strength as by this Act provided, shall be raised by voluntary en- listment, or if and whenever the President decides that they can not effectually be so raised or maintained, then by selective draft; and aU other forces hereby authorized, except as provided in the seventh paragraph of section one, shall be raised and maintained by selective draft exclusively; but this provision shall not prevent the transfer to any force of training cadres from other forces. Such draft as herein provided shall be based upon liability to military service of all male citizens, or male person not alien enemies who have declared their intention to become citizens between the ages of twenty-one and thirty years, both inclusive, and shall take place and be main- tained under such regulations as the President may prescribe not inconsistent with the terms of this Act. Quotas for the several States, Territories, and the District of Columbia, or subdivisions thereof, shall be determined in proportion to the population thereof, and credit shall be given to any State, Territory, District, or sub- division thereof for the number of men who were in the military service of the United States as members of the National Guard on April first, nineteen hundred and seventeen, or who have since said date entered the military service of the United States from any such State, Territory, District, or subdivision, either as members of the Regular Army or the National Guard. All persons drafted into the service of the United States and all officers accepting commissions in the forces herein provided for shall, from the date of said draft or acceptance, be subject to the laws and regulations governing the Regular Army, except as to promotions, so far as such laws and 84 MILITARY LAW regulations are applicable to persons whose permanent retention in the ndhtary service on the active or retired list is not contemplated by existing law, and those drafted shall be required to serve for the period of the existing emergency unless sooner discharged: Pro- vided, That the President is authorized to raise and maintain by voluntary enlistment or draft, as herein provided, special and techni- cal troops as he may deem necessary, and to embody them into organizations and to officer them as provided in the third paragraph of section pne and section nine of this Act. Organizations of the forces herein provided for, except the Regular Army and the divi- sions authorized in the seventh paragraph of section one, shall, as far as the interests of the service permit; be composed of men who come, and of officers who are appointed from, the same State or locality. Sec. 3. No bounty shall be paid to induce any person to enlist in the military service of the United States; and no person liable to military service shall hereafter be permitted or allowed to furnish a substitute for such service; nor shall any substitute be received, enlisted, or enrolled in the military service of the United States; and no such person shall be permitted to escape such service or to be dis- charged therefrom prior to the expiration of his term of service by the payment of money or any other valuable thing whatsoever as consideration for his release from military service or liability thereto. Sec. 4. That the Vice President of the United States, the officers, legislative, executive, and judicial, of the United States and of the several States, Territories, and the District of Columbia, regular or duly ordained ministers of religion, students who at the time of the approval of this Act are preparing for the ministry in recognized theological or divinity schools, and all persons in the military and naval service of the United States shall be exempt from the selective draft herein jprescribed; and nothing in this Act contained shall be construed to require or compel any person to serve in any of the forces herein provided for who is found to be a member of any well- recognized religious sect or organization at present organized and existing and whose existing creed or principles forbid its members to participate in war in any form and whose religious convictions are against war or participation therein in accordance with the creed or principles of said rehgious organizations, but no person so ex- empted shall be exempted from service in any capacity that the THE SELECTIVE SERVICE LAW 85 President shall declare to be noncombatant; and the President is hereby authorized to exclude or discharge from said selective draft and from the draft under the second paragraph of section one hereof, or to draft for partial military service only from those liable to draft as in this, Act provided, persons of the following classes: County arid municipal officials; customhouse clerks; persons employed by the United States in the transmission of the mails; artificers and workmen employed in the armories, arsenals, and navy yards of the United States, and such other person employed in the service of the United States as the President may designate; pilots; mariners actually employed in the sea service of any citizen or merchant within the United States; persons engaged in industries, including agriculture, found to be necessary to the maintenance of the Mili- tary Estabhshment or the effective operation of the military forces or the maintenance of national interest during the emergency; those in a status with respect to persons dependent upon them for support which renders their exclusion or discharge advisable; and those found to be physically or morally deficient. No exemption or exclu- sion shall continue when a cause therefor no longer exists: Provided, That notwithstanding the exemptions enumerated herein, each State, Territory, and the District of Columbia shall be required to supply its quota in the proportion that its population bears to the total population of the United States. The President is hereby authorized, in his discretion, to create and establish throughout the several States and subdivisions thereof and in the Territories and the District of Columbia local boards, and where, in his discretion, practicable and desirable, there shall be created and established one such local board in each county or similar subdivision in each State, and one for approximately each thirty thousand of population in each city of thirty thousand popu- lation or over, according to the last census taken or estimates fur- nished by the Bureau of Census of the Department of Commerce. Such boards shall be appointed by the President, and shall consist of three or more members, none of whom shall be connected with the Military Establishment, to be chosen from among the local authori- ties of such subdivisions or from other citizens residing in the sub- division or area in which the respective boards will ha^se jurisdiction under the rules and regulations prescribed by the President.. Such 86 MILITARY LAW boards shall have power within their respective jurisdictions to hear and determine, subject to review as hereinafter provided, all ques- tions of exemption under this Act, and all questions of or claims for including or discharging individuals or classes of individuals from the selective draft, which shall be made under rules and regulations prescribed by the President, except any and every question or claim for including or excluding or discharging persons or classes of persons from the selective draft under the provisions of this Act authorizing the President to exclude or discharge from the selective draft " Per- sons engaged in industries, including agriculture, found to be neces- sary to the maintenance of the Military Estabhshment, or the execu- tive operation of the military forces, or the maintenance of national ihterest during the emergency." The President is hereby authorized to estabHsh additional boards, one in each Federal judicial district of the United States, consisting of such number of citizens, not connected with the Military Estab- lishment, as the President may determine, who shall be appointed by the President. The President is hereby authorized, in his dis- cretion, to establish more than one such board in any Federal judicial district of the United States, or to establish one such board having jurisdiction of an area extending into more than one Federal judicial district. Such district boards shall review on appeal and affirm, modify, or reverse any decision of any local board having jurisdiction in the area in which any such district board has jurisdiction under the rules and regulations prescribed by the President. Such district boards shall have exclusive original jurisdiction within their respective areas to hear and determine all questions or claims for including or excluding or discharging persons or classes of persons from the selective draft, under the provisions of this Act, not included within the original jurisdiction of such local boards. The decisions of such district boards shall be final except that, in accordance with such rules and regulations as the President may prescribe, he may affirm, modify, or reverse any such decision. Any vacancy in any such local board or district board shall be filled by the President, and any member of any such local board or district board may be removed and another appointed in his place by the President, whenever he considers that the interest of the Nation demands it. THE SELECTIVE SERVICE LAW 87 The President shall make rules and regulations governing the organization and procedure of such local boards and district boards, and providing for and governing appeals from such local boards to such district boards, and reviews of the decisions of any local board by the district board having jurisdiction, and determining and pre- scribing the several areas in which the respective local boards and district boards shall have jurisdiction, and all other rules and regu- lations necessary to carry out the terms and provisions of this sec- tion, and shall provide for. the issuance of certificates of exemption, or partial or limited exemptions, and for a system to exclude and discharge individuals from selective draft. Sec. 5. That all male persons between the ages of twenty-one and thirty, both inclusive, shall be subject to registration in accord- ance with regulations to be prescribed by the President; and upon proclamation by the President or other public notice given by him or by his direction stating the time and place of such registration it shall be the duty of all persons of the designated ages, except officers and enlisted men of the Regular Army, the Navy, and the National Guard and Naval Militia while in the service of the United States, to present themselves for and submit to registration under the pro- visions of this Act; and every such person shall be deemed to have notice of the requirements of this Act upon the publication of said proclamation or other notice as aforesaid given by the President or by his direction; and any person who shall willfully fail or refuse to present himself for registration, or to submit thereto as herein pro- vided, shall be guilty of a misdemeanor and shall, upon conviction in the district court of the United States having jurisdiction thereof, be punished by imprisonment for not more than one year, and shall thereupon be duly registered: Provided, That in the call of the docket precedence shall be given, in courts trying the same, to the trial of criminal proceedings under this Act: Provided further, That persons shall be subject to registration as herein provided who shall have attained their twenty-first birthday and who shall not have attained their thirty-first birthday on or before the day set for the registration, and all persons so registered shall be and remain sub- ject to draft into the forces hereby authorized, unless exempted or excused therefrom as in this Act provided: Provided further, That in the case of temporary absence from actual place of legal residence of any person liable to registration as provided herein, such registra- 88 MILITARY LAW tion may be made by mail under regulations to be prescribed by the President. Sec 6. That the President is hereby authorized to utilize the service of any or aU departments and any or all officers or agents of the United States and of the several States, Territories, and the District of Columbia, and subdivisions thereof, in the execution of this Act, and all officers and agdnts of the United States and of the several States, Territories, and subdivisions thereof, and of the District of Columbia, and all persons designated or appointed under regulations prescribed by the President, whether such appointments are made by the President himself or by the governor or other officer of any State or Territory, to perform any duty in the execution of this Act, are hereby required to perform such duty as the President shall order or direct, and all such officers and agents and persons so designated or appointed shall hereby have full authority for all acts done by them in the execution of this Act by the direction of the President. Correspondence in the execution of this Act may be carried in penalty envelopes bearing the frank of the War Depart- ment. Any person charged as herein provided with the duty of carrying into effect any of the provisions of this Act or the regula- . tions made or directions given thereunder who shall fail or neglect to perform such duty; and any person charged with such duty or hav- ing and exercising any authority under said Act, regulations, or directions, who shall knowingly make or be a party to the making of any false or incorrect registration, physical examination, exemption, enlistment, enrollment, or muster; and any person who shall make or be a party to the making of any false statement or certificate as to the fitness or liability of himself or any other person for service under the provisions of this Act, or regulations made by the Presi- dent thereunder, or otherwise evades or aids another to evade the requirements of this Act or of said regulations, or who, in any man- ner, shall fail or neglect fuUy to perform any duty required of him in the execution of this Act, shall, if not subject to military law, be guilty of a misdemeanor, and upon conviction in the district court of the United States having jurisdiction thereof, be punished by imprisonment for not more than one year, or, if subject to military law, shall be tried by court-martial and suffer such punishoient as a court-martial may direct. THE SELECTIVE SERVICE LAW 89 Sec. 7. That the qualifications and conditions for voluntary enlistment as herein provided shall be the same as those prescribed by existing law for enlistments in the Regular Army, except that recruits must be between the ages of eighteen and forty years, both inclusive, at the time of their enlistment; and such enlistments shall be for the period of the emergency unless sooner discharged. All enlistments, including those in the Regular Army Reserve; which are in force on the date of the approval of this Act and which would terminate during the emergency shall continue in force during the emergency unless sooner discharged; but nothing herein contained shall be construed to shorten the period of any existing enlistment : Provided, That all persons enlisted or drafted under any of the pro- visions of this Act shall as far as practicable be grouped into units by States and the political subdivisions of the same : Provided further, That all persons who have enlisted since April first, nineteen hun- dred and seventeen, either in the Regular Army or in the National Guard and all persons who have enlisted in the National Guard since June third, nineteen hundred and sixteen, upon their applica- tion, shall be discharged upon the termination of the existing emergency. The President may provide for the discharge of any or all enlisted men whose status with respect to dependents renders such discharge advisable; and he may also authorize the employment on any active duty of retired enlisted men of the Regular Army, either with their rank on the retired list or in higher enlisted grades, and such retired enlisted men shall receive the full pay and allowances of the grades in which they are actively employed. Sec. 8. That the President, by and with the advice and consent of the Senate, is authorized to appoint for the period of the existing emergency such general officers of appropriate grades- as may be necessary for duty with brigades, divisions, and higher units in which the forces provided for herein may be organized by the Presi- dent, and general officers of appropriate grade for the several Coast Artillery districts. In so far as such appointments may be made from any of the forces herein provided for, the appointees may be selected irrespective of the grades held by them in such forces. Vacancies in all grades in the Regular Army resulting from the ap- pointment of officers thereof to higher grades in the forces other 90 MILITARY LAW than the Regular Army herein provided for shall be filled by tem- porary promotions and appointments in the manner prescribed for filling temporary vacancies by section one hundred and fourteen of the national defense Act approved June third, nineteen hundred and sixteen; and oflBcers appointed under the provisions of this Act to higher grades in the forces other than the Regular Army herein provided for shall not vacate their permanent commissions nor be prejudiced in their relative or lineal standing invthe Regular Army. Sec. 9. That the appointments authorized and made as provided by the second, third, fourth, fifth, sixth, and seventh paragraphs of section one aijd by section eight of this Act, and the temporary appointments in the Regular Army authorized by the first para'- graph of section one of this Act, shall be for the period of the emer- gency unless sooner terminated by discharge or otherwise. The President is hereby authorized to discharge any ofiicer from the office held by him under such appointment for any cause which, in judgment of the President, would promote the public service; and the general commanding any division and higher tactical organiza- tion or territorial department is authorized to appoint from time to time military boards of not less than three nor more than five officers of the forces herein provided for to examine into and report upon the capacity, qualification, conduct, and efficiency of any commissioned officer within his command other than officers of the Regular Army • holding permanent or provisional commissions therein. Each mem- ber of such board shall be superior in rank to the officer whose qualifications are to be inquired into, and if the report of such board be adverse to the continuance of any such officer and be ap- proved by the President, such officer shall be discharged from the service at the discretion of the President with one month's pay and allowances. Sec. 10. That aU officers and enUsted men of the forces herein provided for other than the Regular Army shall be in all respects on the same footing as to pay, allowances, and pensions as officers and enlisted men of corresponding grades and length of service in the Regular Army; and commencing June one, nineteen hundred and seventeen, and continuing until the termination of the emergency, aU enlisted men of the Army of the United States in active service whose base pay does not exceed $21 per month shall receive an in- THE SELECTIVE SERVICE LAW 91 crease of $15 per month; those whose base pay is J24, an increase^ of $12 per month; those whose base pay is $30, $36, or $40, an in- crease of $8 per month, and those whose base pay is 145 or more, an, increase ot $6 per month : Provided, That the increases of pay herein authorized shall not enter into the cdmputation of the continuous- service pay. Sec. 11. That all existing restrictions upon the detail, detach- ment, and employment of officers and enlisted men of the Regular Army are hereby suspended for the period of the present emergency. Sec. 12. [This section authorizes the President to make regula- tions governing the prohibition of alcoholic liquors in or near mili- tary camps and to the officers and enlisted men of the Army.] Sec. 13. [This section authorizes the Secretary of War to sup- press houses of ill fame near military camps.] Sec. 14. That aU laws and parts of laws in conflict with the pro- visions of this Act are hereby suspended during the period of this emergency. Approved, May 18, 1917. II. AmJendments and Additions to the Selective Service Law [Public Resolution — No. 29 — 65th Congress.] [S. J. Res. 123.] Joint Resolution Providing for the calling into military service of cer- tain classes of persons registered and liable for military service under the terms of the Act of Congress approved May eighteenth, nineteen hundred and seventeen, entitled " An Act to authorize the President to increase temporarily the Military Establishment of the United ' States." Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That if under any regula- tions heretofore or hereafter prescribed by the President persons registered and liable for military service under the terms of the Act of Congress approved May eighteenth, nineteen hundred and seven- teen, entitled "An Act to authorize the President to increase temporarily the Military Establishment of the United States," are placed in classes for the purpose of determining their relative liability for military service, no provision of said Act shall prevent the Presi- dent from calling for immediate military service under regulations 92 MILITARY LAW heretofore or hereafter prescribed by the President all or part of the persons in any class or classes except those exempt from draft under the provisions of said Act, in proportion to the total number of persons placed in such class or classes in the various subdivisions of the States, Territories, and the District of Columbia designated by the President under the terms of said Act; or from calling into immediate military service persons classed as skilled experts in industry or agriculture, however classified or wherever residing. Approved, May 16, 1918. [Pttblic RESOLtTTioN — No. 30 — 65th Congress.] [S. J. Res. 124.] Joint Resolution Providing for the registration for military service of all male persons citizens of the United States and all male persons residing in the United States who have, since the fifth day of June, nineteen hundred and seventeen, and on or before the day set for the registration by proclamation by the President, attained the age of twenty-one years, in accordance with such rules and regulations as the President may prescribe under the terms of the Act approved May eighteenth, nineteen hundred and seventeen, entitled "An Act to authorize the President to increase temporarily the Military Estab- lishment of the United States." Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That during the present emergency all male persons, citizens of the United States and all male persons residing in the United States, who have, since the fifth day of June, nineteen hundred and seventeen, and on or before the day set for the registration by proclamation by the President, at- tained the age of twenty-one years, shaU be subject to registration in accordance with regulations to be prescribed by the President, and that upon proclamation by the President, stating the time and place of such registration, it shall be the duty of all such persons, except such persons as are exempt from registration under the Act of May eighteenth, nineteen hundred and seventeen, and any Act or Acts amendatory thereof, to present themselves for and submit to registration under the provisions of said Act approved May eight- eenth, nineteen hundred and seventeen, and they shall be registered in the same manner and subject to the same requirements and liabili- ties as those previously registered under the terms of said Act; Provided, That those persons registered under the provisions of this THE SELECTIVE SERVICE LAW 93 Act shaU be placed at the bottom of the list of those hable for mili- tary service, in the several classes to which they are assigned, under such rules and regulations as the President may prescribe. Sec. 2. That after the day set under section one hereof for the registration by proclamation by the President at such intervals as the President may froth time to time prescribe, the President may require that all male persons, citizens of the United States and all male persons residing in the United States, who have attained the age of twenty-one years since the last preceding date of registration, and on or before the next day set for the registration by proclamation by the President, except such persons as are exempt from registrar tion under the Act of May eighteenth, nineteen hundred and seven- teen, and any Act or Acts amendatory thereof, shall be registered in the same manner and subject to the same requirements and Habili- ties as those previously registered under the terms of said Act: Provided, That students who are preparing for the ministry in recog- nized theological or divinity schools, and students who are preparing for the practice of medicine and surgery in recognized medical schools, at the time of the approval of this Act shall be exempt from the selective draft prescribed in the Act of May eighteenth, nineteen hundred and seventeen. Sec. 3. That all such persons when registered shall be hable to military service and to draft under the terms of said Act approved May eighteBnth, nineteen hundred and seventeen, under such regulations as the President may prescribe not inconsistent with the terms of said Act. Sec. 4. That all such persons shall be subject to the terms and provisions and Uabilities of said Act approved May eighteenth, nineteen hundred and seventeen, in all respects as if they had been registered under the terms of said Act, and every such person shall be deemed to have notice of the requirements of said Act and of this joint resolution upon the pubhcation of any such proclamation by the President. Approved, May 20, 1918. 94 MILITARY LAW [Public — No. 210 — 65th Congress.] [H. R. 12731.] An Act Amending the Act entitled "An Act to authorize the President to increase temporarily the Military Establishment of the United States," approved May eighteenth, nineteen hundred and seventeen. Be it enacted by the Senate and House of Representatives ofthf United States of America in Congress assembled, That the second sentence of section two of the Act entitled " An Act to authorize the President to increase temporarily the Military Establishment of the United States," approved May eighteenth, nineteen hundred and seventeen, as amended, be, and is hereby, amended to read as follows: Such draft as herein provided, shall be based upon liability to military service of all male citizens and male persons residing in the United States, not alien enemies, who have declared their intention to become citizens, between the ages of eighteen and forty-five, both inclusive, and shall take place and be maintained under such regula- tions as the President may prescribe not inconsistent with the terms of this Act: Provided, That the President may draft such persons liable to military service in such sequence of ages and at such time or times as he may prescribe : Provided further, That a citizen or subject of a country neutral in the present war who has declared his intention to become a citizen of the United States shall be relieved from liability to military service upon his making a declaration, in accordance with such regulations as the President may prescribe, withdrawing his intention to become a citizen of the United States, which shall operate and be held to cancel his declaration of intention to become an American citizen, and he shall forever be debarred from becoming a citizen of the United States. Sec. 2. That the provision wherever occuring in section four of said Act, " persons engaged in industries, including agriculture, found to be necessary to the maintenance of the Military Establish- ment or the effective operation of the military forces or the main- tenance of national interest during the emergency," be, and is hereby j amended to read as follows: Persons engaged in industries, occupations, or emplo5Tnents, in- cluding agriculture, found to be necessary to the maintenance of the Military Establishment or the effective operation of the military forces or the maintenance of national interest during the emergency. THE SELECTIVE SERVICE LAW 95 Sec. 3. That section five of said Act be, and is hereby, amended to read as follows: That all male persons between the ages of eighteen and forty-five, both inclusive, shall be subject to registration in accordance with regulations to be prescribed by the President, and, upon proclama- tion by the President or other public notice given by him or by his direction stating the time or times and place or places of any such registration, it shall be the duty of all -persons of the designated ages, except officers and enlisted men of the Regular Army; ofiicers and enlisted men of the National Guard while in the service of the United States; officers of the Officers' Reserve Corps and enlisted men in the Enlisted Reserve Corps while in the service of the United States; officers and enlisted men of the Navy and Marine Corps; officers and enlisted and enrolled men in the Naval Reserve Force and Marine Corps Reserve while in the service of the United States; officers commissioned in the Army of the United States under the provisions of this Act; persons who, prior to any day set for regis- tration by the President hereunder, have registered under the terms of this Act or under the terms of the resolution entitled " Joint resolution providing for the registration for military service of all male persons citizens of the United States and aU male persons resid- ing in the United States who havej since the fifth day of June, nineteen hundred and seventeen, and on or before the day set for the registration by. proclamation by the President, attained the age of twenty-one years, in accordance with such rules and regulations as the President may prescribe under the terms of the Act approved May eighteenth, nineteen hundred and seventeen, entitled ' An Act to authorize the President to increase temporarily the Military Establishment of the United States,' " approved May twentieth, nineteen hundred and eighteen, whether called for service or not, and diplomatic representatives, technical attaches of foreign em- bassies and legations, consuls general, consuls, vice consuls, and consular agents of foreign countries, residing in the United States, who are not citizens of the United States to present themselves for and submit to registration under the provisions of this Act; and every such person shall be deemed to have notice of the requirements of this Act upon the pubhcation of any such proclamation or any such other public notice as aforesaid given by the President or by his 96 MILITARY LAW direction; and any person who shall wiUfuUy fail or refuse to present him self for registration or to submit thereto as herein provided shall be guilty of a misdemeanor and shall, upon conviction in a district court of the United States having jurisdiction thereof , be punished by imprisonment for not more than one year and shall thereupon be duly registered : Provided, That in the call of the docket precedence shall be given, in courts trjdng the same, to the trial of criminal pro- ceedings under this Act : Provided further, That persons shall be subject to registration as herein provided who shall have attained their eighteenth birthday and who shall not have attained their forty-sixth birthday on or before the day set for the registration in any such proclamation by the President or any such other pubhc notice given by him or by his direction, and all persons so registered shall be and remain subject to draft into the forces hereby authorized unless exempted or excused therefrom as in this Act provided: Provided further, That the President may at such intervals as he may desire from time to time require all male persons who have attained the age of eighteen years since the last precediilg date of registration and on or before the next date set for registration by proclamation by the President, except such persons as are exempt from registra- tion hereunder, to register in the same manner and subject to the same requirements and liabilities as those previously registered under the terms thereof : And provided further. That in the case of temporary absence from actual place of legal residence of any person liable to registration as provided herein, such registration may be made by mail under regulations to be prescribed by the President: And provided further. That men registered under the provisions of this Act who have served in the Navy of the United States shall, upon their own apphcation, be permitted to reenlist in the naval or marine service of the United States with and by the approval of the Secretary of the Navy. Sec. 4. That all men rendered available for induction into the military service of the United States through registration or draft heretofore or hereafter made pursuant to law, shall be liable to serv- ice in the Army or the Navy or the Marine Corps, and shall be allotted to the Army, the Navy, and the Marine Corps under regula- tions to be prescribed by the President: Provided, That all persons drafted and allotted to the Navy or the Marine Corps in pursuance THE SELECTIVE SERVICE LAW 97 hereof shall, from the date of aUotment, be subject to the laws and regulations governing the Navy and the Marine Corps, respectively. Sec. 5. That the wife of a soldier or sailor serving in the present war shall not be disqualified for any position or appointment under the Government because she is a married woman. Sec. 6. That soldiers, during the present emergency, regardless of age and existing law and regulations, shall be eligible to receive commissions in the Army of the United States. They shall likewise be eligible to admission to officers' schools under such rules and regu- lations as may be adopted for entrance to such schools, but shall not be barred therefrom or discriminated against on account of age. Sec. 7. That the Secretary of War is authorized to assign to educational institutions, for special and technical training, soldiers who enter the military service under the provisions of this Act in such numbers and under such regulations as he may prescribe; and is authorized to contract with such educational institutions for the subsistence, quarters, and miUtary and academic instruction of such soldiers. Sec. 8. That any person, under the age of twenty-one, who has served or shall hereafter serve in the Army of the United States during the present emergency, shall be entitled to the same rights under the homestead and other land and mineral entry laws, general or special, as those over twenty-one years of age now possess under said laws: Prodded, That any requirements as to establishment of residence within a limited time shall be suspended as to entry by such person until six months after his discharge from military service: Provided further, That applications for entry may be verified before any officer in the United States, or any foreign country, authorized to administer oaths by the laws of the State or Territory in which the land may be situated. Sec. 9. That hereafter, uniforms, accouterments, and equipment shall, upon the request of any officer of the Army or cadet at the Military Academy, be furnished by the Government at cost, subject to such restrictions and regulations as the Secretary of War may prescribe. Approved, August 31, 1918. CHAPTER VI JUDICIAL DECISIONS Matter of Falls, United States District Court, District op New Jersey, June, 1918. 250 Fed. — . Davis, district judge. Harry C. Falls, the petitioner, a citi- zen of the United States, apphed to the Bureau of the United States Army Transport Service, at its offices in New York City, which is under the quartermaster's department, for employment. Articles of agreement providing for the service of the petitioner were signed by him, and Captain J. J. Daw- son, Q. M., U. S. R., who was acting for the United States. Petitioner was then assigned to duty as chief cook upon the ship U. S. A. C. T., " Edward Luckenbach," which was lying at Bush Terminal, Brooklyn, and was engaged in transport- ing supplies for the United States Army. While occupying said position, and just before the said ship sailed for a foreign port, petitioner attempted to leave the ship with his baggage and desert the service, and refused to return thereto. He was arrested by the military police at the pier and was sent to Camp Merritt, N. J., where he was tried by court-martial. The result of the trial has not been announced pending the disposition of the writ of habeas corpus issued out of this court. The sole question to be decided is whether or not the petitioner " was a person serving with the armies of the United States in the field," and therefore " subject to military law " and trial by court-martial. Section 2 of the Articles of War classifies all persons who are " subject to military law." Included among the subdivisions there are: (a) Officers and soldiers, etc., belonging to the JUDICIAL DECISIONS 99 Regular Army. (6) Cadets, (c) Officers and soldiers of the Marine Corps when detached for services by order of the President, (d) Retainers to the camps, etc., including persons who in time of war are " serving with the armies of the United States in the field." (e)-All persons under sentence adjudged by court-martial. (/) All persons admitted into the Regular Army Soldiers' Home at Washington. A distinction is made between " the officers and soldiers " belonging to the Regular Army of the United States (sec. a) and serving " in" the army and " persons " accompanying or serving with the armies of the United States in the field. The former includes officers and soldiers, both volunteers and draftees, serving " in " the Regular Army; the latter includes all " retainers to the camp " and, in time of war, all " persons," including civilians as distinguished from " officers and soldiers," " accompany- ing or serving with the armies of the United States in the field." The former class refers to those " in " the service of the " Regular Army "; the latter to those serving " with " the armies of the United States " in the field " and not " in " the " Regular Army." A distinction is likewise made be- tween service " in the Regular Army " and service " in the field." Service in the Regular Army is performed by officers and soldiers in cantonments, fortifications, trenches etc.; service " in the field " is performed, in part at least, by civil- ians in any, place where their service is required for the good of the Regular Army. The latter service is subservient to the former and exists for it. The words "in the field" do not refer to land only, but to any place, whether on land or water, apart from permanent cantonments or fortifications, where military operations are being conducted (Ex parte Gerlach, 247 Fed., 616). The U. S. A. C. T., Edward Luckenbach, was engaged in transporting supplies for the army under the Quartermaster's Department of the United States Army. Carrying suppUes to equip and sustain the army is a very important military 100 MILITARY LAW operation in time of war. The petitioner, by a reasonable and natural interpretation of the Second Article of War is a per- son " serving with the armies of the United States in the field," and as such is in the same position with reference to trial by court-martial as any person belonging to one of the other classes enumerated in said article. Any other inter- pretation of the statute under all the facts would be unrea- sonable, illogical and disastrous " in time of war." It is unthinkable that Congress did not mean to include persons in the United States Army Transport Service, engaged in trans- porting our armies and sustaining them with equipment and supplies, in the class in time of war, of those " persons ac- companying or serving with the armies of the United States in the field." The petitioner, in my opinion, is a person " serving with the armies of the United States in the field," and is ." subject to military law." He may, therefore, be tried by court-martial on the charge that he " did, at Bush Terminal, Brooklyn, N. Y., on or about the 5th day of April, 1918, attempt to desert the service of the United States by leaving said ship with his baggage just before the hour set for sailing, and refusing to return thereto." The Fifty-eighth Article of War provides that: " Any per- son subject to miUtary law who deserts or attempts to desert the service of the United States shall, if the offense be com- mitted in time of war, suffer death or such other punishment as a court-martial may direct." It is claimed by the petitioner that the trial by court- martial in such case violates the provisions of the Fifth Amendment, and so is unconstitutional, in that it deprives him of a trial by jury on a presentment or indictment by a grand jury. The Fifth Amendment provides: " That no person shall be held to answer for a capital or otherwise infamous crime imless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces." JUDICIAL DECISIONS 101 This amendment in excepting " cases arising in tteland ' or naval forces " in effect says that in cases arising i^jfltee forces a person may be held to answer to a capital or obhe^^^^ wise infamous crime without a presentment or indictment ^ a grand jury; in other words such cases may be dealt with according to miUtary law (Runkle v. United States, 19 Ct. CI. R., 396; Kurtz v. Moffitt, 115 U. S., 487). It is provided in the constitution (Article I, § 8) that Congress has power "to make rules for the government and regulation of the land and naval forces." This power Congress has exercised in the Second Article of War by defining the various classes of persons who are sub- ject to miUtary law, and in the Fifty-eighth Article of War by declaring the punishment which may be imposed by a court-martial upon any one of those classes who deserts or attempts to desert the service of the United States. The cases — In re Grimley (137 U.S., 147), Tyler v. Pomeroy (8 Allen, 480), Ex -parte MilUgan (71 U. S., 2) — cited by counsel for petitioner arose out of a state of facts so unlike those in the case at bar as to make the language quoted there- from by coimsel inapplicable to the question before me. It follows from the conclusions reached that the military authorities had jurisdiction to try the petitioner by court- martial and the writ of habeas corpus must be dismissed. Cox V. Wood, Commandant of Camp Funston, in the State of Kansas, Supreme Court of the United States, May 6, 1918. 247 U. S., 3 Mr. Chief Justice White deUvered the opinion of the court. The appellant, conformably to the Selective Draft Law of May 18, 1917, c. 15, 40 Stat. 76, was called to compulsory military duty and in December, 1917, was engaged in per- forming it at Camp Fvmston, Kansas. On the third of that 102 MILITAEY LAW month, he petitioned for a writ of habeas corpus to be directed to the general commanding the camp to discharge him from further service. The ground of the petition was that, al- though Congress had the power to call the citizens of the United States, the national miUtia, to compulsory service in virtue of the mihtia clause of the Constitution (Article I, § 8), that power was limited to the character of services specified in the militia clause, viz: " To execute the laws of the Union, suppress insurrections and repel invasions." Further alleging that it had been officially declared that the call to service for which the draft had been made under the act was avowedly for the purpose of military duty in a foreign country, it was charged that the call was illegal and the right to the writ existed. Before the allowance of a rule on the petition, through the United States district attorney, the general who was named as respondent in the petition moved to dismiss because the facts alleged constituted no ground for the relief which was prayed and hence, as a return stating such facts would require a discharge of the rule for habeas corpus if issued, none should be ordered. On the 20th of December the matter was submitted by consent of the United States district attorney and the petitioner to the court for its action upon the petition and the motion to dismiss. On the 4th of January, 1918, the court sustained the motion of the district attorney and dismissed the petition. In the opinion by which this conclusion was sustained it was pointed out, conformably to the statement which we have made concern- ing the petition, that the " petitioner, after affirming the va- lidity of said Conscription Act of May 18, 1917, pleads what he calls his constitutional immunity from miUtary service beyond the territorial limits of the United States. Such claim of constitutional immunity rests upon the contention that no conscription act can be passed except under that part of § 8, Art. I, of the Constitution, which provides that ' The Congress shall have power ... to provide for calUng forth JUDICIAL DECISIONS 103 the militia to execute the laws of the Union, suppress insur- rections and repel invasions '...." On the day the judg- ment was rendered, January 4th, an appeal to this court was prayed and allowed, the assignments of error then made for that purpose reasserting the want of power in Congress to require a citizen to render compulsory miUtary service be- yond the territorial limits of the United States. When on December 3d the petition was filed in the lower court, various cases calling in question the constitutionality of the Selective Draft Law of May 18, 1917, were on the docket of this court and approaching hearing; and they were argued here on December 13th and 14th, before the decision below was rendered, January 4th' sustaining the motion to dismiss. Before that argimient, however, at the request of counsel for the present appellant, permission was given to file a brief in those cases as a friend of the court and such brief was filed and considered in passing upon the cases which were decided on January 7th, 1918. Selective Draft Law Cases, 245 U. S., 366. Coming to consider the elaborate contentions and argu- ments supporting them made in the present case, it is indis- putable that they all rest upon the assumption as to the exclusive character of the delegation made to Congress by the miUtia clause (Article I, § 8) and the restriction, as to the use of the miUtary force raised under such delegation, result- ing from the provisions in the clause relied upon, that is, the prohibition of compulsory service beyond the territorial limits of the United States. But we are of opinion that we are not now called upon to consider these contentions as a matter of original inquiry, because the fundamental mistake upon which all the arguments rest, and the error in the con- clusion which they are advanced to sustain, were pointed out and conclusively established by the decision sustaining the Selective Draft Law recently announced in the Selective Draft Law Cases, 245 U. S., 366. This result is apparent since 104 MILITARY LAW on the face of the opinion delivered in those cases the con- stitutional power of Congress to compel the military service which the assailed law commanded was based on the follow- ing propositions: (a) that the power of Congress to compel military service and the duty of the citizen to render when called for were derived from the authority given Congress by the Constitution to declare war and to raise armies. (&) That those powers were not quaUfied or restricted by the provisions of the mihtia clause, and hence the authority in the exercise of the war power to raise armies and use them when raised was not subject to limitations as to use of the miUtia, if any, deduced from the mihtia clause. And (c) that from these principles it also follows that the power to call for mihtary duty under the authority to declare war and raise armies and the duty of the citizen to serve when called were coterminous with the constitutional grant from which the authority was derived and knew no limit deduced from a separate, and for the purpose of the war power, wholly incidental, if not irre- levant and subordinate, provision concerning the miUtia, found in the Constitution. Our duty to afhrm is therefore made clear. Affirmed. PBIN7ED AT THE HABVABD UNIVEBBITT PBESS^ CAAIBBIDGB, HABS., U. B. A. f ] i-.^' ^